APPLL businesses claim ordinance would impair constitutional right to travel; trial over, briefs next

Other news: Sutherland lands job in Newcastle; SWH residents want better police hiring methods

BANGOR, July 15, 2023 - The APPLL plaintiffs suing the town have positioned themselves as victims of discrimination similar to historically disadvantaged citizens who won critical court victories to travel freely between the states based on the Interstate Commerce Act of 1887.

In a three-day federal trial which ended Thursday here, lawyers for Association to Preserve and Protect Local Livelihoods invoked the landmark Supreme Court decision of November 1941, Edwards Vs. California, which struck down a state law making it a crime to transport “indigents” into California.

Called the “anti-Okie” statute, the law was intended to restrict thousands of “Dust Bowl” migrants coming into California to seek employment and welfare.

World War II broke out less than a month after the court decision, which had no practical effect because men and women went to war or to factories producing ships and planes, many of them in California.

But the case went on to have a significant impact on the enfranchisement of the right of African Americans to travel freely across state lines, especially in the former Confederate states, as many cases cited Edwards Vs. California as precedence. (APPLL was roundly criticized at the annual town meeting in June for its “Bar Harbor for All” PR campaign as a cynical exploitation of hard-won rights by civil rights groups.)

There are major differences between Edwards Vs. California and APPLL Vs. the Town of Bar Harbor.

Not a single named plaintiff in APPLL is actually an aggrieved traveler, or a carrier, unlike Fred Edwards, the lay preacher in Marysville, California, who drove to Texas in 1939 and returned with his unemployed brother-in-law. He was tried, convicted and given a six-month suspended sentence.

APPLL plaintiffs consist of locally based vendors who seek to profit off of the visitors.

The QSJ contacted some attorneys with expertise in interstate commerce who questioned whether that issue can be raised by local businesses, or has to be raised by potential cruise ship visitors and/or the cruise lines. 

“I am surprised the plaintiffs are limited to local businesses,” stated one attorney. “It shouldn't be that hard to get a cruise line and a frustrated traveler to join as plaintiffs, and it would dispose of the issue of standing to raise the issue of discrimination against seafarers.”

Also, this isn’t the late 18th Century (although you wouldn’t know that from the current SCOTUS), when modes of transportation were limited.

In 1789, the ports were the nation's only access for foreign trade and provided the only export opportunities for local businesses. “The framers had reason to worry about ocean-front states using their ability to control commerce through their ports to discriminate against landlocked states,” said one constitution lawyer.

“Federal statutes (according to the complaint) permit consideration of conditions created by ‘local waters,’ but it is unclear from the complaint if that consideration is up to the feds or local government or whether ‘local waters’ includes shoreside burdens,” one lawyer told the QSJ.

Today, visitors may come to Bar Harbor by plane, car, bus, private yacht, fishing boat, canoe, kayak, ferry or even on a bike, as interim town manager Sarah Gilbert pointed out in her testimony Thursday. Each of those travel modes has a capacity, such as landing rights at the airport, parking, anchorage in an extremely crowded harbor and even foot traffic.

Acadia National Park limits the vehicular traffic to the peak at Cadillac Mountain. The FAA, which did not exist in 1887, regulates the number of landings at Bar Harbor Airport. The town began paid parking in 2019 to regulate car traffic. Citizens here approved an amendment to the land use ordinance in 2021 to limit short-term rentals.

A year later, 1,780 citizens - 58 percent of those who voted - approved limiting cruise ship visitors to 1,000 a day, the ordinance which is being challenged by APPLL.

A similar challenge to the short-term rental cap was rejected by a Maine superior court judge in April. Judge Robert Murray ruled in favor of the town against a lawsuit which claimed the amendment required a two-thirds supermajority approval by voters. The decision is being appealed.

Nothing in the passenger cap ordinance being challenged prevents individuals from coming to Bar Harbor by other means if a cruise ship is unavailing. But in each mode of transportation there are physical limits imposed by various authorities.

The three-day trial this week was a helter skelter affair, because of the number of parties involved and those with conflicting interest even on the same side.

Fifteen lawyers and support staff were present. The plaintiffs had three lawyers from the Washington, D.C. firm of Thompson Coburn, specialists in constitutional law who even flew in a litigator from its St. Louis office. Each half hour lunch break probably cost $10,000 in total billable hours.

The judge, Lance Walker, seemed to sense that this was going to be a messy affair, so he ordered that opening and closing arguments be contained in written briefs to be filed over the next several months. Allowing time for both sides to rebut, the decision will be rendered by Thanksgiving soonest, and perhaps could be a Christmas gift for one side.

The quick-witted Walker was an efficient manager of the clock, with a temperate judicial demeanor gently prodding the lawyers on both sides when they overreached like when the plaintiffs’ lawyers repeatedly badgered Town Manager Sarah Gilbert and Town Council chair Val Peacock and when the intervenor lawyer sought to make his client, lead petitioner Charles Sidman, an “expert rebuttal witness” which only wasted time.

Plaintiffs’ attorneys questioned whether Sidman had the expertise to challenge the 2009 study by Todd Gabe from the University of Maine on the economic benefits of cruise ships. Sidman’s lawyer would have been better off citing another academic Ross Klein of Memorial University in Newfoundland, who wrote four books on the “dark side of the cruise industry.” He has testified in front of the U.S. Senate.

Because growth in ship size has also reduced ticket prices, cruise lines have a strong incentive to capture as much of their passengers’ spending as possible, Klein said.

“For the industry, the more money that’s spent ashore, the less money will be spent on board,” Klein told Colin Woodard of the Portland Press Herald, author of The Lobster Coast. “They want there to be so much to do on their ships that passengers won’t want to get off at port.”

Michael Vogel of Germany’s Bremerhaven University Institute for Maritime Tourism discovered that between 2001 and 2014 cruise lines faced declining revenue per passenger cruise day, the result of having to reduce ticket prices to keep ships full. Indeed the tickets – which include on-board food and entertainment – no longer cover the lines’ costs, Vogel found, “which has made them dependent on on-board purchases for profitability, giving them an incentive to sell more merchandise, drinks, premium meals and highly marked-up shore excursion packages from them."

Woodard’s own research questioned the claims made by UMaine’s Gabe Todd.

In June 2018, Woodard wrote this seminal article on Bar Harbor’s experience with cruise ships in which restaurant owner Kristi Bond told him “the ships have been good for business,” though the crowds they create often scare other customers away from her restaurant.

“A lot of them are just irritated and want to get away from the area,” she was quoted as saying, despite the town’s fall season cap of 5,000 (sic) passengers a day. “What
we’re doing now is not going to work much longer, because it’s already
bursting at the seams.”

Five years later Bond is suing the town as president of APPLL.

She attended this week’s trial in Bangor, along with other APPLL board members.

The three days were not evenly divided. The plaintiffs got to call witnesses for two full days, and the defense only one. The plaintiff lawyers tried to boil the ocean, serving up every issue it could muster, short of asking the court clerk to testify on the weather forecast.

The search for reasons to appeal was obvious. Sadly, too many trials these days are just a preamble to an appeal. Will Lance Walker rule on the evidence? Or will he rule on whether he will be overturned by the Circuit Court of Appeals in Boston?

As the QSJ reported earlier, Walker was the first judge to rule in favor of the lobstermen in their fight against onerous federal Right Whale rules. He was overturned by the Boston circuit court but recently won support from the D.C. circuit court where the case eventually landed. The ruling in favor of the lobstermen borrowed heavily from Walker’s line of reasoning.

Having covered courts since I was 25, the plaintiffs would have been wise to make a few important points instead of throwing everything in but the kitchen sink - “boiling the ocean.”

Is economics an issue or not? The plaintiffs have spoken on both sides of this question. It wasn’t important when they refused Sidman’s discovery request for financial proof that a cruise ship cap was going to cause them great harm. But now, they are saying the opposite.

Former council chair Paul Paradis, perhaps unwittingly, became the first local business owner to disclose his financials, assuming that his declarations were accurate.

Myth of the ‘shoulder season’

Paradis testified on Wednesday how the town in 2007 started to recruit cruise ships to help build business during the “shoulder season” to supplement revenue which traditionally dried up on Labor Day.

“Summer visitors coming by car - they (businesses) had no control over when those visitors would show up. The opposite is true for cruise ships, allowing business managers to ‘plan and manage’ their arrival.” As council member, Paradis and the town worked to figure out a way to excise fees from car visitors. It was much easier, they found, to exact cruise ship fees.

How much revenue was brought in from cruise ship fees? Paradis: “One mil give or take.” Cruise ship fees “made a difference of somewhere around 10 percent, back of the napkin calculation… of the town budget.”

(This is the trope commonly bandied about in town without precision. The actual cruise ship fees total about $900,000. Fifteen years ago, it was significantly less. When referring to “town budget,” what exactly was Paradis talking about? The FY24 town budget is about $25 million, including about $7 million to the schools and capital projects of about $6 million. Even if Paradis was referring to the budget supported only by the general fund, the cruise ship revenue would make up only about 2 percent.)

Paradis’s hardware store rarely provides services and products to cruise ship passengers, he testified. Without the success of other businesses, his business can’t succeed. “Without their success we have no success.”

“Our business tends to lag the economy by a year,” said Paradis about cruise ships as an indicator. “I use it for a guide as to what’s coming.

“Next year they’re going to be making improvements, painting things, fixing things, and I need to be gearing up.”

Was the effort to broaden business to the shoulder season successful?

“From the standpoint of my business … yes.” When he took over the business, sales were in the mid $600,000, and it had two year-round employees. Today, it generates around $3.6 million, which sustains the owner and 14 year-round employees in “good-paying jobs”which he attributes to cruise ship visits as “a large part of developing fall business.”

In cross examination, the town’s attorney Alison Economy asked about the increased visitation at Acadia National Park and its impact on the shoulder season.

“One helped develop the other,” Paradis said without specifics.

No one bothered to submit the park’s actual data, which showed the explosive growth of visitors starting around the same time the town began to recruit cruise ships and which easily cured the shoulder season problem by itself.

Park visits in September and October 2007 totaled 634,549. The same two months in 2022 totaled 1,218,938. September 2022 had 697,292 visits, compared with 544,892 in August 2007. In other words, the shoulder season is now eclipsing the shank of the season 15 years ago. That first occurred in September 2016 when 570,434 visits were reported. The fall season in the park is now consistently topping the traffic of July and August of 2007.

Other fact-free claims by APPLL included that cruise ship passengers account for less than 10 percent of the visitors to the town.

How did it come up with that? No one knows how many tourists visit the town in any given year. But APPLL asserted that claim in declarative and decisive language in its court complaint.

Let us try using some available numbers to extrapolate a reasonable estimate.

Let us start with the 290,000 passengers in the lower berth of the cruise ships which visited in 2019. Using the industry’s own estimation that some ships can have as many crew members as a the third of the passengers, we’ll add 75,000 crew and upper berth passengers to the total.

The best bench mark for estimating visitors is the park’s own number of “visits” which is often confused with “visitors.” Park officials estimate roughly that a typical visitor makes three visits to the park.

In 2019, the park reported 3,437,286 visits. Dividing that by three gives us 1,145,762 visitors, not all of whom visited Bar Harbor. Let’s assume 1 million came into Bar Harbor. The 365,000 passengers and crew estimated above would constitute 37 percent.

So where did APPLL come up with the under 10 percent number for passengers?

(Under questioning from Bobby Papazian, counsel for petitioner Charles Sidman, Paradis also admitted he attended multiple cruise ship conventions in Miami, San Francisco “and maybe one or two others and many within the state” all paid for by industry’s fees into the cruise ship fund.)

‘Persons’ or ‘passengers”

On Thursday, it was disclosed that the town is proposing to change the definition of “persons” to “passengers” which would have the effect of not counting the crew in the 1,000 daily visitor cap, to which Charles Sidman, the lead petitioner, stated he would not oppose the change.

Gilbert wrote to the town council May 31, “As directed by the Council, and following discussion with the Town Attorney, the proposed rules will also clarify the meaning of the term ‘persons.’”

Specifically, to avoid potential conflict with federal law, the proposed rules will provide that ‘persons’ refers to passengers” and not the crew.”

That brought a series of mocking questions from plaintiff lawyer John Kingston asking Gilbert whether the town would define all passengers wearing blue or “every fifth passenger” as a “person.” Kingston later compared the passenger cap akin to allowing a motorist to drive into town but not get out of his car.

Outlandish statements were not isolated to Kingston. Timothy Woodcock, attorney for APPLL, posited in a question to Sidman whether people with disabilities prefer cruises to other types of vacations. Sidman had used a photo of a tourist wearing a ship lanyard as the only way to tell whether tourists were land-based or from cruise ships. The person with the lanyard happened to be using a walker.

All the sturm and drang aside, the court decision is straight forward: Does a large majority of voters who regard cruise ships as a public nuisance have a constitutional right to govern their town, as the federal and state governments have it their jurisdictions?

No one knows what will happen either way the ruling is decided. If APPLL wins, will the current 4,000-passenger cap between the town and the cruise lines continue? Or will the industry bring in as many passengers it wants.

If the town wins, will the council actually enforce a 1,000-passenger cap, or will it continue with current operations because the case will no doubt be appealed?

Several witnesses, including Seth Libby, chair of the Warrant Committee, testified that they believe the town will eventually settle at a higher number than the 1,000.

For more detailed coverage of the trial, here are the Islander’s articles.

QSJ intern Lucie Nolden contributed to the above article

Kevin Sutherland named interim town manager in Newcastle

Former Bar Harbor Town Manager Kevin Sutherland on the left

BAR HARBOR - Former Town manger Kevin Sutherland, who left under unexplained circumstances five months ago, has been named interim town manager of the town of Newcastle in Southern Maine. Newcastle has about one third the population of Bar Harbor.

Here are videos of his first two select board meetings in Newcastle.

Sutherland has a three-month engagement. The salary for the town manager is $90,000 as posted on the Newcastle website. That’s about $30,000 less than his salary in Bar Harbor.

Even though he no longer works here, his legacy is still being felt.

At the cruise ship trial in Bangor this week, Sutherland was the most referenced name by both parties. Yet, he was not deposed by either side for testimony.

It was disclosed that he, without Town Council knowledge, worked with Cruise Maine, the industry PR consultant, to draft a flyer attacking the citizens petition for a 1,000-visitor cruise ship cap and distributed only days before the vote last November.

Council chair Val Peacock testified that she had no idea Sutherland engaged the Cruise Maine to construct a flyer urging voters to reject the citizens petition, Article 3.

“I didn’t help write it. I didn’t see it beforehand,” Peacock testified. “I found out about it afterward.” She also said the flyer was intended to educate people about cruise ship visitation and not intended as “advocacy.” (Anyone who can read may decided for themselves.)

Kevin Sutherland was paid about $183,000 for his year’s of work for the Town of Bar Harbor, according to documents obtained by the QSJ through a Freedom of Access request.

Sutherland served just under 13 months as town manager. His contracted salary was $118,000 for 2022. In January he was given a choice by the Town Council to sign a separation agreement by Jan. 25 at 5 p.m. or forfeit the offer of 28 weeks of pay and benefits as severance. Sutherland signed it in time.

Here is Sutherland’s original contract and his separation agreement:

https://drive.google.com/file/d/1d75ZXr4ygiTRLgwKZVHR2YDTpCKyNy7p/view?usp=sharing

The QSJ asked Peacock, who signed the separation agreement on behalf of the town, “How do you justify a 28-week severance for someone who worked only 55 weeks while you're in the process of levying a double digit increase on taxpayers?”

Peacock did not respond as she hasn’t to any of my questions the past two years.

The council engaged in an executive session after the regular council meeting Monday Jan. 23 to discuss Sutherland’s performance with the town lawyer attending.

The QSJ posted Jan. 28 a video of Sutherland’s disclosing the town’s legal strategies and other ways it could be sued to the town’s cruise ship committee, some of whom are named plaintiffs in a lawsuit against the town’s visitation cap for cruise ships.

The QSJ also reported last week that Sutherland left the town with an FY24 budget calling for a 15.5 percent tax increase. The council eventually passed a budget with an 11 percent increase.

Previously, the QSJ reported on Sutherland’s record in his city administrator’s position in Saco where he was cited by the Maine Human Right Commission for violating employment rights and on disclosures in the Islander that he owed his job to the law firm Eaton Peabody’s search division. Eaton Peabody is the firm suing the town for its passenger cap.

Residents call out SWH select board for not addressing police hire

SOUTHWEST HARBOR - The newest member of the select board, Chapin McFarland, who is a fire fighter in the town of Mount Desert, offered that the town consider adopting the neighboring town’s procedure for the select board to approve all future police hires.

Mount Desert Town Manager Durlin Lunt confirmed that the hiring of all town employees must be approved by the select board of that town, which abuts Southwest Harbor.

McFarland’s comment was the only substantive recommendation Tuesday night as several residents criticized the select board for not coming forth with any proposal to earn back the public’s trust after Police Chief John Hall was forced July 3 to terminate officer Richard Strout, who was fired from Machias in 2011 and was the subject of three lawsuit accusing him of assaulting and inappropriately touching women while placing them under arrest.

Member Luke Damon said, “Anybody can be accused of anything. And when it's cleared by the courts, that's the best that I can go on.

“Anything after that is hearsay,” he said.

In a court of law, hearsay is a legal term. Hearsay testimony may be barred if a lawyer challenges its validity. Damon is not a lawyer. Moreover, the board’s sole reference point about the three lawsuits apparently was a newspaper article.

Resident Brad Jordan, who runs a kayak business only feet away from the select board meeting in the firehouse, said the article incorrectly stated the cases were “dismissed” as some of them might have been settled. Jordan said he knows other women and friends who have had similar experiences with Strout.

“This background check clearly didn't do its job. Somebody didn't do their job,” Jordan said.

Jordan claimed there are more than 100 people with similar accusations against Strout.

“So if you're checking everywhere that this man has lived, there's a lot of accusations not even just in the state,” he said, adding that it took him just one Facebook posting to unearth the extent of Strout’s record.

Resident Donald Sullivan, a member of the Harbor Committee, asked for Chief Hall to resign, calling Strout’s behavior “disgusting.”

“I want his (Hall’s) resignation. He's supposed to be the steward of this town and he hired that piece of crap? It's unacceptable … absolutely unacceptable.”

(The select board asked Chief Hall to speak first, but in more than a half hour he provided little detail about the hire and only minutiae of the application process.)

Cutting the rug with a jug down at the Asticou

NORTHEAST HARBOR - In 1984 I was spun around the deck at the Asticou Inn by an octogenarian who asked me to dance. It turned out she was the mother of the publisher of the Boston Globe, where I was assistant business editor at the time. She was definitely leading me.

The Asticou Inn, for many years had run Thursday night dinner dances on its veranda with famous musicians like Mike Carney and other Jazz band leaders taking the stage.

Over time, the dances became more appealing to the younger set and so the evenings became a standard event often frequented by young adults and their families. It was a nice way to spend an evening out with some fine dining and dancing. As we moved into the '00's and early '10's the dance's appeal seemed to lessen and they were discontinued for a time. Perhaps, but not documented as the reason for their demise, was because the Asticou hotel patrons wanted a good night's sleep before their next day's activity, (be it hiking, swimming or biking in Acadia National Park).

Then last year, the dances were resurrected. The usual big band or jazz trio was replaced with a combined local and summer resident group appropriately called “The Seal Harbor Boys.”

J.B. Harrison, (guitar and vocals), Bob Hipkens, (dobro, guitar & vocals), Beau Lisy, (percussion), Tom Newhall, (mandolin, guitar and lead vocals), Asa Phillips, (guitar and vocals), and David Putnam, (guitar and harmonica), created a group who loved to get together just for fun to make music. The band actually had its beginnings at “music night” jams at the home of Asa Phillips, playing folk and rock tunes for their friends and guests.

On Wednesday, July 19, at the Asticou, the band will open with a number of golden oldies for the foxtrot and waltz crowd playing songs like “There's a Small Hotel”, “Bye bye  Blackbird”, “Slow Boat to China” and “The Rainbow Connection”.

Then faster paced music will provide the bulk of the night's dances including music from artists like the Beatles, the Rolling Stones, Lynyrd Skynryd, Van Morrison, Bob Marley, Wilson Pickett, the Temptations, the Ronettes, the Everly Brothers, Roy Orbison, Eric Clapton, Bob Dylan, Elvis Presley & J.J. Cale to name just a few.

Cocktails will commence at 6:00 PM, with a buffet. Music is scheduled to follow starting at 7:45 PM and will continue until about 11:00 PM.

The cost for dinner and dancing is $175/person. And if you'd just prefer to come for the dancing the price is $50/person. Jackets and ties are requested for men. Cocktail attire for women.

To reserve a spot, contact the Asticou Inn at (207) 276 -3344.

Beech Hill Cross Road to close for 2 weeks

SOMESVILLE - The Town of Mount Desert is replacing the undersized and aging metal culverts that convey Denning Brook under Beech Hill Cross Road near the intersection of Route 102, south of Somesville.

Construction by R.F. Jordan & Son’s will begin on Monday July 17 and extend through Aug. 3.

During construction, Beech Hill Cross Road will be closed to traffic which will detour via Pretty Marsh Road and Beech Hill Road (see map). There will likely be some continued construction in the project area beyond August 3, but it is anticipated that a road closure will not be required after then. Questions should be directed to Public Works Director, Brian Henkel, at 276-5743 or director@mtdesert.org