Court decision is shot heard around the cruise ship world; Sitka, Alaska first to react
Last of a series of analysis of the cruise ship court decision
BAR HARBOR, March 10, 2024 - It would be the ultimate, dark irony if Judge Lance Walker’s transformative decision Feb. 29 ended up to be more impactful in the far reaches of the Republic - like Alaska - than in the Maine town for which it was intended.
The day after Judge Walker’s issued his ruling, activists in Sitka, Alaska, invoked it to compel that town to implement a similar cruise ship passenger cap.
“Local advocates for a limit on cruise ship numbers say the Thursday U.S. District Court decision in favor of the Maine town of Bar Harbor indicates that Sitka could impose a similar, legally enforceable cap or limitations on cruise ship visitors to this community,” reported the Sitka Sentinel on March 1.
A few days later, similar groups in Juneau, Alaska, seized upon the news to plot how the ruling could benefit their efforts as well to curb cruise ship visitation.
Juneau made news a year ago when the city and cruise lines agreed on a voluntary limit of no more than five cruise ships in port a day. Not everyone was happy with that outcome. Now, citizens are hoping to use Judge Walker’s decisions to pressure for more restrictions.
Cruise lines all over the world, including its major trade organization, the Cruise Lines International Association, have dialed into the Maine decision and are pondering its implications, insider sources said.
(Cruise ship visitation is about half of Alaska’s total tourism, unlike Maine, where cruise ships are more concentrated in two ports, Bar Harbor and Portland.)
The day before Walker’s ruling, a group called Small Town SOUL (Save Our Unique Lifestyle), announced its formation to “eliminate excessive cruise tourism” in Sitka.
The next day came the unexpected manna from Walker, which caught Larry Edwards by surprise. He is one of the organization’s founders and board member.
“It was a solid win all the way around,” Edwards told the Sitka Sentinel. Edwards had tried twice to have a city election on limiting cruise visitors. Both of Edwards’ initiative petition applications were rejected by the city clerk.
The citizens in Alaska faced the same resistance from local officials as their counterparts in Bar Harbor, where the Town Council took just two days after Walker’s ruling to delay enforcement of the 1,000-a-day passenger cap to the 2025 season and to allow a full schedule of cruise ship visits this year.
That brought this reaction from lead citizen petitioner Charles Sidman, who was credited by Walker as having played a pivotal role in his finding on behalf of the ordinance approved overwhelmingly by citizens on Nov. 8, 2022.
“I'm appalled that they (councilors) took it upon themselves to rewrite the law that the citizens voted on. So I'm checking with attorneys and we will see how we react to that,” Sidman said in an interview.
If the council isn’t thoughtful about this, it could find itself fielding multiple lawsuits, Sidman said.
Sidman said that his and the town’s attorneys have been cooperating on a defense strategy since Walker admitted Sidman as a “intervenor defendant” in April 2023.
“This doesn’t mean we’re still not going to work together,” Sidman said,
“But this (councilors’ unilateral delay of execution) introduces a very confrontational element. They say they're working and upholding and then they’re violating and changing … you can't do that.”
“They can't take it into their own hands .. it's written (in the town code) that they can't do that.
“A law that's voted on - this zoning ordinance - can only be changed by a subsequent vote of the citizens,” Sidman said.
He filed a petition with the required 300 signatures on March 17, 2022 to place the citizens question on the ballot in a special election Nov. 8, 2022, when 1,780 citizens (58 percent) voted to amend the town’s land-use ordinance to forbid property owners from disembarking more than 1,000 passengers in total a day.
The ordinance stated the effective date would be retroactive to March 17, 2022.
Local pundits cannot recall another case where the town failed to implement within 30 days any previous amendment to the land-use ordinance approved by voters, who are the ultimate authority to make such changes, cumbersome as that might be. That’s the law provided by town charter.
In fact, all the enforcement rules are already in place - courtesy of a council task force which included the harbor master, code enforcement officer and the former interim town manager.
History shows that the town council is simply too passive a challenger to the cruise ship hegemony no matter who is at the helm - chairs Paul Paradis, Gary Friedmann, Jeff Dobbs or Val Peacock.
This is a body constitutionally unable to perform any act except appeasement at the altar of the tourism god. Who was the first to thank the council for delaying implementation of the citizens ordinance until 2025? Kristi Bond, chair of the board of APPLL, which is suing the town.
Why not, she just was gifted an entire year to strategize on how best to exploit the council’s latest largesse.
“Cancelling the bulk of the 2024 season now would be fundamentally unfair, would potentially expose the Town to additional legal liabilities, and would have a drastic fiscal impact on an already strained and nearly complete municipal budget,” the council stated in a press release.
It did not elaborate for whom cancelling the 2024 would be “unfair?” Certainly not to the 1,780 citizens who voted in the ordinance.
What if some of those citizens brought legal action against the town, APPLL and cruise lines for violating a town ordinance which provides for a fine of $100 per violation per day?
Did the council consider that its action could trigger lawsuits from multiple directions?
The town attorney, Stephen Wagner of Rudman Winchell, has already racked up more than a quarter million dollars in legal fees with the town paying for many of his mistakes.
For instance, it was Wagner who joined forces in early 2023 with APPLL to implement the memoranda of agreement proffered by the cruise lines for a weak daily cap of 4,000 passengers which was soundly rejected by the town, in exchange for APPLL not to seek an injunction.
It was also Wagner who refused to work with Sidman’ lawyers and instead joined with APPLL to oppose Sidman’s petition to join as an “intervenor defender” which Walker approved. How many billable hours did Wagner rack up with those empty maneuvers in the first three months of 2023?
Wagner finally cooperated with Sidman but only because he had no choice.
None of this inconvenient history has stopped Rudman Winchell to take credit for Judge Walker’s decision like its post (below) March 1 on Facebook. To be fair, its litigator Allison Economy was the star of the three-day trial in July. Since then she has left Rudman Winchell to work for Versant Power.
Bar Harbor may be on its way to squandering its hard-won decision in federal court. But that would be part of a consistent pattern of appeasement to the moneyed tourism industry which shows no abatement from past practices.
FOOTNOTE:
Previous articles in series:
How will Bar Harbor respond to historic cruise ship ruling by federal judge?
Winners and losers from historic ruling
Highlights of ordinance, Article 3, approved Nov. 8, 2022 by 1,780 Bar Harbor citizens:
Summary: The amendment, with a retroactive date of March 17, 2022, will limit the number of persons allowed to disembark in Bar Harbor from cruise ships to a maximum of 1,000 per day.
The Harbor Master will develop rules and regulations to include, but not limited to, a cruise ship disembarkation reservation system, a daily counting and tracking system for persons disembarking, and a violation reporting system.
The Code Enforcement Officer will be responsible for enforcement of the disembarkation daily limit. Pursuant to the rules and regulations developed by the Harbor Master, property owners will be required to secure a written permit from the Code Enforcement Officer for any person disembarking from a cruise ship on, over, or across their land. The Harbor Master will report violations to the Code Enforcement Officer.
Each disembarking person exceeding the daily limit will constitute a specific violation resulting in a minimum civil penalty of $100 per person.
Notwithstanding 1 M.R.S. § 302, and regardless of the date on which it is approved by the voters, this subsection will be applicable as of March 17, 2022, and shall govern any and all applications for permits or approvals required under this subsection that were or have been pending before any officer, board, or agency of the Town of Bar Harbor on or at any time after March 17, 2022; provided, however, that the Town will not take any enforcement action under this subsection with regard to any cruise ship visits occurring prior to the date of adoption by voters at Town Meeting.
I absolutely detest the large cruise ships but I also think it is a fair decision by the town to allow this season to go forward as scheduled.
I'll be happy to one day see the parking enforcement officers actually doing the jobs they signed up for instead of being crosswalk attendants for cruise tourons every other day.
ThankYou Charles Sidman.
And ThankYou Lincoln Millstein. Your updates are very helpful.
I would so like to know what % of Bar Harbor's budget is spent on legal fees. And have a line by line accounting of the billable hours.
Of course Council pet Kevin Sutherland is the gift that keeps on giving - to special interests like APPL profiteer Bond. He snuck a whole bunch of cruise ships onto the schedule and it looks like we're stuck with them coming. But that doesn't mean elements of the law can't be enforced. And fines paid. Surely the companies knew what they were sailing into and hedged their bets on Sutherland's handout paying off. They lost that bet. OK they don't want to hurt their brand by cancelling but let them pay up through their bottom line.