Judge pushes for speedier resolution of cruise ship lawsuit, sets new timetable
OTHER NEWS: Backup to DTE emerges for PERC; Mount Desert to hire Ellsworth deputy finance director; tribute to ASC founder Jim Clunan
BAR HARBOR - United States District Court Judge Lance Walker is moving the ping pong table out of his courtroom.
Not even 24 hours after the latest rebuttal filed by defendants in the lawsuit against the town’s cap on cruise ship, Walker had had enough of the back and forth which has clogged his inbox since the end of a three-day trial July 13.
The coup de grace was the “rebuttal” brief Oct. 27 filed by the plaintiffs, which totaled 205 pages, including 199 pages of exhibits.
The legal rules of engagement allow both sides to file briefs and then rebuttals, typically giving each side almost a month to respond.
But the swiftness of Judge Walker’s order this week suggested to some parties that he is eager to bring the matter to closure.
After the defendants - the Town of Bar Harbor and citizen petitioner Charles Sidman - filed their last rebuttal Wednesday at 6:05 p.m., Judge Walker the next day ordered all parties to make their final arguments by Thursday, and then he would rule on them by Nov. 13.
The defendants’ last rebuttal asked the judge to throw out a good chunk of the plaintiffs’ Oct. 27 brief because it contained new claims instead of hewing to the already argued points in the three-day trial in July.
After settling these latest skirmishes, Judge Walker presumably would then consider the real question: Does the Town of Bar Harbor have the right to use its land use ordinance to impose a cap on the number of people who may disembark on property regulated by the town as it does on room capacity at hotels and vacation rental homes?
Some now believe Judge Walker’s final ruling on the case may come before Christmas. It is the most anticipated lawsuit in this town’s history, with no less than four law firms, including one in Washington, D.C., in a pitched battle over whether the town could cap cruise ship visits.
After the trial July 13, Judge Walker invited all sides to file written briefs, and so they did.
The Plaintiffs - the handful of restaurants, shops, the tender service for the cruise ships and the pilots who guide those ships into port for a fee - filed four documents totaling 166 pages in early September.
The defendants one month later were a bit more deferential. Their briefs totaled only 145 pages.
The plaintiffs argued that seaborne visitors are different because federal law protects their Constitutional right to engage in commerce across state lines.
Both side have made blunders. The lawyer for citizen petitioner Charles Sidman wasted an entire afternoon calling on witnesses who said the same thing: that cruise ships adversely affected their quality of life.
Judge Walker put a stop to that so that the remaining time of the three-day trial could be put to better use.
The plaintiffs lawyers, on the other hand, had a consistent argument - that the denial of cruise ship visits was a denial of a Constitutional right. How they stretched that right to a handful of restaurants, ship pilots and, of course, the biggest beneficiary - Ocean Properties, which owns the only dock to disembark those passengers - is at the crux of this case.
The plaintiffs took a scorched earth approach, throwing everything at the judge hoping something would stick. One judicial observer commented the Oct. 27 filing was “a typical overdone brief, apparently written according to the standard ‘if it's worth doing, it's worth overdoing.’”
Judge Walker added Sidman as a defendant intervenor after he argued the town could not be trusted to defend citizens with vigor.
As it turned out, attorneys for the town wrote a compelling brief making cogent, substantive points, and Rudman Winchell’s star litigator Allison A. Economy was true to her name in marking the opponent with swift and efficient challenges to show her prowess around a courtroom.
This week, in a letter in the Islander, Sidman took exception at how the plaintiffs “repeatedly and wrongfully” targeted and maligned him personally as “the single author of the unwelcome initiative.”
What if the plaintiffs win?
Judge Walker is a federal judge in District 1, which covers five New England states. Connecticut is in District 2, which is predominantly New York.
A decision in favor of the plaintiffs could affect other municipalities along the New England coast which have banned cruise ships, such as the other three towns on MDI.
In September 2016, the 205-passenger Pearl Mist sailed into Northeast Harbor ripping up fishing gear before it unloaded its passengers who jammed its one-way Main Street. That brought a swift reaction.
But if the judge agrees that ship-borne visitors have a right to conduct unfettered interstate commerce, how would Northeast Harbor defend itself? The village is one of six in the Town of Mount Desert, whose law firm, Eaton Peabody, is the one suing Bar Harbor.
Eaton Peabody asserted that cruise ships already are changing their itineraries to avoid Bar Harbor starting in 2025, as evidence that the defendants’ true intent is to eliminate their visits and not just to regulate traffic on land.
The matter is complicated by an alternative cruise ship visitation plan implemented by former Town Manager Kevin Sutherland which was the result of his memorandum of agreement with Cruise Lines International Association, even though citizens did not embrace it.
After APPLL filed its lawsuit in late December 2022, Sutherland moved to implement his 4,000-a-day cap while ignoring the 1,000-a-day cap voted on by citizens on Nov. 8, 2022. That cap “grandfathered” ships booked before March 17, 2022, the date the petition was filed. Sutherland was let go by the town in January, 2023.
The combination of Sutherland’s and the citizens’ plans calls for 103 ships to visit in 2024, as opposed to 137 in 2023. Almost 60 ships are on a waiting list for 2024. Only 56 of those booked were grandfathered. Sidman said if the citizens win the suit, he would challenge the 47 bookings under Sutherland’s MOA for 2024.
For 2025, there are only 32 grandfathered bookings. The MOA called for the terms to be renegotiated at the end of 2024.
If APPLL wins the lawsuit, there would be no cap, and presumably Bar Harbor will be open to all. There is no telling whether the town has the stomach for an appeal.
What if the town wins?
For certain, APPLL will appeal if the town wins the lawsuit. The appellate court is the District 1 Circuit Court in Boston.
But even if APPLL appeals, it would have been dealt a big blow unless it can convince the Circuit Court to issue a stay.
Without a stay, the appeal could take more than a year, during which time cruise lines will have developed alternative itineraries which will be difficult to reverse in a short time because the industry has such long lead times.
The Town Council and Sidman are negotiating language for the rules of implementing the 1,000-a-day cap. With the approaching winter, the town will have plenty of time to get that right.
Is it too late for a settlement? I always liked the Val Peacock plan best, back when the council chair was just a member in 2021. She articulated a 2,500-a-day cap. Given Sidman’s agreement to allow crew members to be counted above the 1,000-day cap, are we really that far from 2,500?
Most of the APPLL plaintiffs are the restaurants and shop owners who would still do a robust business from passengers with a 2,500-a-day cap.
The big loser in such a scenario would be the tender operator. But even there, with price increases, Ocean Properties could recover much of the loss.
Judge Walker could influence that outcome, if he suggests strongly on Nov. 13 that the parties best reach a settlement.
Florida firm said to bid for PERC if DTE fails again
ORRINGTON, Nov. 2, 2023 - The Florida firm Marc David Green Solutions has made a backup bid to acquire the incinerator here, according to Town Manager Chris Backman.
Deltas Thermo Energy, the company which failed to raise the funding to operate the Waste-to-energy plan in Hampden in 2021, was the apparent low bidder Thursday to acquire the Penobscot Energy Recovery Company.
DTE won the bid at $1.5 million and paid the required $50,000 with a certified check. But all eyes are on the company to see if it will make the deadline this week for another $100,000 for a 10 percent total deposit.
It will then have until Nov. 22 to close the $1.5 million transaction.
But that will be just the beginning of the cost, insiders say. Backman estimated that it will take at least $1 million to remove 10,000 tons of garbage on the plant floor and to restart operations. The plant has suffered from years of deferred maintenance and multiple shut downs.
Marc David Green, AKA MD Power, uses low burning technology to transform garbage into reusable gas. Backman said the company told him it would need $10 million to restart the plant and to refit it with its gasification technology.
Backman said the company told the owner, 36th Street Capital in Morristown, N.J. that he needed 90 days to raise the full $1.5 million.
The town is owed $600,000 in back taxes which must be paid by any acquirer of the plant, Backman said.
The history of the sector known as “waste management” in these parts is as colorful and unfailingly as odorous as the subject matter - garbage.
One man who promised everything and delivered nothing in 2021 to restart the shuttered plant in Hampden, returned this week like a Phoenix to win the bid to acquire PERC, which was a lifeline to the region while the Hampden plant lay dormant.
But winning the bid at an auction is one thing. Actually delivering the cash - $1.5 million - is another matter, one that tripped up Robert Van Naarden after he won the rights to operate Hampden before it was disclosed he didn’t even have the money to pay the utilities, not to mention paying for the acquisition.
He was stripped of his operational rights while the 115-town Municipal Review Committee scrambled to keep the plant heated in the winter while arranging to buy the plant from the bondholders.
Today, the Hampden has a new owner, Innovative Resource Recovery, which is working to restart the plant by 2025. Unless the PERC is re-activated, the region’s garbage will be headed to landfill for at least the next two years.
Mount Desert hiring new finance director
NORTHEAST HARBOR - Another graduate of Texas State University is about to become the next finance director, replacing Jay Wright, who also held an accounting degree from TSU.
Mae Wyler is the deputy finance director in Ellsworth. Pending select board approval Monday night, she will start Nov. 13.
Town Manager Durlin Lunt’s recommendation stated, “Ellsworth has a budget similar in size and complexity to Mount Desert. Mae has experience in resolving audit discrepancies, tax law, vendor payments, and budgeting. She is familiar with MUNIS software through her experience in Ellsworth.”
She graduated magna cum laude in May 2021, according to her Linked-in page. She’s from Madison, Wisconsin. She now lives in Franklin, Lunt said.
Wyler is familiar with Mount Desert. She is a member of Friends of Acadia. In September 2022 she won the raffle at a FOA social event at the Terramor in Bar Harbor.
Wright started as controller of MDI Bio Labs last month after serving as the town’s finance director for two years and six months.
Maine songwriter’s music video supporting consumer-owned utility ballot initiative
BELFAST – Songwriter Sara Trunzo has released her latest single and music video, “Taking My Power Back,” which was inspired by the May 2021 LD 1708 hearings that resulted in the creation of Pine Tree Power.
On Tuesday, As Maine voters consider eight referendums, Question 3 offers a chance to reshape the energy landscape in Maine,
PTP seeks to establish a publicly owned utility that will acquire assets from Central Maine Power and Versant Power, entities responsible for distributing 97 percent of the state's electricity.
“This initiative represents a significant opportunity for Maine residents to reclaim ownership of their power grid which is hugely unreliable, expensive, and owned by foreign entities,” Pine Tree Power stated.
“With a total campaign contribution of almost $40 million from the opposition, contrasted with just over $1 million from proponents, the financial divide underscores the significance of this decision.”
Trunzo's concern for food access and hunger relief led her to support Question 3, because of its potential to improve the lives of working households.
"Stories from Mainers grappling with the cost, transparency, service and environmental effects of the current utility have been profoundly moving to hear," said Trunzo.
“Taking My Power Back,” was produced and mixed by Nashville-based Rachael Moore, and accompanied by a music video conceived, filmed and edited by Phoebe Parker, and features actor Leslie Stein with animations by visual artist Calla King-Clements – all Maine-based talents.
Pine Tree Power advocates for:
Local control over their power grid
Affordable rates and programs that will keep the lights on in hard times
A reliable grid that is continually reinvested in and maintained
Clean energy transition and a climate-ready grid
TRIBUTE: Jim Clunan, founder, first president of Acadia Senior College
MOUNT DESERT - Acadia Senior College's remarkable founder, Jim Clunan, died Oct. 30 in Virginia Beach surrounded by his family, ASC announced.
“It is a testament to Jim and Dorothy's planning and perseverance that ASC is still thriving today. Together they created a wonderful community of lifelong friendships and learning. As many of us know, Jim had a magic way of ‘encouraging’ people to participate and volunteer!”
Anne Clunan, Jim's daughter, wrote: "We will be having a celebration of our parents' lives on MDI this coming summer. We hope you and all their friends will be able to participate and share stories. As you know, that was one of our parents' favorite past-times."
See the funeral on Youtube:
He was honored June 14, 2021 by the college. Here was Ann Caswell’s account in the Islander:
“It all began more than 20 years ago, when Jim Clunan, recently retired from a career in the U.S. Foreign Service, attended a current events class at a fledgling senior college at the University of Southern Maine. Excited about the idea of a college for people in the third half of their lives, Jim mentioned the concept to his then ex-wife, Dorothy, who challenged Jim to start a college on Mount Desert Island, saying she would help him. That was when Jim knew “they were back together again.” Acadia Senior College brought them back to one another, which, in Jim’s words, “was the greatest gift it could bear.”
Southwest Harbor police officer saves owl
On Facebook, Southwest Harbor Police reported Officer Michael Boucher happened upon a car Friday night with its 4 ways flashing. He got out to assist, and the driver brought him this sweet little Saw-Whet owl that had struck their car. It's now in a box, in a cool, dark place here at the office, waiting for Maine Game Warden Eric Rudolph to come get it and take it to a rehabber. But not before a quick picture!
Let's pray that Judge Walker finds in favor of the Town of Bar Harbor. The cruise ship companies don't care about the Island, the park or the environment. One look at the ship in the picture above tells you how out of place these giant floating cities are in Bar Harbor and anywhere around the island.
Estimated ‘23 cruise ship visitor count is 239,000.
‘22 Acadia National Park visitation was 3.97 M.
If the town of Bar Harbor and Mount Desert Island are at risk of over-enjoyment, simple math suggests that .06% of total is not the genuine reason.