SPECIAL REPORT: Plaintiffs use erroneous Acadia attendance figures to justify claim

BAR HARBOR, Dec. 5, 2022 - Plaintiffs seeking to overturn the cruise ship visitor cap used erroneous and inflated Acadia National Park attendance figures to bolster their claim that passengers make up less than 10 percent of park attendance.

It is one of several exaggerated claims in the lawsuit.

Another is that the town discriminates against cruise ship passengers “but not visitors arriving by any other conveyance.”

In fact the town in 2019 implemented paid parking in downtown to better control land-based visitors and to raise revenue to maintain its infrastructure. Then in 2021 town voters approved an ordinance to cap vacation rentals until they far below 10 percent of the housing stock.

The plaintiffs’ selective use of information is apparent in other sections, such as invoking a 2017 study by University of Maine economists Todd Gabe and James McConnon on the financial benefit of cruise ships while ignoring another study in 2019 showing the benefit to be half of what was earlier reported. Portland Press Herald reporter Colin Woodard, the best journalist in Maine and author of “The Lobster Coast,” reported on the latter study which was conveniently left off the town website by previous town manager Cornell Knight. https://www.pressherald.com/2019/08/26/cruise-ship-spending-lower-than-first-reported/

The QSJ first wrote about the misuse of Acadia attendance numbers in March 2021 as it became common practice to conflate visits with “visitors.”

The plaintiffs compared the 249,080 cruise ship passengers on 158 ships scheduled to call on Bar Harbor in 2019 to the 3,437,286 “recreation visitors” to Acadia National Park in 2019. “Those visitors arrived strictly from land-based transportation,” it stated, having not subtracted the cruise ship passengers from the total.

“For comparison, the total reserved cruise ship passengers are less than 10% (only 7.2%) of the land - based recreation visitors documented by Acadia National Park for 2019,” the lawsuit stated.

That assertion is incorrect. The 3,437,286 number was an estimate - and potentially a bad one - of the number of “visits” in 2019. Theoretically, 68,745 persons could visit the park 50 times a year to get to that number, or 100,000 persons 34.4 times.

Park spokesman John Kelly and town council member Matt Hochman have frequently reminded people that “visits” are not the same as “visitors.” The park officially identifies a visitors as “an individual who may generate one or more visits,” Kelly stated in an email.

Kelly said the park service itself is among the worst violators, often conflating “visitors” and “visits” in its publicly disseminated information such as the promotional graphic below:

And here below the NPS clearly used the term, “recreational visitors” in its most recent report of annual visits which allowed the plaintiffs to repeat it in the lawsuit:

https://irma.nps.gov/STATS/SSRSReports/Park%20Specific%20Reports/Annual%20Park%20Recreation%20Visitation%20(1904%20-%20Last%20Calendar%20Year)?Park=ACAD

Kelly admitted the report was in error and asked to have the label be corrected to “recreation visits.”

Both Kelly and plaintiff Eben Salvatore sit on the town’s cruise ship committee where Kelly has been insisting members understand the difference between visits and visitors, especially Salvatore, who chaired the committee from 2015 to 2022.

Acadia uses a complicated system of counting cars at its Sand Beach location to passengers on the Islander bus service to extrapolate an estimate of visits. Kelly has said that the park assumes three persons in a car visiting Acadia.

Kurt Repanshek, who writes the National Parks Traveler blog and perhaps the most authoritative voice on NPS doings, wrote in 2019:

“Another year of estimated visitation numbers has been released by the National Park Service. As unreliable, unhelpful, and unsustainable as the numbers are, the head counts should be tossed aside.

Two years ago Kelly told the QSJ that he and other park officials believe the number of “visitors” annually is between 750,000 and 1.1 million. A cohort of 250,000 to 300,000 passengers as part of those visitors is much larger than 7.2 percent.

Moreover, not all park visitors come to Bar Harbor. ANP reported that in 2022, there were 195,320 persons who camped in the park. Not a single one was in Bar Harbor.

Schoodic Point, which is not even on Mount Desert Island, gets about 10 percent of the total visits. So why should we assume all that attendance is relevant to Bar Harbor?

The three towns on MDI outside of Bar Harbor have more short-term vacation rentals than Bar Harbor. So why should we assume the renters all come into Bar Harbor?

One fact is indisputable: Every passenger who disembarks comes though a narrow egress on Ocean Properties’ docks, and then proceeds to West Street, Lower Main Street and Cottage Street before spreading elsewhere to create a swarm of humanity.

Obviously, the plaintiffs prefer comparing passengers to as large a universe as they can get away with, to de-emphasize the impact of cruise ship visits on Downtown Bar Harbor.

Even language in the lawsuit admits to this concern, stating that the industry and the town agreed to a cap in 2008 of 5,500 passengers a day, because, “it was important to minimize impacts that additional visitors to the area might have during periods of time that were already busy with land based visitors.”

Lawyers for the town will have ample opportunity to challenge the claims in the lawsuit, including “discovery” of significant details of Ocean Properties’ business operations. The town’s attorney is a small Bangor firm more accustomed to land-use and zoning fights. One area where Rudman Winchell may need additional counsel is in federal law, pertaining to interstate and foreign commerce.

“Federal commerce-clause jurisdiction to regulate ocean ports is pretty complete,” stated one legal expert who asked he not be identified.

“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. 

Article I, Sec. 9, includes the following:

                    "No preference shall be given by any regulation of commerce or revenue

                    to the ports of one state over those of another; nor shall vessels bound to,

                    or from, one state, be obliged to enter, clear, or pay duties in another."

The town is on a short leash. It has 21 days to seek an extension of the request by the plaintiffs for an injunction. The town has only 60 days to state its full defense.

The lawsuit was well written and organized. It included several affidavits from named principals to position the cruise ship-dependent businesses as the underdogs in this fight. It will require much work to deconstruct this narrative.

The lawsuit against the town had plenty of advance notice which begs the question of why Town Manager Kevin Sutherland waited until now to act. Lawyers for the plaintiffs sent Sutherland a letter in July stating its objections to the citizens petition to cap cruise ship visitors to 1,000, including most of the points stated in the lawsuit.

At the council meeting Tuesday, resident and inn owner Anna Durand said, “I'm here to say the Association to Preserve and Protect Local Livelihoods (lawsuit plaintiffs) does not speak for us. Nobody owes me a living as a tourism-based business owner. Tourism is not low risk, high reward. It is high risk, high reward.

“The owners of the businesses who have come to rely on cruise passengers were not promised a living or a profit when they chose their livelihoods. We all could have been teachers or landscapers or lawyers.”

“Suing the voters when a decision goes against your choice should not be the new normal. I urge this council to look at the big picture as you decide whether to fight or settle this lawsuit. There might well be justifiable reasons for either choice. I get that.

“But if you choose to fight, bring the thunder, get back up from the state and from groups that care about the ocean, sustainable development and responsible tourism. That the community can't restrict, regulate or deny access to extractive industries, Maine is doomed. Strip mining, industrial fish farms and the cruise industry will roll through the state like a plague of locusts. Do not go gently into that good night.”