Town of Mount Desert to Acadia National Park: Return land you took illegally from Otter Creek

OTHER NEWS: Bar Harbor, Sidman file briefs in cruise ship lawsuit; COA's public embrace of Ocean Properties questioned

OTTER CREEK, Oct. 7, 2023 - The Town of Mount Desert, long a quiet refuge for wealthy summer people who co-existed in harmony with the local year-rounders, now rivals its noisy neighbor to the north for headline-grabbing acrimony almost on a weekly basis.

The tension and conflict have been there for a century, as documented by Charles W. Eliot’s 1928 report on “The Future of Mount Desert Island,” in which he keenly observed:

“There has been marked divergence of opinion during recent years concerning the development of the Park and other public lands. On the one hand are the Conservatives, who object to all change and development, decrying the construction of roads as desecration of the solitude, wilderness, natural character and ‘scale’ of the Island.

“On the other hand is a group who wish to make all the unusual scenic features of the Island readily accessible by road and who are impressed with the responsibility of the Park management to the great American public.

“Between these two extremes, moderate opinions are held by a large number of permanent and summer residents,” wrote the former Harvard president.

This summer, however, the Band-Aid was ripped off. The differences between the wealthy summer residents and the year-rounders became an abyss.

Wednesday night, the Planning Board will resume its debate between the lawyered-up half percenters who don’t want to share their slice of paradise with working folk and those seeking to develop affordable housing in the village of Northeast Harbor

More recently, to the dismay of many residents, the Friends of Acadia pressured the select board to allow it to monopolize the town green for an entire week next August so they may indulge in their annual bacchanal. (Wasn’t the estate of the doyenne of Patrician homemaking, Martha Stewart, available? She demolished a 17-room mansion to build herself a swimming pool. So space should not have been an issue.)

Again, the prescient Eliot anticipated this. He urged the towns to consider “the permanent resident of the Island whose income is largely dependent on the summer business.

“The beauty of the Island and the Park, and the resort character of the community, are his (sic) most important assets. He not only lives with the problems involved more continuously than do the members of any other group, but also has the voting power to materially affect the manner of their solution.”

This week, as if on cue, the permanent residents spoke out, as represented by Town Manager Durlin Lunt.

In a remarkable letter, Lunt asked U.S. Sen. Susan Collins to urge the National Park Service to recognize “the need to work closely with the Town of Mount Desert to begin the process of addressing past injustices to the village of Otter Creek.”

Lunt stated a bill of particulars dating back to when the park was founded in 1919 as the Lafayette National Park.

“Through such actions as denying the right of vehicular egress to the water through the Blackwoods Campground, denying access to fresh water at the shores, refusing to allow vista clearing at the Town Landing, construction of a causeway on the Park Loop Road, with limited tidal flushing capacity with the stated intent of turning the harbor of Otter Creek into a swimming pool - a bitter irony for an agency charged with the preservation of natural resources - and withholding the rights of Otter Creek residents to full access to and the ability to maintain traditional and historical village roads and paths.”

Ever pragmatic, Lunt is putting aside some of the more challenging issues for a simpler ask for now:

Give the town back 3,000 square feet of land taken illegally by the park so it may construct a vehicle turn-around to allow Otter Creek residents use of the Town Landing in the inner harbor.

Photo provided by town manager of Otter Creek landing

It’s a small step, but loaded with significance for the Common Man such as Steve Smith, protector of his lineage and proud defender of families who were here long before there was a park. (Smith is not about to get an invite any time soon to the FOA party.)

No, Smith is more likely found fishing for lobsters from a rowboat out of Otter Cove.

He has been dubbed the unofficial mayor of Otter Creek, and a local hero, for his unapologetic takedown of The Man, which in this case would be the behemoth called Acadia National Park.

He and the authorities have also jousted over the Otter Creek Fish House, another longtime point of contention after the park essentially choked off access by buying up all the land around it.

Steve Smith and others have long claimed that when the fish shack was deeded to the Otter Creek Aid Society by a private land owner in 1983, the gift included the adjacent wharf and boat slip. But Acadia officials maintained that all of the property outside the footprint of the house belongs to the park.

Photo by Dick Broom of the Islander

In 2009, the park removed a portion of the wharf after determining that it was dilapidated and unsafe. Smith rebuilt it, but the park said that was not allowed.

“Mr. Smith’s records and our records disagree on a number of things, including ownership of the land,” Acadia’s Deputy Superintendent Mike Madell said at a meeting of the Mount Desert Board of Selectmen in August 2016, according to the Islander.

“It’s our contention that it is federal property beyond the footprint [of the fish shack], so there is no basis for legally permitting a rebuild of (the wharf).”

Lunt said when the Hancock County Preservation of Public Land Trust was created, “it was with the understanding they would not impinge on arable lands which were needed by the inhabitants to maintain themselves and their families. Similarly, they did not envision that access to the waterfront would be impinged. It was their intention to allow the inhabitants of the village of Otter Creek to continue unfettered access to the waterfront.

“Acadia National Park is the only Park in the National Park Service which exists primarily as the result of gifts of land donated by citizens. Many descendants of those citizens still inhabit the lands of their ancestors. As such they deserve and need the protections originally envisioned for them.”

This is not a fight the current park administration is eager to undertake. It has other more pressing priorities.

Lunt said he met in the spring with park Superintendent Kevin Schneider and Deputy Superintendent Brandon Bies to discuss the proposed project. “Neither voiced objections to the concept. Indeed, I have always found both gentlemen to be helpful and cooperative.”

But Lunt said the town is not willing to agree to a “land swap.”

In his mind, this is a reparation.

In his letter to Collins, Lunt wrote, “Traditionally a swap of land has been necessary to acquire property within the park boundary. In this instance we request your assistance so that a transfer of land may be accomplished without a donation back from Mount Desert.

“A history of the process of land acquisition from the village of Otter Creek, along with the understanding of the Trustees for Public Land Reservations that there would be policies of consideration for Otter Creek inhabitants as a first priority when the lands were transferred to what was known in 1916 as Lafayette National park (there are Trustee Papers that state these intentions) leads the Town of Mount Desert to believe that this is a fair and reasonable request.”

Cruise ship lawsuit enters final stage as defendants file briefs

BAR HARBOR - The town and citizen petitioner Charles Sidman sang from the same hymnal in court briefs filed late last night in which they defended citizens’ right to regulate how land is used in their own town.

A group of local businesses and marine pilots are challenging a land-use ordinance adopted by voters last November to fine any landowner who allows their property to disembark passengers exceeding a daily cap of 1,000 visitors.

“The Ordinance is not preempted by any federal law. Rather, the Ordinance is a valid exercise of local police power that reaches ‘landward’ and only regulates how land within the Town is used,” wrote Portland attorneys for Sidman, Curtis Thaxter LLC, in a 45-page brief.

“Second, the Ordinance does not violate the Commerce Clause because it does not discriminate against or burden interstate or foreign commerce and serves legitimate interests of improving the health, safety, and welfare of the Town.

"The claim by regional ship pilots that the ordinance is “preempted by Maine’s pilotage and tourism law - are fatally flawed, as they improperly put the onus of sustaining broad policy goals on a small coastal town while ignoring the Town’s fundamental authority to regulate the use of land within its boundaries,” Curtis Thaxter wrote.

“Plaintiffs essentially argue that the 58 percent of Bar Harbor voters who voted in favor of the Ordinance are unreasonable for wanting a change in their Town.

“At trial, Plaintiffs employed the same strategy that failed with the voters of attempting to portray an apocalyptic future if the Ordinance is enforced: cruise ship tourism will screech to a halt, businesses will be forced to close their doors, the Pilots will not be able to adapt, and cruise lines will be unwilling to visit any port in the Northeast.

“Plaintiffs were unable to show that these hyperbolic fantasies are anything more than conjecture.

“The evidence at trial established that the Ordinance only threatens the preferences, not the rights, of the cruise ship industry and the few businesses that most profit from it. Plaintiff businesses prefer to have lunch rushes caused by cruise ship visitation. Cruise lines prefer to visit Bar Harbor over other ports in Maine.

“Cruise lines prefer to maximize cruise ship size and occupancy. The Pilots prefer to receive an increased bonus attributable to cruise ship visitation to Bar Harbor.

“None of these preferences are guaranteed by the Constitution or federal or state law.”

The town’s attorney, Rudman Winchell, allayed any fears from citizens that it would not defend the town vigorously, even though its client, the Town Council, opposed the ordinance.

In an eloquently written 55-page brief, Rudman Winchell concluded,

“The Supreme Court has long recognized, and recently reaffirmed, the usual legislative power of a State to act upon persons and property within the limits of its own territory, a feature of our constitutional order that allows different communities to live with different local standards.

“This case represents an effort by a narrow subset of local business interests, to view the Constitution as a cudgel, to force upon the people of Bar Harbor their chosen method of doing business, no matter its local costs.

“If, as a matter of business judgment, certain cruise lines decide not to do business in Bar Harbor, because the town has chosen to protect its citizens by limiting the number of daily disembarkation to 1,000, that is their choice.

“Cruise Lines - or local business interests that have chosen to tie their fortunes to cruise lines - potentially reevaluating their chosen business models based on local land use controls is not an event of constitutional significance.

“The logical endpoint of the plaintiffs’ and pilots’ case is that the Constitution requires coastal jurisdictions like Bar Harbor to allow ‘any good service or activity within their borders if those products have a significant interstate or international market.’

“But the constitutional does not and has never required any such thing. Rather, the Constitution envisions interplay between federal, state and local regulation of commerce and navigation, with federal law giving states and municipalities a wide berth to exercise their traditional police powers.

“If Congress, in the exercise of his legislative judgment, wishes to displace some portion of those state and local powers, it may do so. In the face of congressional silence, however, a clear showing a conflict with federal law or protectionist discrimination against interstate commerce is required before the Constitution is implicated. No such showing has been made in this case.”

Lawyers for the plaintiffs will have another chance to rebut before Judge Lance Walker makes his decision. Walker has indicated he would rely heavily on the written arguments after a three-day trial in July.

COA, Ocean Properties - Bar Harbor’s strange bedfellows

BAR HARBOR - What an odd couple, one the putative guardian of “human ecology” and the other, an enabler of the foulest pollution made by man.

Consider this juxtaposition Monday, when the College of the Atlantic hosts prospective students at its annual fall open house - a “two-day event designed to give you and your family as much helpful information, beautiful scenery, and delicious food as possible,” according to the COA website.

Does the beautiful scenery include the cruise ships Seabourn Quest with 450 lower-berth passengers and Liberty of the Seas with 4,375 passengers? They will be anchored and in full view from COA’s campus. On Tuesday, they will be replaced by the Emerald Princess with 3,577 passengers who will be shuttled back and forth to the private docks and on tenders owned by Ocean Properties.

Luckily for the students, the southwest wind will blow the fouled air from the smokestacks away from Bar Harbor.

Chances are the prospective students will not be given a briefing on the history of cruise ships in town and COA’s role in it, such as in 2019 when it joined the industry to oppose an ordinance putting limits on the size of ships at a proposed town pier.

COA director of planning and building, Millard Dority, who is the chair of the town’s Planning Board, wrote an email to the entire COA community - faculty, staff and students - to urge them to vote against the ordinance, claiming it would “probably” make the COA pier “non-conforming” and restrict its use.

That resulted in a condemnation by citizen petitioner Charles Sidman, who emailed COA President Darron Collins stating Dority’s email “clearly aligns COA with the wealthy, privileged and powerful who reject any constraint whatsoever.

“The Citizens’ Initiative concerns a matter of deep social and environmental significance, that should in fact have COA’s support rather than covert opposition.”

Sidman also warned COA not to put its non-profit status at risk by taking sides on political issues.

Around the time Bar Harbor was debating the pier, Ocean Properties owner Mark Walsh began a series of political donations to Florida Gov. Ron DeSantis which would ultimately total nearly $1 million, according to the Miami Herald.

Walsh led a business group, which included the Florida Harbor Pilots Association, Disney Cruise lines and the Florida Restaurant and Lodging Association, to lobby DeSantis to overrule cruise ship limits approved by voters of the City of Key West, the Herald reported.

Shortly after Walsh’s political donations, DeSantis signed into law legislation to take away Key West’s home rule authority and voided its limits on ships.

Three years later Ocean Properties borrowed the Key West playbook and created Association to Preserve and Protect Local Livelihoods and is challenging Bar Harbor’s home rule authority in a federal lawsuit (see above).

Amid all this, COA President Darron Collins found time Sept. 25 to publicly thank Ocean Properties in a letter to the Islander for housing its students during a room shortage.

“This is not the first time that the folks at Ocean Properties have come to our aid. During the pandemic, when we needed to find safe and comfortable isolation space for students with COVID, Ocean Properties Director of Operations for Mount Desert Island Eben Salvatore made several apartments, as well as rooms in otherwise unoccupied hotels (during the off season), available to us.

“Without that assistance, we could have been in real trouble, both logistically and financially. The organization has also been a big supporter of COA Allied Whale, our marine mammal research wing. We are grateful for the ongoing support.”

(He didn’t mention that ship strikes are a major cause of whale deaths.)

Collins is serving out his last year as COA president. COA has had hundreds, if not thousands of donors, including me, who did not get a letter in the Islander thanking us.

Collins did not return a request for comment for this article.

Sidman said COA is a “wolf in sheeps’ clothing” and that publicly associating its brand with that of Ocean Properties is an abuse of its “position, power and community trust.”

TRIBUTE: Loretia M. "Rita" Tripp

1930 - 2023

OTTER CREEK - Loretia M. Tripp, 92, passed away peacefully on October 3rd, 2023, her son Bruce Tripp and granddaughter Caresse were by her side. Rita was born in Northeast Harbor to Richard and Clara (Reed) Murphy on October 5th,1930.

Rita Married Walter Tripp in 1947 and they lived in Otter Creek all 54 years of marriage. Rita loved her walks from the end of Walls Street through the ledges to Otter Creek Beach. She lay in the sun at low tide on the giant rock that would appear. She was a happy yard sale shopper and an avid reader.

To the very end, even with her mind betraying her, Rita would light up at the image of a child, and she always adored babies. Rita worked at a few jobs in her life, but the one she loved most was at the Otter Creek Grocery Store/Post office. She loved learning all the rules for running the post office. That store let her talk to all her neighbors and the campers that came in from Black Woods Campground. She loved telling them all about the island and how she grew up here. It's hard to say how many people's lives she influenced in her life. She would tear up hearing all the wonderful stories from people about she touched their lives. It's bittersweet seeing her go, but knowing she needed to, knowing her suffering is over and she is free to run through the woods, splash in the waves, and soak in the sun again, surrounded by family and friends, impatiently waiting for the rest of us to stop dallying c'mon, catch up.

Rita is survived by her family; oldest daughter, Brenda Kinter and husband Robert, only son Bruce Tripp (Susan, gone to soon). She has 5 grandchildren, Dale Lawrence, Eric Parsons, Melanie Mace and husband Travis, Caresse Hanson, Jennica Piecuch, and husband Steve; 5 great grandchildren, Shelby and Courtney Lawrence, Samantha and Tysen Mace, and Mila Piecuch; 5 great-great, grandchildren; Ryder Cyr, twin brothers Hudson and Tucker Childs, and Crew and Wren Childs. She was predeceased by all siblings, Maitland, Joyce, Leland, and Gail as well as her beloved husband Walter, daughter Bonnie Tripp, and daughter in law, Susan Tripp.

Graveside Services will be held 12:30 pm, October 21, 2023, at Otter Creek Cemetery, Otter Creek.

Those who desire may make contributions in Rita’s memory to the Susan Tripp Scholarship Fund at the First National Bank of Bar Harbor.

Condolences may be expressed at www.jordanfernald.com