Winners and losers from historic cruise ship ruling capping passenger visits

Second in a series of analysis of the cruise ship court decision

BAR HARBOR - Success has many fathers. Failure is an orphan.

Fanning away the fog of revisionist history, the winners and losers from last week’s extraordinary legal victory over the cruise ship industry are clear. The winners now own the strong hand of having vanquished the singular self interest of the business people who lost more than just a lawsuit. Their reputations lay in tatters, and flail about against a stiff wind which will push against their every move from here onward.

Don’t count on the local “historical” society to record with any proper equanimity the rightful place in history of last week’s quake-inducing event when U.S. District Court Judge Lance Walker ruled in favor of the 1,000-passenger cap imposed by voters.

For posterity’s sake and in the interest of truth-telling, here is my take from someone who’s been covering this since February 2022, when maritime lawyer Sandy Welte first put a fright into a already diffident Town Council, which had been warned that being too aggressive against the industry could result in heavy damages if the town loses.

BIGGEST WINNERS: Citizens of Bar Harbor and their pied piper Charles Sidman, who now heads the town’s Mount Rushmore of citizen activists, along with Dessa Dancy and Jake Jagel, Dennis Bracale and the late Art Greif, each of whom expended great personal sacrifice and expense to fight a wayward council in the courts for more than a decade. In an interview last year, Sidman said he viewed cruise ships as a cancer eating the town, “promoted by parasitic and self-interested business interests from the endless political pontificating of the Town Council that never did anything except kick the can down the road. In this struggle, it has become apparent that our very democracy in this small town is under severe threat.  The cruise ship struggle has become part of a much more fundamental issue, that fully merits all the attention and assistance I can give it, in the interests of every present and future resident of our unique town.  I believe that I am giving voice to sentiments that are broadly held within our community, but that many are reluctant to express themselves.” Sidman has three degrees from Harvard, including a PhD, and an MBA from the University of Cincinnati. He is an investor in technology startups. His wife runs an art shop in town.

WINNER: Councilor Gary Friedmann, who is the longest serving member of the council along with Matt Hochman. Friedmann was an understudy to former council chair Paul Paradis, who helped fortify Bar Harbor’s “shoulder season” by wooing cruise ships to come here en masse in the fall, which grew to become the busiest season and was wildly successful. Friedmann served a short stint as chair himself. But starting in 2019, the first season where cruise ship passengers truly took over the town, Friedmann changed his thinking. In January 2021 he pushed the council to conduct a survey of citizens’ attitude toward cruise ships. Released in June 2021, the survey found that 63 percent of 1,378 respondents felt there were too many cruise ships. A majority responded that cruise ships gave the town a negative image. None of the citizens initiatives against cruise ship visitation would have been possible without the 2021 survey which formed the foundation for later action, including the clumsy attempt by the council to limit passenger visits to 4,000 a day.

WINNER: Councilor Joe Minutolo, the bike shop owner who acknowledged publicly that while he benefits economically from cruise ship visits, his first loyalty was to his beloved Bar Harbor, where he grew up, and to maintain its balance as a small, New England seaside community with more than just a tourism sensibility. Minutolo openly challenged the council’s proposed memorandum of agreement with cruise lines. He and Friedmann were the only two who voted against it, and by doing so essentially favored the citizens’ proposed 1,000 daily passenger cap. To anyone who would listen, Minutolo openly rooted for the judge to side with the citizens.

WINNER: MOTHER EARTH. Large cruise ships may yet find plenty of friendlier ports to visit, but with one stroke of his pen, Judge Lance Walker made it less likely that Mount Desert Island will continue to emasculate its carbon footprint by allowing large ships to park inside our harbors. Besides discharging of waste into the sea, cruise ships are among the worst air polluters on the plant, emitting noxious fumes from burning cheap diesel fuel. About 70 percent of their power need is for propulsion, getting to and from a harbor. The 179 ships which visited Bar Harbor in 2019 easily eclipsed the power use of the entire island of MDI for an entire year. In 2017, an analysis by an environmental group found that ships operated by Carnival emitted ten times more sulphur oxide into the air than all 260 million cars in Europe.

At a public hearing in Rockland in 2018, industry consultant Amy Powers pointed out that cruise ship water-quality tests conducted by the MDI Biological Laboratory around Frenchman Bay have found no evidence of contamination. But Dr. Ross Klein, an authority on the cruise ship industry and professor at Memorial University in Newfoundland, countered that the tests examined the water around the cruise ships, not the effluent at the point of discharge, the way the Alaska regulators did.

Klein has compiled a list of all known cruise ship violations dating back to the early 1990s.

BIGGEST LOSER: ASSOCIATION TO PRESERVE + PROTECT LOCAL LIVELIHOODS MAINE: To be precise, APPLL is not the cruise ship industry. Its chair Kristi Bond and her husband own restaurants which benefit from the volume of customers disgorged by cruise ships as with board member Heather Davis and her family which own Geddy’s Restaurant, and board member Shawn Porter and her family which own trinket shops. Board member Tom Testa formerly owned his eponymous restaurant. Eben Salvatore runs the tender operation for Ocean Properties which ferries passengers to and from the ships. OPL is also the biggest hotelier in town. The Penobscot Bay Pilots Association, which joined the plaintiffs, mostly services commercial shipping. Judge Walker rejected virtually all the arguments rendered by APPLL and often forcefully.

“Insofar as the Ordinance reduces the number of persons who visit Bar Harbor by cruise ship, the Ordinance commensurably advances Bar Harbor’s local interest in lessening congestion—particularly at the waterfront, over which the cruise industry will otherwise domineer. This noneconomic benefit, while not precisely measurable, is both real and reasonably well calibrated to ameliorate the particularized excesses of modern cruise tourism and how it interfaces with Bar Harbor’s waterfront.

“In short, the Ordinance imposes some burden on the ‘free flow’ of commerce, but that burden is impossible to quantify. The 1,000-person limitation is a significant downshift from the passenger caps previously observed in Bar Harbor. But that downshift also promotes noneconomic interests. Bar Harbor with the MOA passenger limits and Bar Harbor with the 1,000 daily passenger limit are significantly different places. The voters of Bar Harbor weigh[ed the relevant ‘political and economic’ costs and benefits for themselves, and the voters evidently decided that the noneconomic benefits of the Ordinance favored adopting it.”

FOOTNOTE: The First Circuit Court of Appeals based in Boston consists of two Obama appointees and three Biden appointees. They no doubt have read about OP’s Mark Walsh giving Ron DeSantis a $1 million contribution. DeSantis then successfully quashed Key West’s effort to cap cruise ships.

LOSERS: Five members of the previous Town Council which gave no time to Charles Sidman despite numerous entreaties he made to work together. Instead, as stated by the judge, council members, especially Val Peacock and Jill Goldthwait, were satisfied to follow the lead of the industry’s chief lobbyist.

LOSER: Bar Harbor Chamber of Commerce. This business group secretly joined APPLL as a member simply to support the lawsuit against the town and then prevaricated about it in front of the entire town at its annual meeting in June 2023. On June 24, 2023, the QSJ obtained minutes of the chamber board vote which stated: “To join APPLL and express support for their efforts in overturning the citizens petition through the active lawsuit; to work on messaging to members, the Town, and staff; and to consider Chamber membership in APPLL quarterly.” The motion was made by Heather Sorokin and seconded by Brenda Fernald. Others who voted in favor were: John Bench, Stephanie Clement, Victoria Conner, Bo Jennings and Lauren Tucker. James Allen opposed and Eben Salvatore abstained.

COLLATERAL LOSERS: Acadia National Park, Friends of Acadia and College of the Atlantic. The park service has been a member of the cruise committee from the beginning and for years helped facilitate the transportation and visitation by cruise ship passengers at the expense of land-based visitors. Stephanie Clement is a vice president of FOA and along with Chamber President Bo Jennings failed publicly to disclose the true intent of the chamber’s joining APPLL. COA, under outgoing president Darron Collins has had a cozy relationship with OPL and lobbied the COA community to reject Charles Sidman’s effort to stop the town pier from berthing cruise ships in 2019. COA also has had a long partnership with OPL’s commercial Whale Watch service. Ship strikes are a leading cause of Right Whale deaths.

LOSER: OPL law firm Eaton Peabody. In its biggest case in MDI history, the Bangor firm had very little to show for its effort, except for a bone thrown by Judge Walker to allow crew members to disembark. When I tried to interview lead plaintiff counsel Tim Woodcock in the courtroom, he told me to watch how legal history was about to be made. Woodcock was still in law school when I covered my first trial. Before he died, legendary Maine lawyer Art Greif told me that making this a maritime issue was a mistake. He said this was a land-use issue. APPLL hired fancy Constitutional lawyers from Washington, D.C. and even flew in a litigator from its Midwest office. Strangely absent from the trial was testimony from any cruise line. If you’re making the case this was a maritime issue, shouldn’t you have an aggrieved party actually make that case?

I would have put my money on Andy Hamilton in state court.

Where do we go from here?

If I were Eaton Peabody I would be concerned about the ferocity of Walker’s opinion. He is the only federal judge outside the Portland area. His Bangor office is within walking distance of both Eaton Peabody and Rudman Winchell, the town’s law firm. His 61-page opinion read like he was pissed off the entire time he was writing.

I wouldn’t want to be on the wrong side of the only federal judge in these parts and who is young - 52-years-old. He’s a Trump appointee and if Trump doesn’t win, he’ll be in that job for a while.

Similarly, Steven Wagner, the town’s assigned lawyer from Rudman Winchell, had better take heed as well. Walker has already ruled against Wagner once when he and Eaton Peabody both tried to prevent Sidman from intervening as co-defendant. Walker slapped down Wagner pretty hard and essentially stated that he did not have confidence Wagner could defend the citizens of Bar Harbor by himself.

This came about after Wagner compromised with Eaton Peabody to settle on implementing the industry’s proposed cap for 2023 instead of the citizens’ 1,000-passenger cap.

“Those opposed to Mr. Sidman’s intervention argue that he cannot demonstrate a real or concrete interest beyond the interest of the general populace,” Walker wrote.

“To the contrary, Mr. Sidman has a concrete personal stake in the alleged harms the ordinance was meant to redress. Quite unlike a party with no skin in the game who seeks to intervene solely to advocate on behalf of or against an enactment that is dividing popular opinion across a wide region, state, or nation, Mr. Sidman is connected to this very localized controversy based on a personal investment in the Town of Bar Harbor, including an investment in its commercial downtown.

“Given this basic reality, it is reasonable to infer that he has a concrete, personal stake in the local commons that is impacted by the influx of cruise ship passengers throughout an extended season. This is more than a mere ‘undifferentiated, generalized interest.’ ”

Wednesday night the Town Council has scheduled a special meeting to discuss next steps. Only this time Sidman is armed with a solid court ruling in his favor. Also, three of the new councilors are not encumbered by any previous vote. Even Peacock and Hochman have an opportunity to correct themselves and be on the right side of history.

Judges are among the most well-read and informed individuals in society. Walker did not form his views from reading legal briefs alone to write the following:

“Indeed, there is a strong showing in the record so far adduced that the Town has long given over to one or more agents of the Walsh family enterprises (i.e., most of the nominal plaintiffs) what appears (upon first impression) to be carte blanche in matters of Bar Harbor’s informal and voluntary cruise ship policy.”

Does the Town Council really want to send Wagner back to tell Walker it’s decided once again not to execute his order?

But, hey, this is Bar Harbor, and depending on which way the wind is blowing tomorrow night …

TRIBUTE: Ann Colgan Benson

1938 - 2024

MOUNT DESERT - Ann Colgan Benson was born on November 16, 1938, and passed away March 1st, 2024, at home in Somesville. She was a 1956 Honor Graduate at Ridgewood New Jersey High School where she met Fred whom she married in 1959. She graduated from Mount Holyoke College and for the next 20 years lived the life of a military spouse moving to several posts where she taught elementary school classes and provided research, editing, and public relations documents for nonprofit organizations. After receiving her Master's Degree in Library Science from Catholic University, she served 12 years as the Deputy Director of the National Geographic Research Library.

After arriving on MDI in 2003, she became active in the Mount Desert Historical Society. Her archivist skills soon became integral to the organization’s collections as she recruited other volunteers and oversaw a thorough evaluation and catalogue of the Society’s holdings. In honor of Ann and her many contributions, MDI Historical Society established the annual Ann Benson Award for Volunteer Service in 2016. She was the first recipient.

Ann loved Met Live opera, the Bangor Symphony, books, gardening, and her grand dog, a black lab named Echo, and her many friends.

She is survived by her husband Fred, her son Rob and his wife, Cristy, grandsons Peter and Jacob, and her sister Cynthia McGrath.

The most common attributes heard from those who knew her were her literary acumen, her gentle soul, and her winning smile.

A memorial service will be held in early summer.

Those who desire may make contributions in Ann’s memory to the Island Housing Trust, P.O. Box 851, Mt. Desert, Me 04660.

Condolences may be expressed at www.jordanfernald.com