BAR HARBOR, Maine (LN) — U.S. District Judge Lance E. Walker ruled Thursday that the Town of Bar Harbor’s 1,000-passenger daily cap on cruise ship disembarkations is constitutional during the peak summer season but violates the Commerce Clause during the shoulder months of May, June, September, and October.
The decision resolves a remand from the First Circuit, which had directed Walker to clarify findings regarding the burden the ordinance places on interstate commerce and to more deeply analyze the balancing test under Pike v. Bruce Church, Inc.
The ordinance, approved by voters in November 2022, limits the number of passengers who may disembark on any single calendar day to 1,000. The cap applies year-round, affecting a town with a year-round population of fewer than 5,500 residents that serves as a marquee destination for foreign-flagged cruise vessels calling at Acadia National Park.
Walker found that the cap imposes a substantial burden on interstate commerce, likely reducing the number of cruise ships calling in Frenchman Bay by more than 80 percent, and possibly as high as 90 percent. The ruling noted that most cruise lines plan visits with vessels having lower-berth capacities exceeding 1,000 passengers, and it is unlikely a line will schedule a port call if it cannot disembark its entire complement in one day.
Plaintiffs in the case include the Association to Preserve and Protect Local Livelihoods, tender vessel operators like B.H. Piers and the Delray Explorer Hulls, and the Penobscot Bay and River Pilots Association. The plaintiffs argued the cap severely reduced their revenue and disrupted interstate travel itineraries.
However, Walker concluded that during the peak summer months of July and August, the local benefits of the cap outweigh the burdens on commerce. The judge cited overwhelming evidence of congestion, including bottlenecks of Main Street and West Street, overcrowded sidewalks, and diminished quality of life for residents.
Walker described the peak season congestion as having "all but exhausted the voting public’s patience and tolerance," noting that the cap provides "that amount of breathing room that makes an intolerable situation tolerable."
The ruling turned on the distinction between peak and shoulder seasons. Walker found that the 1,000-passenger limit was "parsimonious" and difficult to defend during the shoulder months, when land-based tourism is less intense and the town’s carrying capacity is not as strained.
"The distinction between peak and shoulder seasons is longstanding and self-evident," Walker wrote. He suggested that the town could manage public disaffection during the shoulder season through "periodic accommodation of cruise ships with lower-berth capacities in excess of 1,000 passengers" or by adjusting the number of cruise ship days.
The judge rejected the plaintiffs' attempt to rely on South Covington & Cincinnati Street Railway Company v. City of Covington, a 1915 Supreme Court case involving streetcars. Walker distinguished cruise ships from rail-bound transportation, noting that cruise lines can fashion itineraries around ports that welcome them, and that no municipality presupposes it has dictated the size of vessels built by other companies.
Walker also found that the plaintiffs failed to demonstrate that the ordinance harmed other coastal towns, calling such claims "conjectural."
The case returns to the district court for further proceedings consistent with this order, meaning the 1,000-passenger cap remains in effect for July and August but is struck down for the rest of the year.
Walker, a George W. Bush appointee, noted in his conclusion that problems of this nature are "best addressed in a legislative venue" and that litigation is "the last resort of losers in the democratic arena."