The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ASSOCIATION TO PRESERVE )
AND PROTECT LOCAL )
LIVELIHOODS, B.H. PIERS, L.L.C., )
GOLDEN ANCHOR L.C., )
B.H.W.W., L.L.C., DELRAY )
EXPLORER HULL 495 LLC, )
DELRAY EXPLORER HULL 493 )
LLC, and ACADIA EXPLORER 492 )
LLC, )
)
Plaintiffs, )
)
) No. 1:22-cv-00416-LEW
PENOBSCOT BAY AND RIVER )
PILOTS ASSOCIATION, )
)
Plaintiff-Intervenor, )
)
v. )
)
TOWN OF BAR HARBOR, )
)
Defendant, )
)
)
CHARLES SIDMAN, )
)
Defendant-Intervenor )
POST-REMAND DECISION AND ORDER
This case returns following a remand from the First Circuit that directs me to resolve
a “mismatch” in my findings, make additional findings in previously unaddressed areas,
“acknowledge” a certain burden on interstate commerce, and delve more deeply into the
Pike discussion contained in my March 1, 2024, Amended Decision and Order (ECF No.
206). See Ass’n to Preserve and Protect Local Livelihoods v. Sidman, 147 F.4th 40, 66-72
(1st Cir. 2025) (discussing the elements of a Dormant Commerce Clause claim governed
by Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)); see also Ass’n to Preserve & Protect
Local Livelihoods v. Town of Bar Harbor, 721 F. Supp. 3d 56, 66 (D. Me. 2024), aff’d in
part, vacated in part, remanded sub nom. Ass’n To Preserve & Protect Local Livelihoods
v. Sidman, 147 F.4th 40 (1st Cir. 2025). With the benefit of the First Circuit’s opinion,
supplemental briefing by the parties, oral argument, and a guided reexamination of the trial
record, this Order clarifies and enhances the findings made in my prior ruling and modifies
my prior ruling on the merits.
FINDINGS
The findings that follow are drawn from and modeled after the findings contained
in the Amended Decision and Order. The findings are refined and supplemented where
appropriate to carry out the objectives of the remand. Some findings from the Amended
Decision and Order have been shortened or removed to keep the focus on the Pike portion
of the Dormant Commerce Clause claim.
The Parties
The Plaintiffs in this action are the Association to Preserve and Protect Local
Livelihoods (“APPLL”); B.H. Piers, L.L.C.; Golden Anchor, L.C., doing business as
Harborside Hotel; BHWW LLC, doing business as Bar Harbor Whale Watch; Delray
Explorer Hull 495 LLC; Delray Explorer Hull 493 LLC; and Acadia Explorer 492, LLC.
APPLL is a business league comprised of members who own or operate businesses
in Bar Harbor and seek to capitalize on the economic opportunities associated with the
provision of goods and services to cruise ship passengers. APPLL members include
owners and employees of local restaurants, retail stores, and tour-related businesses.
The Delray Explorer Hulls and the Acadia Explorer are tender vessels owned by
similarly named limited liability companies. The vessels carry cruise ship passengers from
cruise ships anchored in Frenchman Bay to Bar Harbor. B.H. Piers and Golden Anchor
own piers in Bar Harbor where the tender vessels disembark and embark cruise ship
passengers. BH Piers operates the pier located at 1 West Street, known as Harbor Place.
Golden Anchor operates the pier located at 55 West Street.
BHWW is a limited liability company doing business as Bar Harbor Whale Watch
Company. BHWW coordinates whale watching tours to cater to the cruise lines’
passengers.
For ease of reference, all of the foregoing parties will be addressed as “Plaintiffs”
unless their individual circumstances are addressed.
The Penobscot Bay and River Pilots Association appears in this matter as
Intervenor-Plaintiff. The Pilots Association is a private corporation that provides pilotage
services in a region that extends 75 miles from Boothbay Harbor to Frenchman Bay and
75 miles from the west pilot station on Penobscot Bay to the Penobscot River Port of
Brewer. By law, foreign-flagged and certain domestic cruise ships must be piloted within
Frenchman Bay by a local pilot who is familiar with the Bay and its channels. Pilots board
cruise ships (and other large vessels) eight to twelve miles offshore and direct navigation
to anchorage grounds in Frenchman Bay (or to other destinations in Penobscot Bay). The
anchorage grounds in Frenchman Bay are roughly two miles from the Bar Harbor
waterfront and piers. In response to the expansion of cruise vessel traffic, the Pilots
Association has invested in vessels and has expanded its employment of pilots. In
particular, the Pilots Association now has a dedicated crew and purpose-built vessel to
handle the piloting demands associated with cruise vessel traffic in Frenchman Bay. Fees
for piloting services are established by law and are a function of the size of the vessel. Ex.
39. The larger the ship, the greater the fee.
The Defendant is the Town of Bar Harbor. Bar Harbor is, among other things, a
Class A port of entry for foreign-flagged cruise vessels reentering the United States and a
popular port-of-call on North Atlantic cruise ship itineraries. Bar Harbor is governed by a
Town Council. The Town of Bar Harbor has a year-round population of somewhat fewer
than 5,500 persons.
One of the residents of Bar Harbor is Charles Sidman, Intervenor-Defendant. Mr.
Sidman was a primary proponent and co-author of the initiative that resulted in the land
use ordinance challenged in this case.
Non-Parties of Note
Among the cruise lines that visit Bar Harbor are several lines owning foreign-
flagged cruise vessels. When they call, these vessels typically spend about nine hours at
anchorage, enough time for passengers to clear customs and participate in a shore visit of
reasonable duration.
The State of Maine has two other Class A ports of entry, Eastport and Portland.
Neither is as proximate to Acadia National Park as Bar Harbor. If a cruise ship called in
Eastport or Portland, travel by motor coach to reach and return from Acadia National Park
would consume much of the day.
CruiseMaine, part of the Maine Office of Tourism, promotes cruise communities in
Maine and Maine-based cruise ship tourism in general.
Background Facts
The Town of Bar Harbor lies on the shores of Frenchman Bay in the North Atlantic
on the eastern side of Mount Desert Island. The Town is nestled in an area of great scenic
beauty abutting Acadia National Park, a national asset that the Park Service refers to as the
Crown Jewel of the North Atlantic Coast. Given Bar Harbor and Acadia National Park’s
placement and prominence among other North Atlantic attractions accessible by sea, the
cruise ship industry considers Bar Harbor to be a marquee destination, the kind which
appeals to customers and around which an appealing cruise itinerary can be built.
Although Bar Harbor had long experienced healthy tourist seasons, in the 2000s
local businesses and their representatives on the Town Council desired to expand this
commerce, both in terms of intensity and duration. At the time, and specifically as to cruise
ship tourism, the tourism season ran from Memorial Day to Labor Day and cruise ship
visitation was occasional and irregular. Local businesses and their representatives on the
Town Council saw cruise tourism as one means of increasing the intensity and extending
the duration of the tourism season.
In 2006, the Maine Department of Transportation, the Maine Port Authority, and
the Town of Bar Harbor joined in a task force to commission a cruise tourism destination
management plan for Bar Harbor. The authors of the plan proposed architectural and
engineering improvements to develop the Town to facilitate expanded cruise ship
passenger access, chiefly by means of improved pier facilities. Ex. 260. In 2008, the Town
accepted a recommendation from the task force to embody a cruise ship committee and
establish a policy of daily cruise passenger caps of 3,500 passengers for the peak-tourism,
summer months of July and August, and 5,500 passengers for the shoulder-season months
of May, June, September, October, and November. The cruise ship lines were receptive to
the invitation and amenable to the passenger caps, and cruise ships began to call in
Frenchman Bay in ever-increasing numbers. Local enterprise and investment gradually
expanded to meet the increased demand for passenger tendering and other local services.
Historically, the Town established its daily passenger caps largely by reference to
the lower berth capacities of existing cruise vessels. The caps were understood to be
“voluntary” in that they were mutually acceptable to the then-existing Council and the
cruise lines. The Council and the cruise line industry were able to agree that cruise line
passengers generally would not be well served in Bar Harbor if two or more cruise ships
each with an especially large lower-berth capacity were to disembark on the same day,
even during the shoulder season. They also recognized that it was sensible to lower the
cap during Bar Harbor’s peak summer season, given the competing demand for local
services and the resulting local burden and congestion generated by peak, land-based
tourism. The progenitors of Bar Harbor’s cruise ship management plan understood that
cruise ship visitation imposes certain municipal burdens,1 including congestion, that can
detract from the character of the Town and reduce the quality of life for residents. In other
words, even the supporters of the growth in cruise traffic appreciated that, given the
realities on the ground in Bar Harbor in 2008, limits are appropriate and serve the interests
of both the cruising public and local residents.
Since then, Bar Harbor has experienced a steady growth in tourism, due chiefly to
its proximity to Acadia National Park. In 2021, Acadia National Park attracted roughly
four million visitors. For many of these visitors, a trip to Acadia includes a visit to
downtown Bar Harbor. Meanwhile, more and larger cruise ships anchored in Frenchman
Bay and cruise ship passenger visitation levels started to approach the established daily
caps on an ever-increasing and consistent basis. Although cruise ship passengers account
for a limited portion of the total number of annual visitors to Bar Harbor, they arrive at a
destination that is already heavily burdened (and also blessed) by land-based tourism and
at a waterfront of limited area and carrying capacity.2
Over the years, the process of tendering passengers to shore has become an
increasingly efficient operation. In 2017, the Delray Explorer Hulls and the Acadia
1 To manage the voluntary cap system, the Town instituted a reservation system overseen by its
harbormaster. Bar Harbor also maintains a per-passenger fee structure for cruise ship visits. Ex. 29. The
Town has used the fees generated in this manner (roughly $1 million per year) to fund town salaries and
enlarge its police force, among other things. This significant increase in personnel, particularly law
enforcement, is itself evidence of the localized impacts of increased traffic.
2 There is evidence that on an annualized basis, the total number of cruise ship passengers who come to
Bar Harbor is less that 10 percent (closer to 7 percent) of the total of all tourists who come to Bar Harbor
for purposes of tourism. The percentage is not static, however, and on a day-to-day basis will rise and fall
according to the size of the ship in the Bay, the season, and the intensity of land-based tourism. The
percentage would typically be higher in the shoulder season when land-based tourism is less intense and
cruise ship tourism is increased.
Explorer were constructed and dedicated to tendering cruise ship passengers. Their owners
also invested in barges to facilitate the movement of passengers from the cruise ships to
the tender vessels. Each of the three tender vessels is licensed to hold 149 passengers and
together they steadily rotate into and out of the harbor in roughly 30-minute intervals,
primarily disembarking passengers onto the piers mid-morning and embarking them again
in the afternoon, though passengers move back and forth throughout the day.
Consequently, there are times of day that involve more intense movement of people in
either direction. Foreign-flagged vessels, for example, arrive mid-morning and spend on
average nine hours at anchorage. Their passengers spend on average six to seven hours on
land. In the morning, passengers congregate near the piers and waterfront, including at
motor coach staging areas, while others walk into the Town. Passengers may be in any
number of locations during the day, such as on a whale watch tour or an Acadia bus tour,
or at a local restaurant or business. In the afternoon, passengers (and their assorted
conveyances) again congregate near the piers to obtain passage back to their cruise ship.
During these periods, law enforcement presence is enhanced and helps to facilitate the flow
of traffic associated with the comings and goings of cruise ship passengers. Parking spaces
on West Street are restricted to buses and other conveyances as well to help keep things
moving. The duration of these surges is in part a function of the total number of cruise
ship passengers who come ashore in a given day.
While these efforts to steadily move cruise ship passengers are commendable, they
by no means render inconsequential the supplemental press of people into the downtown.
At trial, Plaintiffs’ witnesses sought to portray these operations as tidy and well managed.
However, more persuasive to me was the witness testimony of locals who described both
the waterfront and the downtown as undesirable destinations to visit when large cruise
ships are at anchor.
In summary, the expansion of cruise tourism in Bar Harbor has taken place
alongside the burgeoning growth of tourism of all stripes. For some, the expansion has
resulted in a return on planning and investment. But for the majority of local voters, the
expansion has resulted in a growing disaffection with the quality of municipal life.
Increasingly, town leaders were hearing from constituents who expressed their
disaffection.3 In January of 2021, Bar Harbor commissioned a marketing research firm to
perform a quantitative study and write a report concerning local opinions.4 Ex. 323. The
survey had a healthy response rate. Many respondents voiced concern for the congestion
caused by cruise ship visits and ranked cruise ship tourism a net negative for the Town.
Even the cruise industry has acknowledged this growing disaffection. In July of 2021, the
president of the Cruise Lines International Association proposed new passenger caps as
part of a negotiation with the Town. The proposal, accepted by the Town Council, involved
3 Town Council Chair Valerie Peacock testified that in 2020 and continuing residents of Bar Harbor have
expressed strong feelings of angst over the perceived negative impact of the cruise ship industry but also
concern over the expansion of tourism in general. July 13 Tr. at 112–13, 121–25.
4 Pan Atlantic Research’s study surveyed year-round and seasonal residents, property owners, and business
owners of Bar Harbor to examine what they thought about sea-based tourism. See generally Ex. 323.
Overcrowding, too many ships/tourists, and environmental concerns ranked among the most popular
answers to Bar Harbor’s greatest challenges in managing cruise ship tourism. Ex. 323 at 29; see also July
13 Tr. at 212:14–214:9 (describing the increased street traffic and congestion at the waterfront when cruise
ships arrive).
a daily passenger reduction for the shoulder season5 and a new monthly cap of 65,000
visitors.
Although public pressure was growing, the Bar Harbor Town Council, ultimately,
was not then constituted to provide the pressure relief that many citizens hoped for, though
the Council did work to reduce cruise ship passenger traffic.6 On February 15, 2022, the
Council approved the formation and membership of a new working group to explore the
modification of the daily passenger limits for the 2023 and 2024 cruise seasons.7 On
August 16, 2022, the Town Council accepted the task force’s recommendation to enter into
a memorandum of agreement (“MOA”) with each cruise line and directed the preparation
of a form MOA for circulation.8 The resulting MOA withdrew the months of April and
November from the Town’s reservation system, lowered daily passenger caps from 5,500
to 3,800 for the months of May, June, September, and October (with a +200-passenger
leeway), and instituted a new monthly cap of 65,000. In September and October of 2022,
5 By 2019, it was a misnomer to describe the months of September and October as a “shoulder season”
when describing the volume of cruise ship passengers coming ashore in Bar Harbor. In fact, over 60 percent
of Bar Harbor’s annual cruise ship passenger visits occur in September and October. September and
October are also the months that see the most visitation by the very largest vessels (>3,500 passengers).
See, e.g., Ex. 165.
6 At trial, counsel for Plaintiffs worried that testimony concerning public disaffection and council activities
(much of Chair Peacock’s testimony) was an attempt to construct a false legislative history in support of
the Ordinance. I have not interpreted the testimony in that fashion. Rather, the testimony related some of
the contemporaneous local history that set the stage for the success of the Initiative.
7 Separately, the Bar Harbor Cruise Ship Committee was already corresponding with the Cruise Lines
International Association to explore ways of reducing cruise visitation. Ex. 214.
8 Two weeks prior, on August 2, 2022, the Town Council went into executive session to discuss the citizens’
petition that would become the Ordinance but was, at that time, still in need of voter approval. Exs. 207–
210. The Town Council also conducted a workshop on that date to discuss the future of cruise tourism in
Bar Harbor. Among other matters under consideration were cautionary litigation warnings from the Cruise
Lines International Association. Ex. 211.
the Town entered into MOAs with American Cruise Lines, Disney Cruise Lines, Holland
America Line, Hurtigruten Expeditions, Norwegian Cruise Line, Pearl Seas Cruises,
Princess Cruises, Rogay Caribbean Cruises, Seabourn Cruise Line, Viking Cruises, and
Windstar Cruises Marshall Islands.
While the Town Council publicly pursued its voluntary measures, a group of local
residents formed a petitioning committee to advance a citizens’ initiative that would
achieve more significant reductions. Their initiative proposed amending the Bar Harbor
Code to require a permit to disembark cruise ship passengers “on, over, or across any
property located within the Town of Bar Harbor.” Ex. 243A. It also specified that “no
more than 1,000 passengers, in the aggregate, may disembark on a single calendar day.”
Id. The Initiative states that the harbormaster shall develop rules and regulations to
establish a reservation system for disembarkation. (Historically, application of the
voluntary caps also relied on a reservation system.)
The initiative included a statement of purpose focusing on quality of life but also
expressing concern for public safety and the commercial interests of businesses other than
those seeking the patronage of cruise ship passengers. Concerning quality of life, the
initiative’s sponsors wrote:
Underlying this proposed amendment is the fact that, in recent years, the
Town has been a popular port of call for cruise ships of varying sizes, from
which passengers disembark via tender boats that offload passengers directly
into the downtown area. The large numbers of passengers have
overwhelmed the downtown area, resulting in excessive congestion and
traffic on public streets and sidewalks, frequent overcrowding of parks and
other public spaces, and inundating local amenities and attractions, all of
which result in a diminished quality of life for Town residents.
Ex. 243A. Concerning public safety and other business interests, the sponsors wrote:
The unchecked and continued influx of disembarking cruise ship passengers
in the downtown area jeopardizes the Town’s ability to deliver municipal
services to Town residents and visitors (for example, cruise ship passengers),
including the provision of public safety services (police and fire), emergency
medical services (EMS), in-patient and out-patient services at local hospitals,
pandemic control measures, and public sanitation services, and also impacts
the ability of local shops, restaurants, and other businesses to attract and
serve customers.
Id. The sponsors then summarized:
A town-wide survey was conducted in 2021, showing that a majority of
respondents believe that the volume of disembarking cruise ship passengers
is too high and has a negative impact on the Town and the health, safety and
welfare of its residents.
Id.
The initiative was listed as an article on the warrant for Bar Harbor’s November 8,
2022, special town meeting. A majority of the registered voters who voted supported the
article. Bar Harbor now has a land use ordinance that establishes a disembarkation cap of
1,000 persons per day throughout the entire cruising season.
During trial, Mr. Sidman testified that the 1,000-person cap was not the product of
“a rigorously defensible finding or study or calculation.” July 13 Tr. at 312:20–21 (ECF
No. 185). The group proposed various caps, some higher, but ultimately arrived at 1,000
persons. According to Sidman, “We just didn’t want to get into various limits at different
times of the year.” Id. at 313:24-25.
Findings Concerning the Ordinance’s Burdens on Commerce
Most of the cruise lines that have historically scheduled visits to Bar Harbor plan
visits with cruise ships having a lower berth capacity in excess of 1,000 passengers. Only
27 of the 134 ships scheduled to make calls in the 2023 season could disembark their entire
complement of passengers in one day without exceeding the 1,000-passenger cap. It
appears unlikely that a cruise line will schedule a port call for purposes of a shore visit if it
cannot disembark its ship’s entire complement of passengers in a single day.9
Consequently, the likely impact of the Ordinance on the number of cruise ships weighing
anchor in Frenchman Bay is substantial. And in terms of the number of disembarking
passengers, the reduction is likely to be north of 80 and possibly as high as a 90 percent
reduction based on existing vessel traffic that served the region when the Ordinance passed.
The likely impact for Plaintiffs and the Pilots Association varies. The pier and
tender boat operators will no longer generate fees for the lost passenger traffic and will
experience a significant drop in revenue, though I do not recall evidence concerning their
fee structure. The Pilots will likewise experience a significant reduction in revenue, as
their fee structure takes into consideration vessel size. Under the Ordinance, the large
cruise ships will no longer seek the Pilots’ services for purposes of accessing an anchorage
in Frenchman Bay. Both these Plaintiffs and the Pilots Association will fail to realize
anticipated returns on their investments. The impact on BHWW is less certain on this
9 It is certainly understandable that every passenger on board would wish to come ashore at a port of call,
and that cruise lines need to fulfill that reasonable expectation. Less understandable is the supposition that
cruise lines could not anchor a ship for more than one day to enable everyone to go ashore under a cap that
is lower than the ship’s lower-berth capacity. Plaintiffs did not offer any evidence to demonstrate that
remaining at anchor for longer than a day would be anathema to the cruising public, but there is the
suggestion that this is an externality of their business model that port communities are expected to absorb.
See Def. Brief on Remand at 13 (citing Cruise Connections Charter Mgmt. 1, LP v. Atty. Gen. of Canada,
967 F. Supp. 2d 115, 131 (D.D.C. 2013)); see also Ass’n to Preserve & Protect Local Livelihoods, 721 F.
Supp. 3d at 94-95 & n.36.
record. I do not recall evidence concerning their business model or how much it depends
on cruise ship passengers, but there was testimony that whale watch cruises are reserved
by members of the cruising public. The APPLL members, most of whom operate land-
based retail establishments, will likely experience a reduction in the volume of business,
particularly in the shoulder seasons, and will perhaps close during either or both shoulder
seasons.
In addition to these localized burdens, there is also a burden on interstate commerce
associated with the cruise line industry and its itineraries, and on the traveling public who
wish to visit Bar Harbor and Acadia by cruise ship. The reduction in the number of
passengers who may disembark will mean there are fewer passengers who make it to Bar
Harbor via cruise ship. Accessing Acadia National Park will involve far fewer vessel
options, though cruise ship options and many alternative means of visiting Bar Harbor (and
Acadia) remain.
I do not recall any evidence concerning the lost revenue of cruise lines. What was
made manifest is that Bar Harbor is a marquee cruise ship destination, and there will always
be cruise lines willing to build cruise tours around Bar Harbor and Acadia to the extent
they are able. The difficulty for cruise lines is that they cannot enjoy the same economies
of scale and associated profits that their larger cruise ships enable if they intend to design
a cruise itinerary that includes a one-day Bar Harbor visit with a 1,000-passenger cap.
Finally, there has been some effort by the parties to address on remand the First
Circuit’s expectation that I make a finding concerning the impact the Ordinance may have
on “other coastal towns.” See APPLL, 147 F.4th at 72. I find that the record does not
provide the means to do so. What can be said is that Bar Harbor will be on fewer itineraries,
but not that other coastal towns that cater to cruise tourism will suffer a loss in visitation.
The opposite may even be true. The record simply is too conjectural. Even Plaintiffs and
the Pilots Association speak in terms of suppositions, suggesting that the Ordinance “can
impact U.S. commerce beyond Bar Harbor.” Pls. & Pl. Int. Joint Brief (“Joint Brief,” ECF
No. 246) at 18. I agree with Defendant that Plaintiffs and the Pilots Association have not
demonstrated this harm. Def. Brief on Remand at 11-15; see also Ass’n to Preserve &
Protect Local Livelihoods, 721 F. Supp. 3d at 89 n.26.
Findings Concerning the Initiative’s Stated Purposes
To the extent the initiative expressed concern for public safety due to congestion
located anywhere other than the waterfront, West Street and northern Main Street, there is
no empirical data to enable a fact finder to mathematically allocate responsibility for a
degradation in overall municipal public safety between cruise and land-based tourism. But
this observation is of no moment. The weight of the evidence convinces me that cruise
tourism imposes a real and substantial burden in terms of congestion not only at the
waterfront but also more widely in the rest of downtown, and that this added burden has
real and substantial negative implications for residents’ experiences in terms of their
quality of life. Moreover, the waterfront is an integral part of downtown Bar Harbor that
members of the local public wish to enjoy. It is overwhelmingly apparent that this area,
including its public spaces and ocean views, has greatly diminished appeal to local
residents when cruise tourism is coupled with peak-season, land-based tourism.
Furthermore, conditions at the waterfront are problematic enough to generate non-
speculative concerns for public safety. Indeed, the initiative sponsors’ stated concern for
public safety has been echoed by the cruise industry. See, e.g., Ex. 32 §§ 5.3, 5.4.
However, at least to date there does not appear to be an incident illustrating any past failure
in the delivery of public services occasioned by passenger congestion at the waterfront or
elsewhere downtown. This is not a finding that a reasonable person would regard the press
of persons in the downtown area (in and beyond the waterfront) as insignificant or
inconsequential to safety. To the contrary, based on findings related herein, a reasonable
person could view the level of congestion in Bar Harbor during peak tourism as a legitimate
police power concern, even beyond the waterfront.
To provide some geographic perspective, cruise ship passengers come ashore in
Bar Harbor in an area of limited space nestled between the Public Pier and Harborside
Hotel. One of the tender boat piers over which cruise ship passengers travel sits at the east
end the harbor, just west of the Public Pier, near the juncture of Main Street and West
Street. The other pier sits a few hundred feet to the west of that, less than a city block from
the same intersection. Between them is a short stretch of commercialized waterfront. Both
West Street, running east-west, and Main Street, running north-south, are two-way
roadways of no special width, with on street parking.10 These roads provide access to the
waterfront, which comprises the north end of the downtown. As Defendant protests, Def.
Brief on Remand at 17-19, the waterfront is an integral part of downtown Bar Harbor. It
is inaccurate to think of the Bar Harbor waterfront as a separate area merely adjacent to the
10 The parking spaces on West Street are set aside for buses and other conveyances when cruise ships are
in the Bay.
downtown. The waterfront area is an integral component of downtown Bar Harbor. Also,
as a waterfront, this area of the downtown includes the primary public land—including
Agamont Park and the municipal pier—from which to look out on the harbor or visit Bar
Harbor’s shore path, which begins (or ends) just to the east of BH Piers’ 1 West Street pier
and the whale watch staging area.
Bar Harbor’s downtown is no urban landscape. In terms of city blocks, there are
roughly four blocks in a two-by-two orientation that comprise Bar Harbor’s downtown.
Outside of those boundaries are, primarily, residences.11 As for Bar Harbor’s downtown
roadways, they are not wide thoroughfares of the kind you expect to see near, say, San
Francisco’s Pier 27, Boston’s Flynn Cruiseport, or even Portland’s Cruise Terminal.
Anyone who imagines the Port of Bar Harbor and conjures up a picture looking anything
like these other port facilities utterly misapprehends the lay of the land in Bar Harbor. 12
Congestion in downtown Bar Harbor is a seasonal fact of life, but it is exacerbated
by the regular morning and afternoon pulse of cruise ship passengers and the tour buses
and other vehicles that arrive to cater to them. In addition, fall congestion is largely a
11 Plaintiffs and the Pilots Association assert that the impact of cruise ship passengers on congestion is
effectively nil “just 1,400 feet from” the waterfront. Joint Brief at 24. As I understand the record, the
initiative authors’ apprehension for congestion in the downtown concerns the area inside of this boundary.
One might say that the area outside of this boundary is “downtown” as well, speaking casually, but the
character of the Town from the perspective of pedestrian downtown tourism changes dramatically and
almost immediately from predominantly services catering to tourists to predominantly residential outside
of this core or inner downtown area. This appears to be entirely consistent with the understanding of
Plaintiffs and the Pilots Association, who characterize the downtown as “the heart of Bar Harbor’s business
district,” or “the community focal point for cultural, business and service activities.” Joint Brief at 30.
12 And yet, Bar Harbor’s cruise passenger traffic under voluntary limitations has exceeded that of Portland
and Boston, and perhaps has even rivaled that of San Francisco.
function of cruise ship visitation, resulting in an undeniable change to the annual rhythm
of municipal life. In this environment, cruise ship passenger visitations may well be
viewed by rational voters as indulgent and burdensome surplusage in an already taxed
ecosystem of extremely modest geographical proportions. In other words, the initiative
sponsors’ stated concern for generalized welfare and quality-of-life considerations is
neither unsubstantiated nor unrelated to the unique congestion problem associated with a
small coastal town’s capacity to accommodate cruise ships with increasingly high lower-
berth capacities, that choose to anchor for less than a day.
When tourism is in full swing and when cruise ships come to call, cruise ship
passengers and those who seek to serve them effectively bottleneck the juncture between
Main Street and West Street and dominate an integral portion of the downtown that the
wider public also wants to access. This intensive localized impact wanes the further one
moves away from it, but it has real negative implications for the flow of vehicular and
pedestrian traffic in other areas of the downtown as well. The duration of this impact is in
part a function of the total number of passengers who disembark from a particular cruise
ship.
Congestion produces significant disaffection with municipal life, overtaxed public
facilities, long lines, crowded streets and sidewalks and businesses, slowed traffic, and the
like. The initiative in support of the Ordinance fairly described these negative impacts as
quality-of-life concerns. The idea proposed by Plaintiffs and the Pilots Association that
cruise ship traffic has a negligible impact on local conditions is disingenuous, unpersuasive
and flatly contradicted by the record. The video evidence that was presented by Plaintiffs
and/or the Pilots Association was more in the nature of pro-cruise marketing material that
was not representative of the daily impact of cruise-related visitation and, instead, depicted
quieter moments on quieter days. Plaintiffs and the Pilots Associations observe that,
“[e]ven so, the videos and the Court’s treatment of them demonstrate that even ‘cruise ship
days’ can be quiet days in Bar Harbor when pedestrian congestion is minimal or absent.”
Joint Brief at 26. They find fault with the fact that “[t]he Ordinance does not account for
the relative and varying contribution of cruise passengers to pedestrians from other sources
at all.” Id. However, Plaintiffs and the Pilots Associations did not attempt to present a
case for fluctuating passenger caps based on, say, the day of the week. Nor did they offer
any predictive model to advocate for greater cruise ship tolerance during particular parts
of the week, or particular weeks in the month, to support the idea that larger vessels can be
accommodated on a predictive, periodic basis through the reservation system even during
peak congestion. Plaintiffs and the Pilots Association’s theory of the case and their
evidentiary presentation steered clear of acknowledging the existence of any worst-case
scenarios and instead advanced the notion that there is really nothing to worry about on
any given day.
Alternatively, Plaintiffs and the Pilots Association posit that “[i]f there is indeed a
‘flood’ of congestion-creating visitors to Bar Harbor,” there is no point in restricting cruise
ship visitation because they are a small percentage contributor to the larger problem. Pilots
Ass’n Reply at 16 (ECF No. 250). In effect, the Plaintiffs and the Pilots Association’s only
concessions are that congestion is a legitimate factor upon which to restrict the number of
disembarkations, a willingness to abide by an MOA that reduces July and August
disembarkations relative to the shoulder seasons, and the most recent voluntary reduction
in visitation levels for the entire shoulder season. See, e.g., Pilots Ass’n Reply at 22 (“The
new [MOA] passenger caps aligned cruise visitation with the Town’s ability to
accommodate that visitation.”); Pls. Reply at 24 (ECF No. 251) (similar).
The fact is that the negative implications of cruise tourism are intensified and
prolonged as the number of cruise ship passenger disembarkations increases. These
implications include the bottleneck of two of fewer than a handful of roads into and out of
the downtown, a tide of pedestrian traffic that dramatically undermines public enjoyment
of the waterfront and other nearby portions of the downtown, and excessive pedestrian
crowding throughout the downtown. In all, the combined impact of cruise ship passengers
and those motor carriers who aim to serve them is very substantial when it comes to the
waterfront. As the morning progresses, and in the afternoon, the impact of this bottleneck
gradually works its way, arterially, up West Street and Main Street, with consequential
impacts to adjacent traffic tributaries. Although I stated in my Amended Decision and
Order that the effect beyond the waterfront was “cumulative” of preexisting congestions,
what that meant is that it produces an accumulation of persons on top of what is often an
already significant, and sometimes an already excessive, degree of congestion.13 If the
13 Plaintiffs and Pilots Association acknowledge that there is already significant congestion when cruise
ship passengers arrive. They observe that the “sources of downtown congestion are manifold, and include:
hotels, short-term rentals, seasonal homes, and campsites. (PX 14.) They also include commuting
employees, seasonal workers, and day trippers. (PX 14.)” Pls. & Pl.-Int. Brief on Remand at 27. The Pilots
Association observes:
On any given day, particularly during tourism season, Bar Harbor’s population can swell
to approximately 24,000 people, excluding day trippers and cruise ship passengers. (PX
14.) Visitors stay in Bar Harbor’s approximately 3,000 hotel rooms, 620 short-term rentals,
First Circuit discerned that I rejected any such impact, that was an inaccurate reading of
that Order. In fact, local witnesses testified to the impact in matter-of-fact ways that
conveyed their experience of excessive congestion beyond the waterfront in a tangible and
relatable fashion. To the extent Plaintiffs sought to dispute these contentions, ostensibly
in an empirical fashion, the soundings they took through their expert witness lacked
persuasive force and were, in the end, unrelatable.14 Considering that Plaintiffs bear the
burden of proof on their claim, this is not favorable to their cause. As a matter of fact,
cruise ship days have a qualitative and quantitative impact that is more than marginal to
the experience of congestion in the downtown beyond the limited confines of the
waterfront.
726 seasonal homes, and 970 campsites. (PX 14). Roughly 750 seasonal workers contribute
to Bar Harbor’s increased tourist-season numbers, meaning that, at its peak, Bar Harbor
hosts nearly 16,000 non-residents overnight—nearly three times the local year-round
population. Add to that day trippers, who visit Bar Harbor in unknown numbers, and nearly
3,000 employees, who commute into Bar Harbor daily. (PX 14.)
Pilots Ass’n Reply at 16. Of course, they offer this only as a springboard to say that cruise tourism is a
negligible drop in a sea of congestion, all the while acting as though they are suspending disbelief for the
sake of argument. Id. (“If there is indeed a ‘flood’ of congestion . . . .”). Reasoning by analogy, if an artery
is already clogged, it would be irrational to describe as of only marginal significance a diet that only serves
to exacerbate the blockage.
14 Plaintiffs and Pilots Association offered the testimony of Professor Todd Gabe, Ph.D., of the University
of Maine, who studied congestion in Bar Harbor’s tourist district. One study occurred at the tail end of
August and essentially concluded that allowing 680 additional cruise ship passengers (i.e., more than the
daily 3,500 passenger cap for August) would result in only a negligible further experience of congestion in
a town already impacted by land-based tourism and the baseline 3,500 cruise ship passengers. Ex. 319 at
2. Professor Gabe also spent a number of days walking about Bar Harbor and recording his subjective
experience at various times and locations. About half of the walks he took were “at times early in the
morning, during months outside the peak tourism seasons and in inclement weather, or at places located on
the outskirts of the tourism district.” Ex. 319 at 6. I did not find Professor Gabe’s testimony or reports to
be helpful in terms of achieving whatever finding Plaintiffs and Pilots Association intended me to draw. In
addition to these critiques, Intervenor-Defendant has supplied several additional critical observations
concerning Professor Gabe’s soundings that I find persuasive on the subject. Sidman Brief on Remand at
23-24.
As attested to by witnesses Dr. Bill Horner, Nathan Young, and Seth Libby, the
press of people in the downtown intensifies on cruise ship days. Dr. Horner described it
as a dramatic growth in the press of people with a tremendous amount of traffic, particularly
in the waterfront area. Mr. Young described sidewalks busy enough that he prefers to walk
in the street when he has to go downtown on a cruise ship day. Mr. Libby described the
scene similarly, stating that cruise ship visits produce greater crowding. The witnesses also
testified that they avoid the downtown on cruise ship days due to the extent of the
congestion. Horner, Libby, and Young all testified that they voted in favor of the initiative
because they felt that elected officials had failed to act in a timely or meaningful manner
to curtail the impact of cruise ship visits. I find that these witnesses provided a fair and
accurate assessment of the impact of cruise ship visits in terms of both the intensification
of congestion and the undesirability of a trip downtown on “cruise ship days,” which
increasingly has come to mean most days of the cruise ship season.
Vehicular and pedestrian access to the waterfront is by way of either Main Street or
West Street. During peak tourism, accessing the waterfront by either street or either means
(by vehicle or by foot) is a tiresome affair. Not a single local witness suggested an
inclination to drive to the downtown. Driving into the area is disconcerting, in part, because
pedestrians are overflowing into the street. Traffic is also problematic at these times
because all manner of commercial conveyances crowd West Street to take on passengers
as they come ashore.15 As for walking to the waterfront, particularly via Main Street, all
local witnesses testified that they did not care to walk in the area when cruise ships are at
anchor due to excessive sidewalk congestion. These conditions exist despite considerable
effort to smooth the passage of cruise ship passengers at the waterfront.
In addition to witness testimony, there is circumstantial evidence from which I find
that the general public’s interest in accessing the downtown and the interest of cruise ship
passengers in doing the same are at loggerheads. Congestion is severe enough that the
Cruise Lines International Association and the Town previously explored the idea that Bar
Harbor give over to cruise passenger traffic most of the public pier to improve the
movement of vehicles and pedestrians. See Ex. 32 §§ 5.3, 5.8. This would effectively box
out more of Bar Harbor’s public waterfront for the primary function of facilitating cruise
ship passenger arrival and departure during the cruising season.
DISCUSSION
The assignment on remand is to return to one component of the Dormant Commerce
Clause claim. Before doing so, I pause to address a supposed knock-out punch thrown by
Plaintiffs in their briefs and at oral argument. Specifically, Plaintiffs assert that this case
should be decided based on Supreme Court precedent from 1915 associated with the local
regulation of street cars.
15 See, e.g., Ex 12A; Ex. 32 § 4.2. In addition to tour buses, there are vans, minibuses, motor coaches, taxis,
and bike tours. While the pulses of congestion are most keen in the mid-morning and afternoon, there is a
greater mid-day press as well, which the restaurateur members of APPLL seek to capitalize on.
A. South Covington
In South Covington & Cincinnati Street Railway Company v. City of Covington, 235
U.S. 537 (1915), the City of Covington, Kentucky, enacted an ordinance to regulate the
operation of street cars based on health and safety concerns. Because the streetcars in
question operated over the Ohio River and transported persons between Kentucky and
Ohio, the Supreme Court held that certain of the ordinance’s requirements but not others
violated the Commerce Clause since they would require the authorities in Cincinnati, Ohio
to comply with the requirements imposed by authorities in Covington, Kentucky, and, in
turn, Cincinnati could impose its own ordinance, which might be inconsistent with
Covington’s, such that “interstate business might be impeded by conflicting and varying
regulations . . . with which it might be impossible to comply.” Id. at 547–48.
The non-offending regulations involved design requirements including safety rails
to prevent passengers from falling from the back or front of the streetcars and a requirement
that the cars be kept clean, well ventilated, and fumigated. Id. at 548. The offending
requirements consisted of a limit on the number of persons who could ride on the streetcars
at one time and the number of streetcars that the railway company had to keep in service.
Id. at 549. It was held that toleration of the disallowed regulations would only lead to
“embarassments,” whereas toleration of the allowed regulations involved only incidental
impacts on commerce. Id. That was the long and the short of it.
I do not find South Covington to be controlling, though I recognize why it has appeal
to Plaintiffs and the Pilots Association as one in “a line of cases” that are concerned with
interstate transportation, as highlighted in National Pork Producers Council, 598 U.S. at
379 n.2. See also id. at 399 (Roberts, C.J., concurring op.) (“The Pike balance may well
come out differently when it comes to interstate transportation, an area presenting a strong
interest in ‘national uniformity.’” (quoting General Motors Corp. v. Tracy, 519 U.S. 278,
298 n.12 (1997)). The interstate transportation aspect of this case undoubtedly calls for
application of the Pike balancing analysis. This is clearly not a scenario in which a court
would summarily dismiss the Pike claim as occurred in National Pork Producers Council
for lack of a significant or substantial burden on interstate commerce. See Triumph Foods,
LLC v. Campbell, 156 F.4th 29, 48-50 (1st Cir. 2025) (describing the dismissal that
occurred in National Pork Producers Council).
As for the idea that South Covington summarily knocks out Bar Harbor’s Ordinance
based on the embarrassment of competing regulations, “the language of an opinion is not
always to be parsed as though we were dealing with language of a statute.” Reiter v.
Sonotone Corp., 442 U.S. 330, 341 (1979). “Instead, [Supreme Court] opinions dispose of
discrete cases and controversies and they must be read with a careful eye to context.” Nat’l
Pork Producers Council, 598 U.S. at 373–74. Cruise ships are not tethered by necessity to
separate task masters with inimical regulations. Cruise ships are not locked on a rail line
or interstate highway system. Based on local conditions, municipalities either welcome
the cruising public or they do not. When they do, some municipalities rationally wish to
cater only to cruising operations of a preferred magnitude, based on local conditions. These
desires grow out of local concerns not readily susceptible to a one-size-fits-all approach.
Cruise companies can fashion itineraries accordingly, assigning vessels to the ports that
welcome them. By imposing local limitations, no municipality presupposes that it has
thereby dictated the size or shape or number of cruise ships that cruise lines wish to
construct or to which other ports they might direct them on the open ocean. Moreover, to
the extent a cruise line’s business model runs up against a local regulation, it is most likely
the result of the incompatibility of the cruise line’s business model (particularly in the form
of vessel size and lower-berth capacity) with local conditions.
There simply is no South Covington “embarrassment” in this picture. Plaintiffs and
the Pilots Association have all along advised the Court that municipal participation in the
cruise industry trade is a voluntary affair between partners. They have indicated that they
are sensitive to the local congestion impact of their business model and as evidence of their
understanding, they have fastidiously avoided unworkable scenarios. Yet with this new
advocacy based on South Covington Plaintiffs lay bare the stark contention that any
municipal restriction that does not accommodate their largest vessels is categorically
unconstitutional and, greater still, an embarrassment to commerce. In my prior Decision
and Order I concluded that it is proper for municipalities to regulate the extent to which
they can accommodate cruise ships with increasingly high lower-berth capacities,
explaining that “this case illustrates that the impact of cruise tourism on local living
conditions is a hyperlocal concern that is not well suited to a one-size-fits-all regulatory
approach at the federal level.” Am. Dec. & Order at 53-54. The First Circuit affirmed that
determination. Accordingly, what I have now said on this issue is likely beside the point.
The South Covington argument is outside the bounds of the remand objective and has
received much more treatment than it deserves.16
B. Pike Balancing
The Constitution vests Congress with the power “[t]o regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const.
art I, § 8. The Commerce Clause not only confers on Congress the supreme authority to
regulate commerce but imposes a variety of constraints on state and local government
efforts to do the same in the absence of congressional action. Among these constraints is
one applicable to nondiscriminatory regulations that impose incidental burdens on
interstate commerce. This constraint on state and local regulation arises from the premise
“that the Commerce Clause not only vests Congress with the power to regulate interstate
trade [but also] ‘contain[s] a further, negative command,’ one effectively forbidding the
enforcement of ‘certain state [economic regulations] even when Congress has failed to
legislate on the subject.’” Nat’l Pork Producers Council, 598 U.S. at 368 (quoting
Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179 (1995)). The judicial
inquiry that attends the application of this restraint is commonly referred to as the Pike
16 In response to the First Circuit’s direction to evaluate the burden on commerce on other coastal towns,
APPLL, 147 F.4th at 72, Plaintiffs and Pilots Association contend that the Ordinance, if tolerated, will
impose “a reductive constraint on maritime cruise commerce” and lead to a “nightmare” of “numerically
disparate restrictions at other ports, reducing . . . commerce to the lowest common denominator.” Joint
Brief at 18 & n.24. I conclude that this observation is adequately answered by my rejection of the South
Covington argument. It stands to reason that as cruise ships grow in size with ever-increasing lower-berth
capacities, the number of ports that are suited to accommodate them will decrease in number, since cruise
lines are unwilling to make a shore visit unless a ship’s entire complement of passengers is able to come
ashore, typically in a single day.
balancing analysis, or “Pike balancing,” in reference to Pike v. Bruce Church, Inc., 397
U.S. 137 (1970). Pike balancing looks to judges to decide whether a particular state or
local regulation imposes burdens on commerce that are “excessive in relation to the
putative local benefits.” Pike, 397 U.S. at 142. Here, the burden of proving excessiveness
falls on Plaintiffs and the Pilots Association. Ass’n to Preserve. & Protect Local
Livelihoods, 147 F.4th at 65.17
This is hazardous as well as presumptuous work. See Nat’l Pork Producers Council,
598 U.S. at 381-82. “Preventing state officials from enforcing a democratically adopted
state law in the name of the dormant Commerce Clause is a matter of ‘extreme delicacy,’
something courts should do only ‘where the infraction is clear.’” Id. at 390 (quoting
Conway v. Taylor’s Executor, 66 U.S. (1 Black) 603 (1862)). In my prior Amended
Decision and Order, I concluded that the voters of Bar Harbor had acted wisely enough for
Pike purposes, based on a trial record that, in my view, displayed the Town Council’s
historic tendency toward excessive deference to the cruise line industry, a misleading effort
by Plaintiffs and the Pilots Association when it came to depicting peak tourism conditions
in Bar Harbor, and an industry business model that favors economies of scale without
special concern for local community impacts. Ultimately, that assessment was held to be
insufficiently founded, and so the question of the proper balance returns to me to resolve
based on my own findings and conclusions without affording deference to the Bar harbor
17 Plaintiffs and the Pilots Association argue that the burden falls on Defendant to demonstrate that the
Ordinance produces its intended benefits. Joint Brief at 21-22. My findings concerning peak congestion
and the benefits of the Ordinance are based on the entire trial record and I would make these findings
regardless of where the burden falls. The same is true of my ultimate assessment concerning Pike balancing.
voting public or penalizing Plaintiffs’ efforts to downplay the significance of peak
congestion.
As related in my findings, the Ordinance yields both substantial burdens on
interstate commerce and substantial local benefits of the kinds that the initiative’s authors
sought to achieve. Comparing the two interests is in some ways like inquiring “whether a
particular line is longer than a particular rock is heavy.” Nat’l Pork Producers Council,
598 U.S. at 381 (quoting Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S.
888, 897 (1988) (Scalia, J., concurring in judgment)). Still, that is the task. When I reflect
on the problem of articulating what the proper balance is, the one background circumstance
that most readily provides a workable pivot point is the divide between peak and shoulder
seasons. It has been an abiding personal impression, rational in my view, that what may
be fair and balanced for the peak season may not be fair and balanced for the shoulder
season. The record powerfully conveys the notion that Bar Harbor’s peak season is not as
suited to high lower-berth-capacity cruise ships, whereas the shoulder season most likely
is. In fact, the distinction between seasons is a major consideration when one is assessing
what an appropriate passenger disembarkation cap should be. If a 1,000-passenger cap can
be accommodated in the peak season, even a somewhat higher cap is one readily available
example of a “less burdensome means” that would serve in the shoulder season. Ass’n To
Preserve & Protect Local Livelihoods, 147 F.4th at 72.
When I consider the burdens and benefits described above in my findings, I am not
persuaded by Plaintiffs and Intervenor-Plaintiff’s that the burden imposed on their trade is
clearly excessive in relation to the putative local benefits during the peak summer season.
In the peak summer season tourism imposes substantial burdens on the Bar Harbor
downtown, burdens that are felt in a variety of meaningful and substantial negative ways
by local residents, mostly in relation to congestion, and always in relation to the quality of
municipal life. As applied during the peak season, the Ordinance is designed to and does
in fact achieve that amount of breathing room that makes an intolerable situation tolerable.
If one is up to one’s eyeballs in water, lowering the water beneath one’s nostrils is a
substantial benefit, indeed, an emergent need, even if the volume of water is not thereby
dramatically reduced.18 The Ordinance is in my view measured and reasonable for the
peak summer season, not clearly excessive in relation to the local benefits, because peak
season congestion has all but exhausted the voting public’s patience and tolerance, and that
exhaustion is the product of much more than mere marginal impacts. Plaintiff and the
Pilots Association’s less burdensome, “voluntary” alternative fails to account for the fact
that there is no predictive model to plan for a low-intensity tourism day and, given this fact,
I find it appropriately balanced for the Defendant to impose the 1,000-passenger cap across
the entire peak summer season.
As for the shoulder season, I find that Plaintiffs and Intervenor-Plaintiff’s protests
are much more sensible and that Defendant and Intervenor-Defendant’s opposition lacks
persuasive force. That is not to say that I believe that the residents of Bar Harbor should
be required to endure a level of cruise traffic during the shoulder season that ensures they
have no respite from the press of the peak summer tourism season; only to say that the
18 Plaintiffs and the Pilots Association calculate the cruise passenger contribution to congestion as
approximately seven percent. Joint Brief at 25.
1,000-passenger limitation, applied to every day of every week in the shoulder season is
really quite parsimonious from an objective standpoint. This hard limitation is difficult to
defend on a principled basis. The distinction between peak and shoulder seasons is
longstanding and self-evident. The Initiative authors’ failure to recognize and account for
the significant intensity fluctuation between the shoulder seasons and the summer season
appears more an act of indifference than a fair-minded effort to balance competing
interests. It is to be expected that the authors of this kind of initiative would have performed
their own Pike balancing long before I ever needed to. Yet I cannot see or infer that they
ever did. Instead, they presented the voters with one disembarkation limitation born out of
peak frustration. Under Pike, “the extent of the burden that will be tolerated will . . .
depend on the nature of the local interest involved, and on whether it could be promoted as
well with a lesser impact on interstate activities.” Pike, 397 U.S. at 142; see also APPLL,
147 F.4th at 67-68 (flagging a need to consider the possible effectiveness of less onerous
restrictions). In Bar Harbor, in the shoulder seasons, public disaffection with the local
burdens of cruise tourism could be managed as effectively by, for instance, periodic
accommodation of cruise ships with lower-berth capacities in excess of 1,000 passengers.19
That is my judicial calculus concerning the Pike balancing test and the Ordinance’s
1,000-passenger cap on daily disembarkations regardless of season. Needless to say,
problems of this kind are best addressed in a legislative venue. But popular initiatives are
19 Alternatively, Bar Harbor might significantly increase the passenger cap in the shoulder season but
decrease the number of cruise ship days, achieving thereby a measured increase in the total volume of cruise
ship tourism above what is permitted during the peak season.
the last resort of majorities who find no safe harbor by their representatives and litigation
is the last resort of losers in the democratic arena, leading inexorably to this act of judicial
rearrangement.
CONCLUSION
Based on my findings of fact I conclude that the Ordinance’s 1,000-passenger cap
is not clearly excessive in relation to its local benefits during the peak summer tourism
season but is clearly excessive in relation to the shoulder seasons. Accordingly, I declare
the Ordinance unconstitutional and unenforceable in all months other than July and August.
SO ORDERED.
Dated this 15th day of May, 2026
/s/ Lance E. Walker
Chief U.S. District Judge