BAR HARBOR — For the past month, town officials have been trying to figure out how to manage cruise ship traffic after a survey found that more than half of the 1,300-plus respondents felt that cruise ship tourism had an overall negative impact on the town. The Town Council has run through hours of discussion over multiple workshops, international cruise organizations have weighed in and potential daily passenger caps that were tossed out have been deemed, depending on who you ask, both not stringent enough and the end of the Bar Harbor cruise ship season as we know it.
Since the survey results, the council has sent its preliminary stab at reductions to the town’s Cruise Ship Committee for feedback. But it isn’t crystal clear on how far a local municipality can legally restrict cruise ships, especially one like Bar Harbor, where the vessels’ anchorages fall under federal jurisdiction in another town and passengers are tendered to private piers.
“I think the elephant in the room has been what authority does the town have,” said Eben Salvatore, the chairman of the Cruise Ship Committee and the chief of operations for the company that provides tendering for cruise ships in town.
Bar Harbor does have authority over the anchorages, even though they are technically in Gouldsboro, said Christopher Wharff, the town’s harbormaster. They are federal anchorages but coordination of anchoring vessels is placed upon the harbormaster.
The council has brought up the question before of what legally they can do, though the answer from the town’s attorney wasn’t exactly clear cut.
State law does not explicitly provide municipalities the power to restrict cruise ships from discharging passengers within their waters, but it can’t be interpreted as impliedly denying that power either, according to a memo forwarded to the council by its attorney.
The town “probably” has the authority to restrict or even ban cruise ships from anchoring or discharging passengers within the town, though the state could preempt such a ban after the fact via legislation, akin to the ongoing battle over cruise ships in Key West, Fla. Restrictions could also be at risk of being deemed unconstitutional, according to the memo.
Town officials are no longer talking about an outright ban, which would likely elicit a legal challenge, but they have talked about daily passenger caps, limits on the number of ships in town on a single day and the number of days they could come a month.
The town currently has passenger caps, but they aren’t legally binding or written into an ordinance.
States and municipalities do have some say on what happens in their waters but, generally, it is limited to health and safety laws, said Charles Remmel, a longtime maritime lawyer at Kelly, Remmel & Zimmerman in Portland who taught admiralty law at the University of Maine School of Law.
He pointed to a U.S. Supreme Court Case, where the court found that some of Washington state’s extra safety rules on oil tankers that were put in place in response to an oil spill in the Puget Sound were invalid and preempted federal law.
The court often looks to keep uniformity regarding maritime commerce so ships can travel across their routes under a single set of rules. The court did uphold some of the rules but requiring double hulls in the state’s shipping lanes was an overreach and would basically require double hulls for the full extent of the vessel’s journey, not just in Washington waters.
Rammell didn’t know all the details of the situation in Bar Harbor but said limiting ship size or number of passengers is getting close to the line of trying to regulate the industry, not health and safety.
Jill Goldthwait, a member of the town council, has argued that the addition of cruise ships does put a strain on the town’s fire and police departments as well as the hospital due to crowding and other issues.
“I think there is a case to be made to limit the number of people in town,” she said.
Potential legal pitfalls have been brought up by industry group Cruise Lines International Association, though the organization has said that it wants to work with the town to address its concerns.
“To the extent a local government acts arbitrarily to compromise port access by a federally authorized vessel, the diminution in value of the vessel can amount to an unconstitutional taking by the local government,” wrote Kelly Craighead, the president of CLIA, in a letter to the council.
Cruise lines make major design and investment decisions based on the accessibility of ports and the value of a vessel could be dramatically diminished if a government placed its port off-limits, she wrote.
The three other island towns have made moves to stop cruise ships, though largely in an indirect sense.
Tremont disallowed the transfer of more than 50 passengers from vessels at public or private docks, moorings, floats, piers and wharves within several different shoreline zoning districts in town; Southwest Harbor likewise banned the disembarkation of passengers from its public docks; Mount Desert does not allow tenders to use the municipal facilities.
“If somebody had a private dock and they wanted to tender them, they could do that,” said Durlin Lunt, Mount Desert’s town manager.
That decision in Mount Desert came after the Pearl Mist pulled into Northeast Harbor in 2016. That visit sparked backlash and prompted community meetings so large that they needed to be moved to the school auditorium in order to hold all the people who wanted to attend.
But since then, cruise ships have fallen off the radar in Northeast Harbor.
“There haven’t been any cruise ships going in and requesting to use the other docks,” Lunt said. But as for Bar Harbor, “they’ve got a whole different situation than we do.”
Salvatore wanted to work with the council on possible solutions that avoid the potential cuts or more stringent caps. Cruise ship passengers make up less than 10 percent of the total tourism to Bar Harbor and he reasoned that 2,000 fewer people in town on any given day as a result of dropping a cruise would arguably go unnoticed in the summer.
“It’s more about making adjustments that people feel or notice,” he said.
Although he wanted to avoid having lawyers parse over the potential new cruise ship management plan or have a judge determine what is and isn’t allowed, the town’s jurisdiction should still be part of the conversation, according to Salvatore.
He pointed to the state Attorney General Aaron Frey’s opinion on a previous bill that looked to halt cruise ships coming to the southern waters of Mount Desert Island. Frey felt that an attempt to ban certain types of commercial vessels outright would be unconstitutional and the bill received an “ought not to pass” committee vote.
Salvatore said that in Bar Harbor it wasn’t a matter of who would win in court, but what was best for the entire community. He didn’t want to see the town go down a path like Key West and hoped things could be resolved amicably.
“That’s all avoidable,” he said. “We’re not Key West.”
Note: This story has been updated with comments from the Bar Harbor harbormaster.