ORDER ON DEFENDANT PORTLAND PILOTS' MOTION FOR
FURTHER FINDINGS AND CONCLUSIONS OF LAW AND RELIEF FROM ORDER
ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
E. Walker, Justice
the Court is Defendant Portland Pilots'
("Pilots") motion for further findings and
conclusions of law and relief from Order on Plaintiff Bay
Ferries' ("Bay Ferries") motion for preliminary
injunction. Pilots urges the Court to reconsider its March
14, 2018 injunction. Although the Court still finds cause to
grant the preliminary injunction, the Court will amend its
May 14, 2018 Order in accordance with Pilots' request, as
support of the grant of the preliminary injunction, the Court
makes the following findings of fact and conclusions of law.
A party seeking a preliminary injunction bears the burden to
demonstrate that "(1) it will suffer irreparable injury
if the injunction is not granted; (2) such injury outweighs
any harm which granting the injunctive relief would inflict
on the other party; (3) it has a likelihood of success on the
merits (at most, a probability; at least, a substantial
possibility); and (4) the public interest will not be
adversely affected by granting the injunction."
Bangor Historic Track Inc. v. Dep't of Agric, Food
& Rural Res., 2003 ME 140, ¶ 9, 837 A.2d 129.
Court finds Bay Ferries has demonstrated it will suffer
irreparable harm if a preliminary injunction is not granted.
The Court's finding is based primarily on Pilots'
March 8, 2018 letter threating to arrest The Cat and to file
a Notice of Claim of Lien with the National Vessel
Documentation Center. If Pilots chooses this strategy to
enforce the lien it claims to have for unpaid pilotage fees,
Bay Ferries has no adequate remedy at law. Such actions would
deprive Bay Ferries of the vessel it requires to conduct its
business and would likely result in damage to Bay
Ferries' credit, as well as cause harm to Bay
Ferries' public reputation.
Court further finds the harm Bay Ferries will suffer if the
injunction is not granted is greater than the harm which
granting the injunction will inflict on Pilots. If Defendants
succeed on the merits of this appeal, the injunction will be
lifted, and Pilots will be free to pursue collection of
unpaid fees due under the May 2017 rate. As is desired by
both parties, a preliminary injunction will merely preserve
the status quo until this Court rules on the merits of this
Court finds Bay Ferries has demonstrated a likelihood of
success on the merits. The Board of Harbor Commissioners
("Commission") sets pilotage fees by rule, and the
Commission is required to follow the rulemaking procedures
detailed in P. & S.L. 1981, ch. 98, § 6, as amended
by P. & S.L. 1993, ch. 34, when setting fees. The Court
finds it likely that Plaintiff will succeed in demonstrating
the Commission failed to follow proper rulemaking procedures
when it purported to increase the minimum pilotage fee on May
11, 2017. The rulemaking procedures as outlined in the
statute provide, in relevant part:
The commission may not adopt any rule other than as an
emergency without first presenting the rule to the Department
of Transportation for review and comment. The commission
shall send any proposed rules to the councils of [Portland
and South Portland] at the same time the proposed rules are
sent to the Department of Transportation. ... The rules are
effective 45 days from the date on which notice of such
rulemaking is sent to the city managers of Portland and South
Portland, addressed to the city councils of the cities....
P. & S.L. 1981, ch. 98, § 6, as amended by P. &
S.L. 1993, ch. 34. Pursuant to the statute, the Commission
should have notified MDOT of the proposed fee increase for
review and comment, and the new fee could not become not
legally effective until 45 days after the Commission sent
notice of the new fee to the city councils of Portland and
record is without evidence that such notice was ever sent to
MDOT or to the city councils. Pilots disputes this fact but
has presented no evidence on this issue to date. Responses to
FOAA requests from Plaintiff to the City Clerks of Portland
and South Portland appear to confirm the cities were not
given notice of the proposed rate increase. Because the
statute requires notice of the proposed rule to the cities of
Portland and South Portland in order to trigger effectiveness
of the rule, and because it appears such notice was not
given, the new fee purportedly established by the Commission
on May 11, 2017 likely never took effect.
in its March 14, 2018 Order denying Defendants' motions
to dismiss, this Court found Plaintiff has standing to bring
this claim due to a denial of due process by the Commission.
Bay Ferries, Ltd. v. Bd. of Comm'rs for the Port of
Portland, CUMSC-AP-2017-0036 (Me. Super. Ct, Cum. Cty.,
Mar. 14, 2018). That denial of due process further supports
Bay Ferries' likelihood of success on this appeal.
the Court finds the public interest will not be adversely
affected by granting the injunction. Neither party has argued
this issue extensively, and the Court finds no reason to deny
the injunction in the public interest.
explained in the Court's May 14, 2018 Order, Plaintiff
has shown good cause to waive the Rule 65(c) requirement that
it provide security, because Defendants are unlikely to incur
damages by the issuance of this injunction. As discussed
above, the fee approved by the Commission on May 11, 2017 is
not legally effective until 45 days after the Commission
sends notice of the new fee to the city councils of Portland
and South Portland. Because the record contains no evidence
that the Commission has sent notice to the cities of Portland
or South Portland, the fee is likely not effective.
preliminary injunction requested by Bay Ferries has been
granted based on the foregoing. However, the Court is
persuaded that its original order granting the injunction is
unnecessarily broad, and a more narrowly tailored order will
suffice to maintain the status quo as the parties have
requested. Therefore, the Court's May 14, 2018 Order is
amended to provide as follows:
Motion for a Preliminary Injunction is GRANTED. The Board of
Commissioners and Portland Pilots, Inc. are enjoined from
enforcing against Bay Ferries, Ltd. the $1200 pilotage fee
established by the Board of Commissioners on May 11, 2017,
pending the conclusion of Bay Ferries' Rule 80B appeal,
docket number AP-17-36. In the event that Bay Ferries'
Rule 80B appeal is denied, this injunction will be lifted and
the minimum pilotage ...