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Bay Ferries, Ltd. v. Board of Commissioners

Superior Court of Maine, Cumberland

June 8, 2018

BAY FERRIES, LTD., Plaintiff
v.
BOARD OF COMMISSIONERS FOR THE PORT OF PORTLAND and PORTLAND PILOTS, INC., Defendants.

          ORDER ON DEFENDANT PORTLAND PILOTS' MOTION FOR FURTHER FINDINGS AND CONCLUSIONS OF LAW AND RELIEF FROM ORDER ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

          Lance E. Walker, Justice

         Before 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 outlined below.

         In 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.

         The 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.

         The 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 appeal.

         The 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 South Portland.

         The 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.

         Furthermore, 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.

         Finally, 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.

         As 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.

         The 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:

         Plaintiffs 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 ...


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