A superior court judge has issued a stay of the ferry rate lawsuit filed by Islesboro against Maine Department of Transportation to allow the state agency to hold a public hearing.

The hearing is scheduled for Wednesday, Nov. 28, at noon, at the University of Maine’s Hutchinson Center, 80 Belmont Ave., Belfast. During the public hearing, Maine DOT will receive comments on the flat-rate ferry fees that have been in place since May 21. In addition, a new proposal is included to allow a surcharge on the rates if costs of the Maine State Ferry Service increase or if ridership decreases.

On Nov. 2, the court ordered the stay, which remains in effect “until Jan. 1, 2019, or until rulemaking is complete regarding Tariff No. 8.” The public hearing is part of the rulemaking process.

In her order, Justice Michaela Murphy noted that Islesboro has “a likelihood of success” in proving that rulemaking is required of Maine DOT when setting new ferry rates, officially known as tariffs.

Maine DOT has said it can use an adjudicatory process to set rates. Further, Maine DOT has argued, “Maine DOT has never established tolls through rulemaking and has consistently established tolls through adjudicatory proceedings.” Maine DOT said the “statute is not ambiguous” and allows Maine DOT to select which method — rulemaking or adjudicatory — to use.

The procedure used to establish Tariff No. 8 is one of the concerns brought forth by Islesboro, which has seen the largest jump in ferry rates since they took effect. Maine DOT oversees Maine State Ferry Service, which operates ferry services in Penobscot Bay.

In its initial lawsuit filing, Islesboro contends Maine DOT should have followed the rulemaking process under the Administrative Procedure Act. Maine DOT countered that because no procedure is expressly stated in state statute, it could chose the method.

Murphy refuted that argument and said, “Thus, the lack of an express requirement to use rulemaking cannot grant an agency the discretion to use an adjudicative process in a situation where the (Administrative Procedure Act) would otherwise require rulemaking. Instead, for an agency to have such discretion, a statute would need to expressly authorize the agency to utilize the adjudicative process.”

Maine DOT increased rates to offset a projected budget shortfall. Its original proposal to increase the rates to Penobscot Bay islands would have charged different rates based on residency; however, following public outcry, the DOT reconsidered.

Islesboro residents continue to fight the increase they say came as a surprise to islanders. An increase of some kind was anticipated but Islesboro residents advocated for an across-the-board percentage increase to previous rates. The new tariff imposes a flat-rate fee for all ferries servicing Penobscot Bay islands, including Vinalhaven, North Haven, Swan’s Island, Frenchboro, Islesboro and Matinicus.

In addition to the public hearing, written comments are being accepted until Dec. 12. Written comments should be submitted to James Billings via email to james.billings@maine.gov, or regular mail to James Billings, Esq., Legal Division, Maine Department of Transportation, 16 State House Station, Augusta, ME 04333-0016.

The proposed rule to be discussed is available online at https://www1.maine.gov/mdot/rulemaking.