DOT admits flat rate wasn't discussed

Court will first tackle procedure used to approve ferry rates

By Stephanie Grinnell | Jul 06, 2018
Photo by: Susan Mustapich The Margaret Chase Smith ferry leaves the Lincolnville terminal en route to Islesboro.

A court will rule on the legality of the procedure used to set a new flat-rate ferry fee before considering other arguments in a lawsuit filed by the town of Islesboro against Maine Department of Transportation.

The order contained in the case file at Kennebec Superior Court, which is neither signed by a judge nor dated, states: “The Court shall initially hear and decide the legal question of whether MDOT is required to follow rulemaking procedures in accordance with the Administrative Procedure Act when establishing tolls for the Maine State Ferry Service.”

The procedure is one of the concerns brought forth by Islesboro, which has seen the largest jump in ferry rates since they took effect May 21. Maine DOT oversees Maine State Ferry Service, which operates ferry services in Penobscot Bay.

In its initial filing, Islesboro contends Maine DOT should have followed the rulemaking process under the Administrative Procedure Act. However, in a response filed June 13 to the motion to specify the future course of proceedings, Maine DOT argues it uses an adjudicatory process to establish ferry tolls.

Further, Maine DOT argues, “Maine DOT has never established tolls through rulemaking and has consistently established tolls through adjudicatory proceedings.” Maine DOT argues the “statute is not ambiguous” and allows Maine DOT to select which method — rulemaking or adjudicatory — to use.

June 6, Maine DOT filed its answer and affirmative defense to Islesboro’s original complaint May 21 — the first day of the new rates. The new rates were approved in April and took effect in May.

In the answer, Maine DOT “admits that the (Ferry Service) Advisory Board did not consider the rate structure that Maine DOT ultimately implemented.”

Islesboro’s objections to the rate increase center largely on the argument that if the flat-rate structure had been pitched publicly, Maine DOT would have heard concerns from islanders in advance.

Maine DOT also states, among other things, its affirmative defenses: Plaintiffs (Islesboro) lack standing; fail to state claims upon which relief can be granted; and Maine DOT invokes sovereign immunity. According to information online at law.cornell.edu, “sovereign immunity was derived from British common law doctrine based on the idea that the King could do no wrong.” It is commonly interpreted to mean a state agency cannot do anything illegal.

Islesboro Town Manager Janet Anderson said June 29 she was advised by the attorney representing the town that Maine DOT has made "some admissions" but has until mid-July to respond fully to the lawsuit.

Islesboro residents are fighting the flat-rate ferry rate increase they say came as a surprise to islanders. An increase of some kind was anticipated, to offset a projected budget shortfall, 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.

The rate increases unfairly impact Islesboro, the lawsuit argues, while other Penobscot Bay islands are seeing smaller increases — or in Matinicus’ case, a significant decrease. Islesboro residents sounded the alarm in May about the potential demise of the commuter island, which is 3 miles from Lincolnville Beach. The increased cost of leaving the island, residents said, could result in some moving to the mainland and others leaving the island less frequently.

In increasing the rates to offset the potential budget shortfall, Maine DOT projected an increase in ridership to Islesboro. Maine DOT, which operates the ferry service, tracks ferry ridership manually, according to spokesman Ted Talbot.

The new rates took effect at the end of May and do not reflect much change year over year: In May 2017, 8,041 vehicles and 18,047 passengers used Islesboro’s ferry; in May 2018, there were 7,654 vehicles and 18,326 passengers transported, according to numbers provided by Talbot.

 

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