Wholehearted support for Islesboro

By Owen Casas | May 31, 2018

Hello, folks. I wanted to share my thoughts and some details about the ferry service rate change.

As most of you know, the changes to the ferry prices that went into effect Monday, May 21, disproportionately, and negatively, affect Islesboro more than other islands. I attended both of the public hearings Maine Department of Transportation and the Maine Ferry Service held on Islesboro. I recently reviewed the “Petitioners Complaint for Declaratory Judgment” (Islesboro’s formal appeal to the court) and wholeheartedly support the facts and complaints contained within.

I think it is appropriate to state that nearly everyone on Islesboro expected to see rates rise. Some of the proposed alterations and increases were very rational and although folks weren’t enthusiastically embracing the proposals, most were understanding of the need to generate additional revenues through rate increases.

Because of this, I was quite taken aback when notified (about an hour before the general public was) that a flat rate (which wasn’t previously discussed) of this magnitude (118-percent increase on one vehicle/one person/round trip) was accepted by the MDOT commissioner as “final.”

Not only is the final rate structure “an arbitrary, capricious and unfair approximation of the Islesboro ferry’s costs to the government” (taken from Islesboro appeal), MDOT did not follow a lawful process in generating this final document, as it relates to Maine’s Administrative Procedures Act (APA). I’ll explain.

Many big decisions made by governmental departments and bureaus are either directed by or approved by the state Legislature, one example being the hunting and fishing license fees, which require legislative approval for any fee increase.

Because the ferry service was organized before the Legislature created “major substantive rules” (needs voted approval by the Legislature) and “routine technical rules” (doesn’t necessarily need a vote in the Legislature but the agencies need to notify and submit the rule to the Legislature), all of their agency rulemaking is routine technical by default.

With this in mind, I spent many hours researching the process around routine technical rules, specifically, where MDOT was at in the process. Only a few short days before the rate increase was slated to take effect, MDOT’s attorney notified Islesboro that they were not operating under the process of routine technical rulemaking and “Although somewhat difficult to discern, MDOT seemingly utilized an adjudicatory process” (taken from Islesboro appeal).

This was news to many in the governmental offices I had been contacting on this issue. Both the Legislature's Executive Director's Office (which notifies committees of jurisdiction that an agency has submitted a new rule) and the Secretary of State's administrative rules coordinator (which records rules and ensures compliance with the Administrative Procedures Act) had requested and were waiting on MDOT to submit its new rule.

A week prior to the implementation date I had reached out to the Attorney General’s Office, wondering if they were going to approve the new rule as an “emergency.” Although the AG's Office verified they were working with MDOT, I would only later find out that the AG's Office was acting as MDOTs legal defense, not evaluating the “emergency rule.”

As we enter into the next phase of this illogical saga, the legal phase, here are some of the arguments presented by Islesboro to the court:

– That MDOT “improperly, unfairly, arbitrarily, wrongfully and unconstitutionally” raised “ferry rates to the point that many long-term island residents and businesses can no longer afford to live or do business on Islesboro.”

– That MDOT violated the Administrative Procedures Act and due process rights guaranteed by our state Constitution.

– That the new rate structure constitutes an illegal taxation without representation.

I’ll sign off with one of the biggest cruxes of this case. When MDOT held public hearings on the islands, which I greatly appreciate, the proposals discussed had been vetted through the Ferry Advisory Board, with their recommendation being either different rates for in-state and out-of-state residents or across-the-board increases for all tickets. Because of this, the public hearings were centered primarily on these two options.

However, the final decision, which is dramatically different than proposals discussed at the public hearings, “resulted from internal staff discussions at MDOT” (taken from the Islesboro appeal).

No public hearing was had on a flat-rate structure of this magnitude. No public comment was taken by MDOT on this “final” structure. No input from Islesboro could have been gathered on this structure because it was never discussed. As such, MDOT violated the Administrative Procedures Act and the court should void the new rate structure.

I look forward to continuing to work with Islesboro on appropriately resolving this critical issue. The livelihood of this island, and potentially others, depends on a rate structure that reflects the true costs of operation, with realistic and reasonable fees for service.

Rep. Owen Casas, I-Rockport, represents District 94, which includes Camden, Rockport and Islesboro.

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