Pike Balancing Re-Energised: The First Circuit’s Refocus on Fact-Finding in Dormant Commerce Clause Cases
Commentary on Penobscot Bay & River Pilots Ass’n. v. Town of Bar Harbor, Nos. 24-1317 etc. (1st Cir. Aug. 11, 2025)

1. Introduction

Bar Harbor, Maine, enacted a voter-initiated ordinance capping the number of cruise-ship passengers allowed to disembark within the town limits at 1,000 persons per day. Local piers, tender owners, tourism businesses, and the Penobscot Bay & River Pilots Association sued to block enforcement. They alleged federal and state pre-emption, Due Process violations, and multiple Dormant Commerce Clause (DCC) theories—discrimination, “continuous flow,” and Pike balancing. After a bench trial the district court largely sided with the Town, granting only narrow declaratory relief for visiting crewmembers.

On appeal, the First Circuit (Barron, C.J., writing; Breyer, J. (RET.), Kayatta, J.):

• Affirmed dismissal of all pre-emption and discrimination claims;
• Dismissed as moot the crew-access pre-emption piece after the Town amended its code; but
• Vacated and remanded the judgment rejecting the Pike claim, holding that the district court failed to weigh properly (i) the magnitude of interstate burdens and (ii) whether less-restrictive means could achieve the Town’s congestion goals.

The decision therefore re-energises the fact-intensive side of Pike balancing, clarifies when “continuous flow” cases are inapplicable, and sharpens the “similarly-situated” inquiry in discrimination analysis. These clarifications supply the decision’s precedential heft.

2. Summary of the Judgment

1. Maine-law Pilotage Pre-emption. The Town’s cap does not intrude into the State’s pilotage “field.” Pilots remain free to guide vessels; the statute contains no contrary command.
2. Federal Pre-emption. No conflict with immigration, Coast Guard inspection rules, or federal anchorage designations. The Ordinance regulates only shore-side disembarkation, not vessel operation or “entry.”
3. Crew-Access Issue. District court correctly saw a potential conflict with 33 C.F.R. §105.237 but, after the Town’s subsequent amendment exempting seafarers, appeals on that point were dismissed as moot.
4. Due Process. Cap survives rational-basis review; reduction of cruise congestion is a legitimate aim.
5. Dormant Commerce Clause – Discrimination & Continuous-Flow.
   • Cruise lines and land-based hotels are not “similarly situated.” Thus no facial or practical discrimination.
   • “Continuous-flow” cases (Bibb, Southern Pac., Raymond) apply only where a rule obstructs a carrier’s through passage—unlike Bar Harbor’s voluntary port-of-call rule.
6. Dormant Commerce Clause – Pike Balancing. District court erred by (a) understating an 80–90 % loss in cruise-visitor volume and ripple effects on other ports, and (b) failing to gauge how far congestion relief extends beyond the waterfront or to examine plausible, less-burdensome alternatives. Remand required.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Pike v. Bruce Church (1970) – Cornerstone test for non-discriminatory burdens; revived here with insistence on granular findings.
• Bibb (1959); Southern Pacific (1945); Raymond Motor (1978) – “Continuous flow” safety cases restricting state truck/train mandates. First Circuit confines them to rules impeding through-traffic.
• Exxon v. Maryland (1978) – The DCC does not guarantee particular business models; used to reject the argument that high-berth ships possess a protected right to operate everywhere. But Court distinguishes situations where overall market capacity plummets (here, cruise tourism).
• Tracy (1997) – “Similarly-situated” requirement in discrimination cases. Key to finding that cruise lines and hotels, though competing for tourists, sell different products.
• National Pork (2023) – Recent Supreme Court fracture; First Circuit mines the footnote on rare non-discriminatory invalidations to cabin Plaintiffs’ “continuous flow” theory.
• Kassel (1981), Clover Leaf (1981) – Emphasise courts’ duty to consider less-burdensome means; informs remand instruction.

3.2 The Court’s Legal Reasoning

3.2.1 Rejecting “Continuous Flow” & Discrimination

The panel reasons that a cruise ship may bypass Bar Harbor entirely; the Ordinance conditions voluntary entry, not through-passage. Therefore the “continuous flow” doctrine—born from highway and rail safety cases—is inapposite.

On discrimination, the plaintiffs faced a two-step hurdle: show that (1) local hotels are favoured competitors and (2) they are similarly situated to cruise lines. Even if they compete for tourist dollars, the “product” (floating accommodation vs. land lodging) differs enough, per Tracy, to negate the inference of protectionist motive.

3.2.2 Re-calibrating Pike Balancing

While agreeing that congestion relief is a legitimate objective, the First Circuit holds that the district court did not quantitatively or geographically connect that benefit to the drastic 80–90 % contraction in cruise visitors or to knock-on effects at other Atlantic ports. Nor did it test alternative measures such as:

• Time-of-day or berth-specific scheduling;
• Incremental caps (seasonal, pier-specific);
• Traffic-management or shore-excursion dispersion policies;
• Expanded tender staging or infrastructure investment funded by existing per-passenger fees.

Without such findings, the appellate court cannot confirm that the burden is not “clearly excessive.” Remand therefore directs explicit fact-finding on both sides of the ledger.

3.2.3 Mootness & Narrow Declaratory Relief

By amending its code to exempt “seafarers” following 33 C.F.R. §105.237, the Town eliminated any live case or controversy over crew access. This triggered Article III mootness and vacatur of related cross-appeals, underscoring the court’s unwillingness to issue advisory opinions.

3.3 Likely Impact of the Decision

• Litigation Roadmap. Trial courts confronted with local limits on tourism (or other non-discriminatory regulations) must build a robust evidentiary record on: scale of interstate burden, spatial scope of local benefit, and feasibility of alternatives.
• Cruise-Port Relations. Ports nationwide exploring passenger caps now face a precedent demanding granular justification—especially if caps are aggregate, not per-vessel.
• “Continuous Flow” Doctrine. The First Circuit’s narrow reading curtails efforts to label voluntary port-call rules as per se invalid obstructions to interstate commerce.
• Hotel-vs-Cruise Competition. The “different products” rationale could influence fights over occupancy taxes, environmental surcharges, or zoning that differentially burden water-borne lodging.
• Municipal Strategy. Towns may respond by commissioning impact studies, tailoring caps to peak days/locations, or investing passenger-fee revenue in crowd-management infrastructure to withstand Pike review.

4. Complex Concepts Simplified

• Dormant Commerce Clause (DCC) – Though the Constitution gives Congress power to regulate interstate commerce, courts infer a “dormant” restraint: states and towns cannot unduly hinder that commerce absent federal authorisation.
• Discrimination vs. Burden.
  • Discriminatory laws target out-of-staters and are “virtually per se” invalid unless no reasonable alternative exists.
  • Burdensome but non-discriminatory laws undergo Pike balancing.
• “Similarly Situated.” To prove discrimination, the out-of-state business must be essentially the same “kind” as the allegedly favoured in-state business.
• Pike Balancing Test. A sliding-scale inquiry: weigh (i) how much a rule hinders interstate commerce against (ii) how much local good it does. If burdens are “clearly excessive,” the rule falls.
• Continuous-Flow Cases. Earlier Supreme Court decisions striking down state safety rules obstructing through-traffic (e.g., truck length limits) even without discrimination, because they forced carriers to detour or re-configure equipment mid-journey.
• Pre-emption. State or town laws are void if (a) Congress explicitly occupies the field, (b) compliance with both laws is impossible, or (c) the local law frustrates federal objectives.

5. Conclusion

Penobscot Bay & River Pilots elevates the evidentiary demands of Pike balancing. The First Circuit refuses to bless a sweeping daily cap based on broad notions of “congestion” without rigorous findings on where the problem exists, how much commerce is curtailed, and whether narrower tools could suffice. At the same time, it reins in expansive use of the “continuous flow” doctrine and clarifies that different-product competitors (cruise lines versus hotels) are not automatically “similarly situated.” Municipalities crafting tourism or environmental restrictions must now prepare substantive records or risk a remand—and potential invalidation—under Pike.