The future of the Maid of the Mist may not be so certain after all.
Three months after Gov. Andrew M. Cuomo announced a plan to “save” the Niagara Falls boat tours, the Maid’s competitor on the Canadian side is challenging the legality of the deal.
Hornblower Cruises filed suit Monday in State Supreme Court against the Maid and a slew of Cuomo administration officials for what it termed an “ill-considered and misguided maneuver” to keep the Niagara Falls company in business.
The lawsuit has the potential to disrupt the world-famous boat tours next year, when the Maid planned to build a new storage facility at the former Schoellkopf Power Plant on the American shore.
That facility was approved by Cuomo last year as a way to keep the “iconic” Maid of the Mist in operation after it lost the Canadian boat tours – and a key winter storage facility in Canada – to Hornblower.
But the suit labels the move to allow a new U.S. storage facility for the Maid as a “misguided and inexplicable effort to enable MaidCo to continue generating profits for itself” without a fair and equitable bidding process.
“NY State Parks has not explained its reasoning for providing MaidCo with this preferential treatment, and its reasons elude Hornblower,” the suit states.
Much of the company’s argument is based on the state’s previous position that the Maid was the “sole-source provider” of the boat tours because of its storage facilities on the Canadian side.
Those facilities, crucial to keeping the wooden boats safe during the icy winters, do not exist on the American side. State parks officials used that fact to argue in 2002 that a 40-year contract with the Maid of the Mist did not need to be put out to public bidding.
But the Maid lost control of those facilities and the entire Canadian tours last year when the Ontario government threw open the boat-tour operations to public bidding.
That means any new construction should have been put out to public bidding, Hornblower officials said.
“Indeed, if any company were to be entitled to receive the New York concession without public bidding at this time, it would be Hornblower – based on the very same ‘sole source’ argument that MaidCo advanced in receiving the 2002 New York license,” the suit states.
Hornblower takes the state to task for failing to put out to bid the construction of a new storage facility at the Schoellkopf site, despite the fact that the new construction takes place on state park land at the base of the Niagara Gorge.
“There is no basis in law, equity, or fundamental fairness for [State Parks Commissioner Rose Harvey] or any other New York State public official to favor one private company over others,” the suit states. “Indeed, this is exactly what the public bidding laws are designed to guard against.”
State officials have said no bidding was necessary because the $30 million in new construction by the Maid will be covered under an amendment to the 40-year contract between the Maid and the state.
But Hornblower argues that the state’s new agreement with the Maid “purports to shoehorn this massive capital project” into the current contract despite the revisions being “substantially beyond the scope of the original concession.”
The company, which runs luxury yacht tours at Ellis Island in New York City and at Alcatraz Island in San Francisco Bay, provides more than a dozen examples of legal precedent that favors the public bidding of contracts.
The signature case – Albert Elia Building Co. v. New York State Urban Development Corp. – involves the construction of the Niagara Falls Convention Center, a case that the suit says has “strikingly similar facts.”
In that case, the construction company challenged the state’s assertion that construction of a tunnel under the convention center could be covered under a change order and did not need to go out to bidding. A court sided with Elia and said the contract needed to be put out to bid.
The same applies to the Maid of the Mist, said Hornblower chief executive Terry MacRae. “We were definitely surprised that Parks and Recreation would not follow their own policies,” MacRae said. “Our view is just that the taxpayers of New York aren’t getting a fair shake, and something should be done about it.”
Hornblower wants the court to declare void a tentative agreement between the state and the Maid, to cover its attorneys’ fees and ultimately put the contract out to public bidding. It is represented by New York attorney Edward G. Kehoe and Niagara Falls attorney John P. Bartolomei.
Harvey, the parks commissioner, said in a statement that the state “is protecting our tourism industry in Niagara Falls and ensuring that this unique part of our heritage continues.” She stressed that the Maid will pay for the $32 million in proposed construction at the Schoellkopf site and will also pay the state $100 million more over the course of the contract than the original deal.
But MacRae said his company is willing to pay $100 million more than the Maid’s increased payments for the right to run the boat tours from both sides of the falls.
“It’s unfortunate that there’s not a positive and creative energy to create the best possible position for the State of New York,” MacRae said. “Instead, it’s protectionist and anti-change. I fail to see how that benefits the citizens of New York.”
Hornblower is set to take over the Canadian tours next year. Maid officials, who did not respond to messages left for comment, plan to operate tours on both sides of the falls this summer.