Estate of Jack R. Pirozzolo v. Department of Marine Resources , 2017 ME 147 ( 2017 )


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  • MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions
    Decision:	 
    2017 ME 147
    Docket:	   Ken-16-489
    Argued:	   May	11,	2017
    Decided:	  July	6,	2017
    Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.
    ESTATE	OF	JACK	R.	PIROZZOLO	et	al.
    v.
    DEPARTMENT	OF	MARINE	RESOURCES	et	al.
    HUMPHREY,	J.
    [¶1]	 	 Christopher	 R.	 Goddu	 and	 the	 Estate	 of	 Jack	 R.	 Pirozzolo	 appeal,
    pursuant	 to	 M.R.	 Civ.	 P.	 80C,	 from	 a	 judgment	 of	 the	 Superior	 Court
    (Kennebec	County,	 Mullen,	 J.)	 that	 affirmed	 in	 part	 and	 vacated	 in	 part	 a
    decision	 of	 the	 Department	 of	 Marine	 Resources	 granting	 Joseph	 Porada	 a
    three-year	limited-purpose	aquaculture	lease	to	farm	oysters	and	quahogs	in
    Morgan	 Bay	 in	 Surry.	 	 The	 court	 vacated	 the	 decision	 insofar	 as	 it	 granted
    Porada	 a	 lease	 covering	 four	 acres,	 and	 remanded	 the	 matter	 to	 the
    Department	to	decrease	the	area	of	the	lease	site	from	four	to	two	acres.		The
    court	also	dismissed	as	duplicative	several	independent	claims	for	declaratory
    relief	brought	with	the	Rule	80C	appeal.		For	the	reasons	set	forth	below,	we
    conclude	that	the	judgment	is	not	final	and	therefore	dismiss	the	appeal.
    2
    I.		BACKGROUND
    [¶2]		On	February	18,	2011,	Joseph	Porada	submitted	an	application	to
    the	 Department	 for	 a	 three-year	 limited-purpose	 aquaculture	 lease	 covering
    four	 subtidal	 acres	 in	 Morgan	 Bay	 off	 the	 coast	 of	 Surry.	 	 Porada	 sought	 the
    lease	to	cultivate	American	oysters,	European	oysters,	and	quahogs.		A	group
    of	 property	 owners	 in	 the	 vicinity	 of	 the	 proposed	 lease	 site,	 including
    Jack	Pirozzolo1	 and	 Christopher	 Goddu	 (the	 Neighbors),	 intervened	 in	 the
    Department	proceeding.
    [¶3]		The	Department	held	a	total	of	three	public	hearings	on	Porada’s
    application	 on	 March	 25	 and	 27	 and	 June	 18,	 2013.	 	 A	 Department	 hearing
    officer	 issued	 a	 decision,	 dated	 March	 20,	 2015,	 recommending	 that	 the
    Department	 grant	 Porada’s	 lease	 application.2	 	 On	 May	19,	2015,	 the
    Department	issued	a	written	decision	that	largely	adopted	the	recommended
    decision	and	granted	the	application	with	conditions.
    [¶4]	 	 On	 June	 18,	 2015,	 the	 Neighbors	 filed	 a	 Rule	 80C	 petition	 in	 the
    Superior	Court	challenging	the	Department’s	decision	(Count	1)	and	bringing
    two	 independent	 claims	 for	 declaratory	 relief	 (Counts	 2	 and	 3).	 	 Intervenors
    1		Pirozzolo	died	in	August	2014.		The	Estate	filed	the	Rule	80C	petition.
    2		The	record	on	appeal	does	not	disclose	the	reason	for	the	twenty-one-month	delay	between
    the	hearing	and	the	recommended	decision.
    3
    Ann	    Mudge	       Backer,	     Nicholas	    Sichterman,	   and	   Mariah	   Hughs
    (the	Backer	Intervenors)	 filed	 a	 separate	 petition,	 which	 was	 consolidated
    with	the	Neighbors’	action.		On	September	29,	2016,	the	court	dismissed	the
    Neighbors’	independent	claims	because	they	were	duplicative	of	the	Rule	80C
    appeal.		As	to	the	Rule	80C	appeal,	the	court	affirmed	in	part	the	Department’s
    decision	to	grant	the	lease	application,	but	vacated	its	decision	regarding	the
    size	of	the	site	and,	concluding	that	a	Department	rule	in	effect	at	the	time	of
    the	 application	 restricted	 limited-purpose	 aquaculture	 leases	 to	 two	 acres,
    remanded	 and	 ordered	 the	 Department	 to	 reduce	 the	 area	 of	 the	 site	 from
    four	 to	 two	 acres.	 	 The	 Neighbors	 timely	 appealed	 pursuant	 to	 5	 M.R.S.
    §	11008	(2016)	and	M.R.	App.	P.	2.3
    II.		DISCUSSION
    [¶5]		“Generally,	in	Rule	80C	appeals,	a	remand	from	the	Superior	Court
    to	an	executive	agency	for	additional	decision-making	is	not	a	final	judgment.”
    Fox	 Islands	 Wind	 Neighbors	 v.	 Dep’t	 of	 Envtl.	 Prot.,	 
    2015 ME 53
    ,	 ¶	 9,
    
    116 A.3d 940
    .	 	 Pursuant	 to	 the	 rules	 and	 statutes	 governing	 administrative
    appeals,	we	limit	our	exercise	of	appellate	review	to	agency	actions	“that	fully
    decide[]	and	dispose[]	of	the	whole	cause	leaving	no	further	questions	for	.	.	.
    3		The	Backer	Intervenors	did	not	appeal.
    4
    future	 consideration	 and	 judgment	 by	 the	 administrative	 agency.”	 	 Bryant	 v.
    Town	of	Camden,	
    2016 ME 27
    ,	¶	12,	
    132 A.3d 1183
    	(quotation	marks	omitted).
    “On	rare	occasions	we	have	taken	direct	appeals	of	remand	orders	when	the
    remaining	 action	 is	 essentially	 ministerial,	 such	 as	 the	 formal	 issuance	 of	 a
    permit.”		Malonson	v.	Town	of	Berwick,	
    2003 ME 148
    ,	¶	2,	
    838 A.2d 338
    .		“If	the
    issue	which	the	parties	seek	to	present	to	this	court	might	be	affected	by	the
    action	 taken	 pursuant	 to	 the	 remand	 order,	 we	 will	 usually	 refrain	 from
    entertaining	 the	 appeal.”	 	 Wheeler	 v.	 Me.	 Unemployment	 Ins.	 Comm’n,
    
    477 A.2d 1141
    ,	 1145	 (Me.	 1984).	 	 “The	 requirement	 of	 a	 final	 judgment	 for
    appellate	 review,	 although	 not	 jurisdictional,	 is	 a	 long-standing	 prudential
    rule	.	.	.	intended	to	avoid	piecemeal	appeals	and	to	promote	the	efficient	and
    effective	 resolution	 of	 legal	 disputes.”	 	 Forest	 Ecology	 Network	 v.
    Land	Use	Regulation	Comm’n,	
    2012 ME 36
    ,	¶	16,	
    39 A.3d 74
    	(citation	omitted).
    Whether	 a	 judgment	 is	 final	 is	 an	 issue	 of	 law.	 	 See	 Murphy	 v.	 Maddaus,
    
    2002 ME 24
    ,	¶	8,	
    789 A.2d 1281
    .
    [¶6]	 	 The	 trial	 court’s	 remand	 order	 is	 not	 a	 final	 judgment	 for	 three
    reasons.		First,	the	Department’s	action	on	remand	could	affect	the	issues	and
    claims	 asserted	 in	 this	 case.	 	 The	 particular	 area	 of	 the	 bay	 selected	 for	 the
    revised	two-acre	site	may	be	relevant	to	the	Neighbors’	arguments	about	the
    5
    effects	 of	 the	 lease	 activity.	 	 Second,	 at	 oral	 argument,	 counsel	 for	 the
    Neighbors	 represented	 that	 it	 was	 possible	 that	 they	 would	 appeal	 from	 the
    Department’s	 decision	 on	 remand.4	 	 In	 light	 of	 our	 policy	 of	 avoiding	 the
    piecemeal	adjudication	of	appeals,	we	decline	to	reach	the	merits	to	render	a
    decision	      that	    may	        not	       finally	   dispose	   of	    the	    matter.	      	   See
    Forest	Ecology	Network,	
    2012 ME 36
    ,	¶	16,	
    39 A.3d 74
    .		Third	and	finally,	none
    of	the	three	exceptions	to	the	final	judgment	rule	applies	here.		See	Cassidy	v.
    City	of	Bangor,	
    2014 ME 44
    ,	¶	4,	
    88 A.3d 732
    .
    [¶7]		Because	the	Department’s	decision	as	to	where	and	how	to	reduce
    the	lease	site	to	two	acres	could	affect	issues	and	claims	in	this	case,	and	the
    Neighbors	 may	 subsequently	 appeal	 from	 the	 Department’s	 decision	 on
    remand,	 we	 conclude	 that	 the	 judgment	 is	 not	 final,	 and	 accordingly	 dismiss
    the	appeal.
    The	entry	is:
    Appeal	dismissed.
    4
    The	 arguments	 that	 the	 Neighbors	 have	 asserted	 in	 this	 appeal	 would	 be	 preserved	 in	 a
    subsequent	 appeal	 from	 the	 Department’s	 action	 on	 remand.	 	 See	 5	 M.R.S.	 §	 11001(1)	 (2016);
    M.R.	Civ.	P.	80C(m).
    6
    Sarah	 A.	 McDaniel,	 Esq.,	 Douglas	 McDaniel	 Campo	 &	 Schools,	 LLC	 PA,
    Westbrook,	 and	 Sarah	 A.	 Slack,	 Esq.	 (orally),	 Foley	 &	 Lardner	 LLP,	 Madison,
    Wisconsin,	 for	 appellants	 Christopher	 R.	 Goddu	 and	 the	 Estate	 of	 Jack	 R.
    Pirozzolo
    Janet	T.	Mills,	Attorney	General,	and	Lauren	E.	Parker,	Asst.	Atty.	Gen.	(orally),
    Office	 of	 the	 Attorney	 General,	 Augusta,	 for	 appellee	 Department	 of	 Marine
    Resources
    Kennebec	County	Superior	Court	docket	numbers	AP-2015-40	and	-41
    FOR	CLERK	REFERENCE	ONLY