Estate of Jack R. Pirozzolo et al. v. Department of Marine Resources et al. — 2017 ME 147

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.

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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.

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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.

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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

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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).

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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