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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brandal v. State, Commercial Fisheries Entry Commission (02/03/2006) sp-5982
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| HENRY D. BRANDAL, | ) |
| ) Supreme Court No. S- 11770 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3DI-04-00065 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| COMMERCIAL FISHERIES | ) |
| ENTRY COMMISSION, MARY | ) [No. 5982 - February 3, 2006] |
| McDOWELL and FRANK | ) |
| HOMAN, Commissioners, and | ) |
| BRUCE TWOMLEY, Chairman, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Dillingham, Fred Torrisi, Judge.
Appearances: James Vollintine, Anchorage, for
Appellant. Zachary P. Falcon, Assistant
Attorney General, and David W. M rquez,
Attorney General, Juneau, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
This case arises from the Commercial Fisheries Entry
Commissions (CFEC) denial of Henry Brandals application for a
limited entry permit to fish in the Chignik purse seine fishery.
Brandal, who has lived and fished in Kodiak for four decades,
initially applied for a permit in 1977 and received a recommended
decision denying his application in 1982. But the application
was not officially denied for another twenty-two years, during
which Brandal continued to fish.
Brandal appeals the superior courts affirmance of the
CFECs decision on both substantive and procedural grounds. He
alleges that the CFEC erred in calculating his income dependence
points under the Limited Entry Act and that the regulations
relied upon by the CFEC were improperly promulgated under the
Administrative Procedures Act. In addition, he claims that the
delay violated his right to due process, and he seeks a remedy
under the doctrines of unreasonable delay and quasi-estoppel.
But because Brandal was not originally entitled to a
permit and the CFECs 1982 recommended decision provided Brandal
with ample notice that his application was likely to be denied,
we affirm the judgment of the superior court.
II. FACTS AND PROCEEDINGS
A. Factual History
The facts in this appeal are undisputed. Henry
Brandal, a Kodiak resident, has fished in the Chignik purse seine
fishery since 1965, when he worked as a crew member for his
grandfather. He started working for his father as a skiff person
in 1966, at age nine, as part of a family fishing operation. He
held a commercial license and worked as a crew member for his
father from 1967 through 1972, but his father was the one who
held the gear licenses and made landings in the Chignik fishery.
Between 1970 and 1973 Brandal would operate the boat on occasions
when his father was absent due to illness, but the gear license
was never transferred to Brandal.
Brandal was a gear license holder in 1974 and applied
for a Chignik limited entry permit on October 27, 1977 based on
his participation in the fishery as a first-time gear licensee in
1974. Twenty points are needed to qualify for an entry permit,1
and Brandal claimed twenty-eight points in his application: one
point for each year of crew participation from 1965 to 1972
(eight points total); six points for investment in a vessel and
gear; four points for availability of alternative occupations;
six points for 1972 income dependence; and four points for 1971
income dependence.
B. Procedural History
In February 1978 the CFEC found that Brandal had zero
points, and denied his application. The following month,
Brandals father requested a hearing on the application. A
hearing was held in Seattle in February 1979 and, on April 14,
1982, the hearing officer issued a recommended decision denying
Brandals application, finding that Brandal should only be awarded
ten points on his application. The officer awarded Brandal six
points for crew member participation from 1967 through 1972 and
four points for availability of alternative occupations, for a
total of ten points. The income dependence points that Brandal
had claimed for 1971 and 1972 were denied because he did not
participate as a gear license holder in either year, a
requirement for earning points under the regulation.2
During the pendency of his application Brandal was
issued an interim permit that allowed him to continue fishing in
the Chignik fishery. Twenty-two years later, on April 14, 2004,
the CFEC issued a final decision that awarded Brandal two
additional points for crew participation in 1965 and 1966, but
denied his application because it fell short of the necessary
twenty points.
Brandal appealed the CFECs decision to the superior
court, challenging the CFECs findings on past participation and
income dependence. He also claimed he should have been awarded
unavoidable and special circumstances points. He also claimed
that the CFECs entry permit policies violated the Due Process and
Equal Protection Clauses of the United States and Alaska
Constitutions, as well as the rulemaking requirements of the
Alaska Administrative Procedures Act. Finally, Brandal contended
that the CFECs twenty-two-year delay in issuing a final decision
deprived him of due process. In November 2004 the superior court
denied all of Brandals claims and affirmed the CFECs decision.
Brandals petition for rehearing was also denied, and this timely
appeal followed.
III. DISCUSSION
A. Standard of Review
When reviewing an agencys administrative decision, we
independently review the merits of an administrative
determination3 and are not required to give deference to the
lower courts determination.4 We apply four standards of review
to administrative decisions: (1) the substantial evidence test
for questions of fact; (2) the reasonable basis test for
questions of law involving agency expertise; (3) the substitution
of judgment test for questions of law where no expertise is
involved; and (4) the reasonable and not arbitrary test for
review of administrative regulations.5 Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.6 We review questions of law
and issues of constitutional interpretation de novo under the
substitution of judgment standard.7
B. The CFECs Calculation of Brandals Points
1. The gear license requirement and the special
circumstances provision
The Limited Entry Act, enacted in 1973, is designed to
promote the conservation and the sustained yield management of
Alaskas fishery resource and the economic health and stability of
commercial fishing in Alaska by regulating and controlling entry
of participants and vessels into the commercial fisheries in the
public interest and without unjust discrimination.8 To this end,
the Act restricts use of commercial fisheries to persons who have
established economic dependence on the fishery by fishing while
holding gear licenses.9 The CFEC administers the Act by
assigning points to applicants based on their past use of the
fishery.10 Those who score twenty points or higher (on a scale
ranging from zero to forty) are entitled to permits.11
Since 1973 a line of cases interpreting the Limited
Entry Act has clarified the general requirements for obtaining a
permit and the particular circumstances under which points can be
awarded. In Isakson v. Rickey,12 we held that a portion of the
Act, codified in AS 16.43.260(a), denying permits to those who
did not possess a gear license before January 1, 1973 violated
the Equal Protection Clauses of both the Alaska and federal
constitutions. As we noted, this requirement undercut one of the
stated purposes of the Act by discriminating against many
applicants who would be able to demonstrate substantial indicia
of hardship as a result of their exclusion from commercial
fishing.13 As a result of this decision, the CFEC created a new
class of applicants, composed of fishers who first obtained
licenses in 1973 and 1974, and permitted these applicants to
claim the gear license points necessary to obtain a permit.14
In Commercial Fisheries Entry Commission v. Templeton,15
we considered the question whether a fisher whose gear license
was held in the name of a partner in 1971 and 1972 could claim
gear license points. Templeton, who was a co-owner and operator
of the fishing vessel, relied on a regulation allowing an
applicant to claim up to ten points if special circumstances
exist such that an applicants income dependence is not
realistically reflected by his income dependence percentage for
the years 1971 and 1972.16 Because allocating one permit between
two partners solely on the fortuitous circumstances of which one
held the gear license in two given years does not realistically
weigh the relative hardship which each partner would suffer by
denial of a permit, we affirmed the superior courts award of ten
points for income dependence and an entry permit.17
We clarified the Templeton holding in Kalmakoff v.
State, Commercial Fisheries Entry Commission.18 Kalmakoff, who
sought a permit to fish in the Chignik purse seine fishery, had
fished under another persons license in 1971 and 1972, but he had
been a crew member rather than a co-owner of the boat.19 We
declined to extend Templetons holding to crew members, noting
that crew members were less likely to suffer hardship from being
forbidden to fish than gear license holders or co-owners
operating under a partners gear license.20
2. Brandals claim under the special circumstances
provision
Brandal claims that, because he obtained his gear
license in 1974, his income dependence is not realistically
reflected by his income dependence percentage for the years 1971
and 1972, entitling him to special circumstances points under 20
AAC 05.630(b)(2). This argument is unpersuasive for two reasons.
First, special, as used in 20 AAC 05.630(b)(2), assumes
that the usual has not occurred, or conversely, that something
unusual has occurred.21 Circumstances other than having been a co-
owner who fished on a partners gear license can qualify as
special,22 but we [have] not h[e]ld that being a crew [member], as
opposed to a gear license holder or a gear license holders
partner, is a special circumstance. 23 Although Brandal worked on
his fathers boat in the years preceding 1974, he did so as a crew
member, not a co-owner. For that reason, his situation is
analogous to Kalmakoffs, which was not covered by the special
circumstances exception.
Second, although Isakson permits those who first
obtained gear licenses in 1973 and 1974 to apply for permits, it
does not forbid the CFEC from favoring 1971 and 1972 gear license
holders over Isakson applicants. [I]t was reasonably necessary,
in furtherance of the purpose of evaluating and avoiding
hardship, to favor people who had held gear licenses in 1971 or
1972 over people who first held gear licenses after 1972 and
people who last held gear licenses before 1971.24 Those who held
licenses in the years immediately preceding the passage of the
Limited Entry Act were more likely to suffer hardship from being
forbidden to fish than former licensees who had changed careers
and future licensees who had not yet committed themselves to
making a living from the fishery.25 The special circumstances
provision thus focuses not on hardship in general, but rather on
the hardship that an established, career fisher would have
experienced in 1973 from suddenly being forbidden to fish.
Admittedly, hardship evaluated as of 1973 is not the same thing
as present hardship, but this is a choice . . . which the
legislature has explicitly made.26
Brandal began fishing as a crew member long before the
passage of the Limited Entry Act, but he did not acquire a gear
license until 1974 and he was not the co-owner of a vessel in
1971 or 1972. Although the CFECs unconscionable delay has given
Brandal over two decades to invest in fishing equipment, and
Brandal may experience significant economic hardship from being
forced to change careers, he does not fall within the narrow
class of fishers that the special circumstances provision was
designed to protect. As we emphasized in Isakson, the Limited
Entry Act contemplates that hardship w[ill] be determined as of
January 1, 1973.27 Without condoning the Commissions conduct, we
hold that the CFEC did not err in refusing to award Brandal
additional points under the special circumstances provision.
C. The CFECs Compliance with the Administrative Procedures
Act
Brandal contends that, under the Administrative
Procedures Act,28 the CFEC was required to formally publish and
adopt regulations setting out its policy on income dependence and
informing Isakson applicants that their applications were
inherently futile unless they were partners of gear licensees in
1971-72. But Brandals premise that no Isakson applicant who was
not the partner of a gear license holder in 1971 or 1972 can
receive a permit is demonstrably incorrect. At least two Isakson
applicants who have not been partners of gear licensees have
received scores of twenty points or higher by demonstrating
special or unavoidable circumstances under 20 AAC 05.630(a)(5) or
(b)(2).29
And even if this were not the case, the public has
received ample notice of the procedures controlling permit
applications. In addition to the general regulations promulgated
by the CFEC,30 we have provided specific, detailed guidance about
the treatment of applicants who did not hold a gear license in
1971 or 1972.31 We therefore hold that the CFEC did not violate
the Administrative Procedures Act by denying Brandals
application.
D. Brandals Due Process Claim
Brandals next argument is that his right to due process
was violated by the CFECs twenty-two-year delay in handling his
case. As Brandal correctly notes, the right to due process
extends to participants in administrative proceedings.32 Alaska
has adopted the three-part balancing test outlined in Mathews v.
Eldridge to determine whether administrative proceedings satisfy
due process.33 This test takes into account:
[f]irst, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probative value, if any, of additional or
substitute procedural safeguards; and
finally, the Governments interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.[34]
In Federal Deposit Insurance Corp. v. Mallen,35 the United States
Supreme Court outlined three similar factors to consider in cases
involving extended delay. These factors include the importance
of the private interest and the harm to this interest occasioned
by delay[,] the justification offered by the Government for delay
and its relation to the underlying governmental interest[,] and
the likelihood that the interim decision may have been mistaken.36
Because the Mathews and Mallen factors closely track each other,
we will examine both together.
1. Private interest
The first factor raises the question whether there can
be a deprivation of a property interest due to a deficiency in a
proceeding where the applicants claim is ultimately denied.
Although Brandal does not have a private interest37 in receiving a
permit to which he is not legally entitled, he clearly has an
interest in being able to earn a livelihood. Just as
importantly, all applicants including those whose permit
applications are ultimately denied have a procedural interest in
the prompt and fair adjudication of their claims. For this
reason, although the original denial in 1978 and the recommended
denial issued in 1982 both provided notice that Brandal could not
rely on the eventual issuance of a permit,38 Brandal did have a
procedural interest in having his claim resolved.
2. Risk of error created by the delay
This factor strongly favors the CFEC. If Brandal had
not received an interim permit, and if the final decision had
been to grant his application, he would have a strong argument
that the CFECs delay created a serious risk of an erroneous
deprivation39 of his property interest, as it would have deprived
him of twenty-two years of rightful access to the fishery. But
the CFEC obviated this problem by issuing him an interim permit.
The CFECs grant of an interim permit may have been erroneous
relative to the final decision, but the error resulted in a
windfall for Brandal.
Furthermore, Brandal has not identified any aspect of
the CFECs procedure that is likely to create the risk of an
inaccurate result. The CFECs glacial pace endangered the
timeliness of the decision, not the accuracy of the result.
Although Brandal raises substantive objections to the CFECs
decision, these objections arise from a dispute about the meaning
of the special circumstances provision, not a claim that the
CFECs factfinding process is fundamentally flawed.
3. Government interest and justification for the
delay
The third factor clearly favors Brandal. Although he
does not give a detailed account of the procedure that he would
substitute for the present method of adjudicating applications,
he does state that he would have experienced much less hardship
[h]ad CFEC promptly adjudicated and rejected his application. If
the additional or substitute procedural requirement40 suggested by
Brandal is simply that the CFEC process applications promptly,
the government has virtually no interest in avoiding this
requirement. Although we recognize that the fiscal and
administrative burdens41 of adjudicating cases may affect the
promptness of decisions, no conceivable burden could justify
sitting on a simple permit application for over two decades.
CFECs justification . . . for [the] delay and its
relation to the underlying government interest42 is profoundly
unpersuasive. The CFECs claim that [t]he time when Brandals
complete application record came before the Commission coincided
with a time when the Commission was unable to devote sufficient
time to its review might excuse a delay of weeks or months, but
not of decades. As the D.C. Circuit observed in the context of a
far more complex administrative proceeding, nine years should be
enough time for any agency to decide almost any issue.43 A permit
application should take a fraction of that time.
The traditional remedy for such a delay, however, has
generally been a court order compelling the agency
to reach a decision.44 At no point during the
twenty-two years after 1982 did Brandal seek an
order compelling the CFEC to reach a decision.
4. Whether delay without prejudice can be a
denial of due process
We have stated that delay can constitute a violation of
due process in the criminal context, if it results in actual
prejudice to the defendant,45 and in certain civil contexts, if
the delay causes the deprivation of a private interest.46 But we
have never held that delay alone, with no accompanying prejudice,
constitutes a violation of the right to due process.47
The facts of the present case do not justify such a
holding. The CFECs handling of this case was inexcusable, and
Brandal may experience significant harm, but the CFECs delay is
not the reason for Brandals difficulties. Contrary to Brandals
claim that [t]he delay caused him to become almost entirely
economically dependent on the fishery and lulled him into not
learning another occupation, Brandal had ample notice that the
CFEC was likely to reject his claim. In 1978 and 1982 hearing
officers found that he lacked sufficient points to qualify for a
permit. Brandal had no reason to assume that the cause of the
delay was that his case was deemed exceptionally close: courts
and administrative agencies often face exceptionally close cases,
but they almost never sit on them for decades on end. Brandal
elected not to learn another occupation in spite of having
received notice that he was unlikely to be awarded a permit.
Because the CFECs delay did not prejudice Brandal, we hold that
the delay did not constitute a violation of Brandals right to due
process.
E. Unreasonable Delay and Quasi-Estoppel
1. Unreasonable delay
As the CFEC points out, none of the cases cited by
Brandal supports the proposition that an administrative agencys
decision can be overturned solely because the agency was slow in
rendering its decision. Even if Brandals assertion that a
plaintiff can prevail on an unreasonable delay claim by show[ing]
unreasonable delay and prejudice were accurate, he would be
unable to make out a claim because he was not prejudiced by the
delay. Had the CFEC adjudicated his case promptly, Brandal would
not have received the windfall of being allowed to fish without
being entitled to a permit.
2. Quasi-estoppel
Brandals quasi-estoppel claim is also unpersuasive.
Quasi-estoppel precludes a party from taking a position
inconsistent with the one he [or she] has previously taken where
circumstances render assertion of the second position
unconscionable.48 But the CFEC has not changed its position. As
shown by the 1978 ruling, the 1982 recommended decision, and the
2004 final decision, the CFEC has consistently maintained that
Brandal does not qualify for a permit. Brandal has no
inconsistent earlier statement to rely on, and so he has not made
out a quasi-estoppel claim.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment
of the superior court.
_______________________________
1 See 20 Alaska Administrative Code (AAC) 05.600 (2005)
(establishing a priority classification system, with scores
ranging from zero to forty points, to reflect the degree of
hardship the applicant would suffer by exclusion from the
fishery); 20 AAC 05.640(a) (2005) (providing that permits are to
be issued to those who have scores of twenty or above).
2 See 20 AAC 05.630(b)(1).
3 Simpson v. State, Commercial Fisheries Entry Commn, 101
P.3d 605, 609 (Alaska 2004).
4 Leuthe v. State, Commercial Fisheries Entry Commn, 20
P.3d 547, 550 (Alaska 2001); see also Handley v. State, Dept of
Revenue, 838 P.2d 1231, 1233 (Alaska 1992).
5 Handley, 838 P.2d at 1233.
6 Crivello v. State, Commercial Fisheries Entry Commn, 59
P.3d 741, 744 (Alaska 2002).
7 Simpson, 101 P.3d at 609.
8 AS 16.43.010-.990 (1973).
9 Id.
10 See 20 AAC 05.600 (2005) (providing for a point system
based in part of the extent of past participation in the
fishery).
11 20 AAC 05.640(a).
12 550 P.2d 359, 365 (Alaska 1976) (striking down the
portion of the Limited Entry Act codified in AS 16.43.260(a));
see infra note 14.
13 Id. at 365.
14 20 AAC 05.630 (2005). Although Isakson changed the
date by which an applicant must have obtained a gear license, we
have held that the gear license requirement itself is
constitutional. See Commercial Fisheries Entry Commn v.
Apokedak, 606 P.2d 1255, 1263-64 (Alaska 1980) (holding that the
gear license requirement does not violate the federal Equal
Protection Clause because it is rationally related to the goal of
preventing unjust discrimination in the allocation of entry
permits).
15 598 P.2d 77 (Alaska 1979).
16 20 AAC 05.630(b)(2).
17 Templeton, 598 P.2d at 81.
18 693 P.2d 844 (Alaska 1985).
19 Id. at 850-51.
20 Id. at 853-55.
21 Rose v. Commercial Fisheries Entry Commn, 647 P.2d 154,
162 (Alaska 1982) (discussing the relationship between special
and unavoidable circumstances, and concluding that unavoidable
means both special and unavoidable).
22 See, e.g., Jones v. Commercial Fisheries Entry Commn,
649 P.2d 247, 251 (Alaska 1984) (requiring the CFEC to consider a
fishers claim of special circumstances where the fisher was
unable to fish during the relevant period because his boat had
been destroyed).
23 Kalmakoff, 693 P.2d at 852; see also id. at 855 n.20
(noting that crew [members], as a class, would have suffered less
hardship by being forbidden to fish in 1973 than would the class
of gear license holders).
24 Id. at 854.
25 Id.
26 Id. at 853.
27 550 P.2d at 364.
28 AS 44.62.190 (requiring that the public be given notice
of new regulations adopted by state agencies).
29 See Wadsworth, CFEC 75-465 (1990) (granting past
participation points for 1972 under the unavoidable circumstances
exception where the applicant had served in the military for part
of the year, and ultimately granting the Isakson applicant a
permit); Uttley, CFEC 75-807 (1984) (granting a permit to an
Isakson applicant on the ground that, had not circumstances
beyond [Uttleys] control thwarted [his] intent to participate as
a gear license holder in 1972, [his] earnings would have been
sufficient to establish the requisite 90% dependence on the
fishery). The CFEC considered unavoidable circumstances in
another Isakson case, but ultimately denied the applicants
request for a permit. See Byford, CFEC 75-610 (1986) (denying a
permit to an Isakson applicant who claimed an exception under
unavoidable and special circumstances).
30 See, e.g., 20 AAC 05.600; 20 AAC 05.640.
31 See, e.g., Kalmakoff, 693 P.2d 844; Templeton, 598 P.2d
77; Isakson, 550 P.2d 359.
32 State, Dept of Health & Soc. Servs. v. Valley Hosp.
Assn, Inc., 116 P.3d 580, 583 (Alaska 2005).
33 Valley Hosp. Assn, Inc., 116 P.3d at 583 (citing
Mathews v. Eldridge, 424 U.S. 319 (1976)); see also Fed. Deposit
Ins. Corp. v. Mallen, 486 U.S. 230, 242 (1988).
34 Valley Hosp. Assn, Inc., 116 P.3d at 583.
35 486 U.S. at 242.
36 Id.
37 Valley Hosp. Assn, Inc., 116 P.3d at 583; see also
Mallen, 486 U.S. at 242 (directing courts to consider the
importance of the private interest and the harm to this interest
occasioned by the delay).
38 Had CFEC officials led Brandal to believe that he was
going to be awarded a permit, Brandal could argue that an
interest was created by his reliance on these statements. It is
unclear, however, if such reliance would be sufficient to create
a property interest. Cf. State, Dept of Commerce & Econ. Dev.,
Div. of Ins. v. Schnell, 8 P.3d 351, 358 (Alaska 2000)
(considering, but ultimately rejecting, the argument of an
insurance agent that statements by Division of Insurance
officials implying that disciplinary action would not be taken
against him estopped the Division of Insurance from taking such
action).
39 Valley Hosp. Assn, Inc., 116 P.3d at 583. The
equivalent factor in Mallen considers the likelihood that the
interim decision [which would be controlling during the delay]
may have been mistaken. 486 U.S. at 242.
40 Mallen, 486 U.S. at 242; Valley Hosp. Assn, Inc., 116
P.3d at 583.
41 Valley Hosp. Assn, Inc., 116 P.3d at 583.
42 Mallen, 486 U.S. at 242.
43 Nader v. F.C.C., 520 F.2d 182, 206 (D.C. Cir. 1975)
(finding unreasonable delay where two issues were in their tenth
year of consideration and ordering the FCC to resolve the issues
promptly).
44 See Cutler v. Hayes, 818 F.2d 879, 895-96 n.137 (1987)
(providing a lengthy list of cases, including Nader v. F.C.C., in
which courts have intervened to compel an agency unreasonably
delaying to speed up its activities).
45 See, e.g., Millman v. State, 841 P.2d 190, 195 (Alaska
1992) (holding that [t]he due process clauses of the United
States and the Alaska Constitutions protect the accused against
unreasonable pre-accusation delay[,] . . . [b]ut to prevail on a
claim of pre-accusation delay, the accused must establish both
that the delay was unreasonable and that it actually prejudiced
the accuseds defense of the case).
46 See, e.g., Whitesides v. State, Dept of Pub. Safety,
Div. of Motor Vehicles, 20 P.3d 1130, 1134 n.4 (Alaska 2001)
(holding that an eight-month delay in a drivers license
revocation hearing was not a violation of due process, but noting
that it could have been if Whitesides had been deprived of his
license in the interim); see also United States v. $8,850 in
United States Currency, 461 U.S. 555, 564 (1983) (holding that a
delay in a civil forfeiture case where the claimant has been
deprived of the property at issue can constitute a due process
violation, and drawing an analogy between the right to due
process in this context and the right to a speedy trial).
47 In North Slope Borough v. Barraza, we stated in dicta
that a delay of four months between [a post-termination] decision
and the issuance of . . . findings was not so unreasonable as to
create an independent due process violation. 906 P.2d 1377, 1381
(Alaska 1995). But the former public employee alleging the due
process violation claimed to have been deprived of her property
interest in back pay for the full duration of the post-
termination proceedings. Barraza did not hold that a due process
violation can occur without any deprivation of life, liberty or
property.
48 Batey v. Batey, 933 P.2d 551, 554 (Alaska 1997). Cf.
Wassink v. Hawkins, 763 P.2d 971, 975 (Alaska 1988) (Estoppel may
be invoked as a defense against the government where four
elements are present: (1) the governmental body asserts a
position by conduct or words; (2) the person acts in reasonable
reliance thereon; (3) the person suffers resulting prejudice; and
(4) the estoppel serves the interest of justice so as to limit
public injury.).
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