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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

Brandal v. State, Commercial Fisheries Entry Commission (02/03/2006) sp-5982, 128 P3d 732

     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,


) Supreme Court No. S- 11770
Appellant, )
) Superior Court No.
v. ) 3DI-04-00065 CI
ENTRY COMMISSION, MARY ) [No. 5982 - February 3, 2006]
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.

          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.
     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.
     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
          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
          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
          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
     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
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
          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
     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.
          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

     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

     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

     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

     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

     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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