J.G. Sablan Rock Quarry, Inc. v. DPL

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS J.G. SABLAN ROCK QUARRY, INC., Plaintiff-Appellant, v. DEPARTMENT OF PUBLIC LANDS, Defendant-Appellee. SUPREME COURT NO. 2009-SCC-0008-CIV SUPERIOR COURT NO. 06-0424 Cite as: 2012 MP 2 Decided March 30, 2012 Michael W. Dotts and Vincent DLG Torres, Saipan, MP, for Plaintiff-Appellant. Gilbert Birnbrich, Office of the Attorney General, Saipan, MP, for Defendant-Appellee. BEFORE: ALEXANDRO C. CASTRO, Acting Chief Justice; JOHN A. MANGLONA, Associate Justice; HERBERT D. SOLL, Justice Pro Tem. CASTRO, J.: ¶1 Plaintiff-Appellant J.G. Sablan Rock Quarry, Inc. (“Sablan”), appeals the trial court’s decision affirming four of the seven grounds for Defendant-Appellee Department of Public Lands’ (“DPL”) termination of Sablan’s permit to mine pozzolan and basalt on the island of Pagan. On appeal, Sablan argues that the trial court erred in finding that: (1) DPL provided Sablan with adequate due process prior to terminating Sablan’s permit; (2) the statute of limitations did not bar DPL from revoking Sablan’s permit; (3) DPL was not estopped from terminating Sablan’s permit; and (4) DPL’s revocation of Sablan’s permit was not arbitrary or capricious agency action. ¶2 For the reasons stated herein, we reverse the trial court’s determination that DPL provided Sablan with adequate due process regarding Sablan’s alleged failure to generate revenue. In all other  respects, the trial court’s decision is affirmed and this matter is remanded for entry of judgment consistent with this opinion. I ¶3 In 1992, Sablan and Pacific Venture, Ltd. (“Pacific Venture”), received non-exclusive one-year permits to mine pozzolan and basalt on Pagan from the Marianas Public Land Corporation (“MPLC”).1 Each mining permit allowed the permittee to “use that certain real property, situated at Pagan island . . . as shown and delineated on the attached Appendix ‘A’.”2 J.G. Sablan Rock Quarry, Inc. v. Dep’t of Pub. Lands, No. 06-0424 (NMI Super. Ct. June 12, 2007) (Statement of Material Facts Not in Dispute at Ex. 3) (hereafter, “Statement of Material Facts”). We note that neither Sablan nor DPL has been able to locate or produce the appendix (or appendices) referenced in the permits. ¶4 In August 1993, MPLC issued a non-exclusive five-year mining permit to Sablan. This permit allowed Sablan to “use that certain real properties [sic], situated at Pagan island . . . as shown and delineated on the attached Appendix ‘A’.” Appendix to the Opening Br. (“Appendix”) at 77. Like the 1992 permits, the parties have not located or produced a copy of the Appendix “A” that is referenced in the 1993 permit. ¶5 In 1995, the Division of Public Lands issued Sablan a permit granting it the non-exclusive right to use certain lands on the island of Pagan “for the operation of pozzolan extraction and related activities and basalt quarrying operation” for a term of twenty years. Appendix at 91. This permit expressly 1 A brief history of the evolution of public land management agencies in the Commonwealth is useful to avoid confusion. The Marianas Public Land Corporation was a semi-autonomous agency created pursuant to Article XI, Section 4 of the Commonwealth Constitution and charged with the administration of public lands within the Commonwealth. Pursuant to Article XI, Section 4(f) of the Commonwealth Constitution, in 1994 Executive Order 94-3 dissolved MPLC and transferred its functions to the Division of Public Lands within the Department of Land and Natural Resources. In 1997, the Commonwealth Legislature passed Public Law (“PL”) 10-57, which established a Board of Public Lands as part of the Division of Public Lands within the Department of Land and Natural Resources. In 2000, PL 12-33 separated public land management from the control of the Department of Land and Natural Resources by establishing an independent Board of Public Lands with control over an Office of Public Lands. In 2001, PL 12-71 abolished the Board of Public Lands and Division of Public Lands and established the Marianas Public Lands Authority (“MPLA”) as an independent public corporation within the executive branch. In 2006, PL 15-2 abolished MPLA and established DPL as an independent department within the executive branch. 2 These 1992 permits (as well as numerous important background documents) are not contained in Sablan’s “Appendix to the Opening Brief” or in DPL’s “Appendix to the Opposition Brief.” As part of the trial court record, Pacific Venture’s permit is included as part of the record on appeal and we may rely on it. NMI Sup. Ct. R 10(a)(1) (record on appeal includes “original papers and exhibits filed in the Superior Court”); NMI Sup. Ct. R. 30(a)(2) (“Parts of the record may be relied on by the court or the parties even though not included in the [Appendix to the Briefs].”). However, we admonish counsel for both parties for failing to include all relevant parts of the record in the Appendix to the Briefs and caution them when filing future briefs in this Court to take greater care. We also note that, pursuant to Commonwealth Supreme Court Rule 30, the Appendix to the Briefs should be a single appendix prepared and filed by the appellant after conferring with the appellee. NMI Sup. Ct. R. 30(b)(1). 1  revoked Sablan’s 1993 permit.3 Id. In 1996, the parties amended two sections of the 1995 permit (“Amended Permit”). The Amended Permit changed Article 3 of the 1995 permit to remove language that originally allowed the government to terminate the permit “if it [found] the permit not to be in the best interest of the people of the Commonwealth.” Appendix at 91. However, the Amended Permit retained other termination language, which stated that the “permit shall terminate automatically should [Sablan] fail to generate and/or report any revenue to the Government from its activities on the premises for two consecutive years.” Id. at 105. In addition to changing Article 3, the Amended Permit also amended Article 9. Article 9 of the Amended Permit states that DPL may terminate the permit in response to Sablan’s “violation of any of the terms or conditions” of the permit after complying with the following procedure: A. The Government shall first give sixty (60) days notice to Permittee that it is declaring the permit void because of violations of terms or conditions, which notice shall specify the terms or conditions violated. B. Permittee may request a hearing on the alleged violations within 60 days of receipt of the notice. Appendix at 105. ¶6 In November 2000, a Land Enforcement Officer prepared a memorandum for the Director of the Division of Public Lands regarding an inspection of Sablan’s mining operations on Pagan. The memorandum stated that there was no evidence of the active use of the public land by Sablan and that Sablan “has constructed structures on public land that is outside the permitted premises” that were “in dire need of repairs.” Statement of Material Facts at Ex. 15. Additionally, the memorandum listed other alleged violations of the Amended Permit, including “the nonpayment of an outstanding balance of $330,837.35 . . . .” Id. ¶7 In October 2001, the Public Lands Administrator (“Administrator”) provided an oral report to the Board. As reflected in the minutes of that meeting, the Administrator reported that his audit of Sablan discovered that Sablan owed the Board of Public Lands $3.726 million under the Amended Permit and other permits. The Administrator also recommended termination of the Amended Permit. The Board of Public Lands ultimately deferred action on the matter. ¶8 In December 2002, the Comptroller of the newly-created MPLA submitted a memorandum to the Commissioner of MPLA regarding Sablan and the Amended Permit. The Comptroller drafted the memorandum in response to Sablan’s requests for a waiver of royalties due under previous permits (along with corresponding interest amounts) as well as a retroactive waiver of the $20,000.00 annual fee 3 This permit once again allowed Sablan to “use those certain real properties, situated at Pagan Island . . . as shown and delineated on the attached Appendix ‘A’.” Id. at 90-91. However, this appendix has never been produced. 2  for the Amended Permit.4 The Comptroller recommended denial of Sablan’s waiver requests and “further recommend[ed] terminating the permit due to non-payment . . . .” Statement of Material Facts at Ex. 21. ¶9 Thereafter, in February 2004 the Commissioner of MPLA sent a letter (“Notice of Violation”) to Sablan detailing numerous alleged violations of the Amended Permit. In addition to other alleged violations not relevant to this appeal, the Notice of Violation stated that Sablan was in violation of the Amended Permit by: (1) failing to pay required rental fees and interest between September 1995 and January 2004, totaling $125,433.27; (2) failing to pay other rental and royalty obligations totaling $358,204.29; (3) erecting a barracks structure outside of the permitted premises; and (4) failing to submit a development plan to MPLA for Sablan’s proposed mining activities. Statement of Material Facts at Ex. 22. The Notice of Violation conspicuously stated that “[Sablan] is hereby put on notice . . . that [Sablan] has violated its Permit.” Id. The Notice of Violation provided Sablan “sixty (60) days from receipt of this notice to cure the above-noted violations and defaults” and informed Sablan that it could request in writing a hearing within the sixty-day period. Id. ¶ 10 For the next several months, Sablan attempted to negotiate a settlement of the violations with MPLA through letters and in-person meetings. During this period, Sablan provided MPLA with a check for $125,433.27 in order to bring its rental payments up to date. Despite this payment, the Acting Commissioner of MPLA, in a memorandum to the MPLA Board dated August 10, 2004, recommended termination of the Amended Permit based on “years of inactivity and non-payment of fees.” Statement of Material Facts at Ex. 24. Although Sablan submitted a number of proposed settlement agreements during this period in an attempt to convince MPLA to withdraw the Notice of Violation, MPLA ultimately did not accept any of the agreements. ¶ 11 In a letter dated April 25, 2005, Sablan requested that MPLA provide him with a “short letter stating that [Sablan’s] Mining Permit in Pagan is still valid, and that the lease rental payment ($20,000 a year) is up to date.” Appendix at 114. Sablan’s understanding “that there are several other issues [MPLA] still needs to decide on” and that “Sablan is not pressing on any time soon” was made clear. Id. The letter stated the reason for the request was to provide the Commonwealth Development Authority information on a “pending personal matter” of John G. Sablan in response to a request from that agency. Id. In response to Sablan’s request in the April 2005 letter, the Commissioner of MPLA made the following three statements in writing in April 2005 regarding the status of the Amended Permit: 1. Your Pagan Mining Permit has not been terminated; 2. You have made payments for the Permit fee up to December 31, 2005; and 3. You have been making regular, good faith payments. 4 Article 4 of the Amended Permit requires Sablan to pay an annual fee of $20,000.00 as well as royalties for each cubic yard of pozzolan and basalt extracted. Appendix at 92. 3  Id. at 115. The MPLA Board of Directors did not terminate the Amended Permit prior to the abolition of the agency in February 2006. ¶ 12 In May 2006, John S. DelRosario, Secretary of the newly-created DPL, issued a letter (“Notice of Termination”) to Sablan that the Amended Permit was “terminated and void.” Appendix at 170. In addition to other alleged violations not relevant here, the Notice of Termination included the following grounds for termination: (1) failure to generate revenue; (2) failure to provide DPL with a development plan for Sablan’s proposed mining activities; (3) “conducting, or seeking to conduct, mining and related activities in areas of Pagan not covered by the [Amended Permit]”; and (4) failure to pay royalties owed under Sablan’s 1993 mining permit totaling $345,914.17. Id. at 170-71. The Notice of Termination informed Sablan that a hearing could be requested on these alleged violations within sixty days of the notice. Id. at 172. ¶ 13 Sablan timely requested a hearing and DPL scheduled a post-deprivation reconsideration hearing before Secretary DelRosario for July 14, 2006. Upon discovering that Secretary DelRosario would preside at the hearing, Sablan filed a motion requesting that the Secretary recuse himself due to his prior involvement with the matter. At the hearing, the Secretary denied Sablan’s request for recusal. After denying Sablan’s recusal request, the Secretary allowed Sablan to present witness testimony. John G. Sablan and two of the company’s attorneys provided testimony regarding the history of the permits and arguments which were intended to show Sablan’s compliance with the Amended Permit. DPL did not present witnesses or evidence at the hearing and Sablan, thus, was not able to examine or cross-examine any agency witnesses. At the conclusion of the hearing, the Secretary took the matter under advisement. In August 2006, the Secretary issued his decision, which upheld all grounds for DPL’s termination of the Amended Permit. ¶ 14 Sablan then filed a complaint in the Superior Court challenging DPL’s termination of the Amended Permit. Sablan alleged that DPL failed to provide Sablan with adequate due process prior to termination of the Amended Permit. Sablan also challenged the substantive merits of DPL’s termination decision. DPL filed a motion for partial summary judgment regarding the due process portion of Sablan’s complaint. The trial court granted this motion, holding that the terms of Article 9 of the Amended Permit dictated the process owed to Sablan and that DPL’s Notice of Termination and subsequent reconsideration hearing complied with DPL’s requirements under Article 9. The trial court also held that section 9111(b) of the Commonwealth Administrative Procedure Act, 1 CMC §§ 9101- 9115, controlled DPL’s termination decision and that DPL’s actions complied with that section. ¶ 15 After disposing of Sablan’s due process claims, the trial court set a briefing schedule and limited briefing to: (1) whether Sablan breached the Amended Permit; and (2) whether estoppel barred DPL from terminating Sablan’s permit due to the actions of its predecessor agencies. The parties briefed 4  these issues and waived oral argument. The trial court held that estoppel did not bar DPL from terminating the Amended Permit. The trial court also upheld DPL’s termination on four of the seven grounds identified in the Notice of Termination: (1) failure to generate revenue; (2) failure to provide DPL with a development plan for Sablan’s proposed mining activities; (3) conducting activities outside the permitted mining area; and (4) failure to pay royalties owed under Sablan’s 1993 mining permit totaling $345,914.17.5 Sablan timely appealed to this Court. II ¶ 16 This Court has jurisdiction over this appeal pursuant to 1 CMC § 9113, which grants “aggrieved parties” standing to appeal Superior Court decisions reviewing administrative matters. N. Marianas Coll. v. Civil Serv. Comm'n, 2006 MP 4 ¶ 5. III A. Procedural Due Process ¶ 17 Sablan argues that DPL did not provide him with adequate due process prior to termination of the Amended Permit. Specifically, Sablan argues that he was entitled to: (1) notice of violation of the Amended Permit; and (2) a full adjudicatory hearing before termination of the Amended Permit (i.e. a pre-deprivation hearing). To determine whether Sablan received adequate due process, we must consider Sablan’s rights under three distinct sources of due process: (1) constitutional procedural due process pursuant to Article I, Section 5 of the Commonwealth Constitution and Section 1 of the Fourteenth Amendment to the United States Constitution (applicable in the Commonwealth pursuant to section 501 of the Covenant)6; (2) process pursuant to the Commonwealth Administrative Procedure Act, 1 CMC §§ 9101-9115 (“Commonwealth APA”); and (3) process pursuant to the procedures set forth in the Amended Permit. The trial court held that the notice and hearing DPL afforded Sablan did not violate any of Sablan’s due process rights. Our review of legal issues in a summary judgment order is de novo. Estate of Muna v. Commonwealth, 2007 MP 16 ¶ 6. Likewise, our review of a trial court’s determination that procedures satisfied constitutional and statutory due process is de novo. In re Hafadai Beach Hotel Extension, 4 NMI 37, 41 (1993). 5 DPL did not appeal the trial court’s decision as to the other three grounds for termination. 6 Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. 48 U.S.C. § 1801 note (“the following provisions of the Constitution of the United States will be applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several States: . . . Amendment 14”). Article I, Section 5 of the Commonwealth Constitution “is taken directly from section 1 of the Fourteenth Amendment to the United States Constitution . . . .” Analysis of the Constitution of the Commonwealth of the Northern Mariana Islands 20 (1976); see also id. (“No substantive change from section 1 of the Fourteenth Amendment or the interpretation of that section by the United States Supreme Court is intended.”). 5  1. Constitutional Due Process ¶ 18 Sablan first argues that DPL’s termination decision violated his constitutional right to due process. “[A] fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” In re Hafadai Beach Hotel Extension, 4 NMI at 45 (internal quotation marks and citation omitted). To determine if Sablan’s constitutional right to due process has been violated, we must “first determine if a due process interest is implicated and, second, determine what procedures protect that interest sufficiently to satisfy due process.” Id. at 44-45. DPL concedes that the Amended Permit provided Sablan with a protected interest to which due process attaches. The first element of constitutional due process is therefore satisfied, and we now consider whether procedures necessary to protect Sablan’s due process interest in the Amended Permit were provided. ¶ 19 To determine what procedures satisfy due process, a court must consider the following factors: First, 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 probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976); In re Hafadai Beach Hotel Extension, 4 NMI at 45 n.29 (listing the Mathews factors). Analysis of these factors is a necessarily fact-specific process and it is useful to seek guidance from other United States jurisdictions. 7 CMC § 3401; see Santos v. Santos, 2000 MP 9 ¶ 18 (seeking guidance from other jurisdictions where no Commonwealth case on point). The Ninth Circuit Court of Appeals recently decided a case with similar facts in Buckingham v. Secretary of the United States Department of Agriculture, 603 F.3d 1073 (9th Cir. 2010). ¶ 20 In Buckingham, a rancher received a permit from the United States Forest Service (“Forest Service”) to graze livestock within a national forest in 1983, which he renewed in 1989 and again in 1999. Id. at 1077-78. Between 1998 and 2004, the rancher received “at least seven notices” detailing non-compliance with various terms of his grazing permit. Id. at 1078. Due to these violations, in 2004 the Forest Service partially canceled the rancher’s permit and issued a revised permit allowing the rancher to use a smaller amount of land. Id. Thereafter, the Forest Service issued additional notices of non-compliance between July and September of 2005 and engaged in discussions with the rancher before eventually canceling the permit in its entirety in November 2005. Id. at 1078-79. The rancher did not receive a pre-deprivation hearing but, per Forest Service regulations, he did receive two levels of administrative review of the cancellation decision. Id. at 1083. The rancher was allowed to present oral argument at one level of review (at a post-deprivation hearing) and written argument at both levels. Id. Ultimately, the Forest Service affirmed its cancellation decision. The rancher then challenged the 6  cancellation in the United States District Court, claiming violations of his due process rights under the Fifth Amendment of the United States Constitution. Id. at 1079. ¶ 21 On appeal, the rancher argued that he was entitled to a full evidentiary hearing prior to cancellation of his grazing permit. Id. at 1082. The Ninth Circuit Court of Appeals rejected this argument and affirmed the district court’s decision. Id. at 1084. The court found that pre-deprivation notice and an opportunity to be heard is not always required and that a combination of pre- and post- deprivation procedures can satisfy the Fifth Amendment depending on the circumstances of the relevant government action. Id. at 1082; see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547-48 (1985) (“We conclude that all the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures . . . .”); Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 984 (9th Cir. 1998) (stating that there is no “hard and fast” rule requiring a pre-deprivation hearing). Additionally, the court found that due process does not mandate the use of formal, adversarial, evidentiary hearings in every case. Buckingham, 603 F.3d at 1082; Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 16 n.17 (1978); United States v. Clifford Matley Family Trust, 354 F.3d 1154, 1162 (9th Cir. 2004); Hickey v. Morris, 722 F.2d 543, 549 (9th Cir. 1984). Furthermore, the court recognized that the opportunity to cross-examine witnesses is not required in all cases. See Buckingham, 603 F.3d at 1083 (rejecting petitioner’s argument that additional procedures such as an evidentiary hearing and cross-examination were necessary). ¶ 22 After discussing the general requirements of procedural due process, the Buckingham court applied the three factor test from Mathews to the facts of the grazing permit cancellation. Buckingham, 603 F.3d at 1082-84. The court noted that there was a strong private interest involved since the rancher’s livelihood was at least partially dependent on his right to graze his livestock in the National Forest. Id. at 1082. Balanced against this private interest was the Forest Service’s strong interest in protecting national forests from environmental degradation caused by over-grazing. Id. Finally, the court held that the risk of erroneous deprivation was low and that existing procedures were fair to the rancher since the Forest Service: (1) provided notice and an opportunity to cure to the rancher on several occasions; (2) allowed the rancher to contact Forest Service staff and discuss the violations; and (3) afforded the rancher two levels of administrative review with oral argument at one level and written argument at both levels. Id. at 1083-84. Based on this analysis, the court held that “we cannot conclude that the Forest Service deprived [the rancher] of the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. at 1084. ¶ 23 Applying the three factor Mathews test to the case at bar, Sablan’s private interest in retaining the Amended Permit is similar to that of the rancher in Buckingham; the inability to mine on Pagan adversely affects Sablan’s ability to generate revenue. However, DPL’s interest in compliance with the 7  terms of the Amended Permit is also strong. DPL has a strong interest in generating revenue through the collection of fees and royalties for the extraction of materials from lands that it owns as well as an interest in not incurring the costs associated with providing greater procedures prior to the termination of mining permits. The third factor – the risk of erroneous deprivation – involves an analysis of the fairness of the procedures provided to Sablan and warrants greater discussion. Buckingham, 603 F.3d at 1083- 84. This analysis looks to both the adequacy of the notice provided to Sablan as well as the adequacy of the hearing DPL provided. ¶ 24 As to the adequacy of the notice provided, Sablan alleges that DPL violated his due process rights by failing to provide notice prior to termination of the Amended Permit. DPL counters that its 2006 Notice of Termination provided sufficient notice to satisfy due process. Generally, the government must provide notice to an individual prior to deprivation of a right protected by constitutional due process. Brewster, 149 F.3d at 984.7 Given the length of the term of the Amended Permit as well as the importance to Sablan of retaining the permit, we follow this general rule and hold that pre-deprivation notice was required in this case prior to termination of the Amended Permit. Therefore, DPL’s reliance on this Notice of Termination is misplaced since it did not provide pre-deprivation notice. ¶ 25 While the 2006 Notice of Termination did not provide the necessary pre-deprivation notice to Sablan, MPLA issued the 2004 Notice of Violation more than two years before DPL terminated the Amended Permit.8 The Notice of Violation provided notice of, among other things, three of the four violations that form the basis of DPL’s termination decision: (1) failing to pay rental and royalty obligations totaling $358,204.29; (2) erecting a barracks structure outside of the permitted premises; and (3) failing to submit a development plan. Like the rancher in Buckingham, Sablan received notice of these grounds for termination long before DPL issued its Notice of Termination. We view such an amount of notice as clearly adequate for purposes of procedural due process. ¶ 26 Unlike the other three grounds for termination currently on appeal, the Notice of Violation did not mention failure to generate revenue as one of the itemized violations.9 Since it was not included in 7 In rare cases “when countervailing interests require it,” post-deprivation notice may be sufficient. Brewster, 149 F.3d at 984. DPL does not argue, and we cannot discern, any such countervailing interests in this case to excuse DPL from providing notice to Sablan prior to termination of the Amended Permit. 8 The court notes that the parties failed to include the Notice of Violation in the Appendix to the Briefs, which forced the Court to review the Clerk’s Record on Appeal to locate the document. As courts in other jurisdictions have recognized, it is not our duty to scour the record for relevant evidence and counsel would be wise to make sure all relevant evidence is included in the Appendix to the Briefs in future cases before this Court. See Del Real v. City of Riverside, 95 Cal. App. 4th 761, 768 (Cal. Ct. App. 2002) (“The appellate court is not required to search the record on its own seeking error.”). 9 The only reference to the revenue-generating requirement of the permit is a statement that “MPLA also reserves its right to terminate the [Amended] Permit, pursuant to Article 3 . . . .” This vague statement was not sufficient to put Sablan on notice that its failure to generate revenue was a ground for revocation. 8  the Notice of Violation, Sablan received no notice of the alleged violations based on failure to generate revenue. Therefore, while Sablan received adequate notice of the other three grounds for termination, we hold that DPL violated Sablan’s due process rights by failing to provide notice related to the revenue issue prior to termination.10 ¶ 27 In addition to the adequacy of the notice provided, in order to determine the risk of erroneous deprivation we must assess the extent and fairness of the procedures provided to Sablan. After receiving the Notice of Violation in 2004, Sablan and his counsel had numerous interactions with DPL’s predecessor agencies both in person and through correspondence. During this time, Sablan had ample opportunities to dispute the allegation or to cure its violations of the Amended Permit. See e.g., Appendix at 110 (June 2004 letter from counsel for Sablan to MPLA discussing meeting between the parties and offering proposed settlement agreement); id. at 114 (June 2005 letter discussing letter received by counsel for MPLA and requesting information from MPLA); id. at 129 (December 2005 letter from counsel for Sablan requesting meeting with the MPLA board). Despite these opportunities, DPL decided that Sablan was still in non-compliance with various terms of the Amended Permit and issued its Notice of Termination. The Notice of Termination informed Sablan of his right to request a hearing regarding the termination decision and Sablan availed itself of that right. In addition to allowing for submission of written arguments and evidence, DPL provided Sablan with the opportunity to present witnesses at the hearing before Secretary DelRosario. Moreover, contrary to Sablan’s assertion, Secretary DelRosario was a neutral hearing officer since the original Notice of Violation was issued by Henry Hofschneider, who was the Commissioner of MPLA when the Notice of Violation issued.11 After the hearing, Secretary DelRosario issued a detailed decision explaining the reasons for the termination of the Amended Permit. While Sablan contends that additional process (i.e., a formal adjudicatory hearing) 10 We note that Article 3 of the Amended Permit purports to allow for the automatic termination of the permit in the event that Sablan fails to “generate and/or report any revenue to the Government from its activities on the premises for two consecutive years.” Appendix at 105. However, as DPL failed to argue that Article 3 obviated the necessity to provide notice of violation based on this ground to Sablan prior to termination, such argument is waived. I.G.I. Gen. Contractor & Dev., Inc. v. Pub. Sch. Sys., 1999 MP 12 ¶ 16 (“[W]here a party does not discuss issues in its brief, they are treated as waived.”) (citation omitted). Additionally, we note, without deciding the matter, that the practice of conditioning a government entitlement on the sacrifice of due process protections – colloquially known as the “bitter with the sweet” approach – has been found unconstitutional by the United States Supreme Court. See Loudermill, 470 U.S. at 540-41 (noting that “the Court has clearly rejected” the bitter with the sweet approach). 11 Because Commissioner Hofschneider issued the Notice of Violation that formed the basis for the termination of the Amended Permit, Secretary DelRosario was a neutral hearing officer despite issuing the Notice of Termination. However, absent the Notice of Violation, serious questions would arise as to the impartiality of a hearing officer who reviews a determination that he or she made in the first instance. See Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (“[P]rior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decision maker. He should not, however, have participated in making the determination under review.”). 9  would have yielded a better outcome because it would have allowed him to demonstrate compliance with the Amended Permit by refuting factual issues raised by DPL, Sablan “has failed to persuasively explain why [he] was unable to resolve those factual issues through the ample process [he] was given.” Buckingham, 603 F.3d at 1083. In sum, although the hearing did not occur prior to termination of the Amended Permit, the procedures followed by DPL in terminating the Amended Permit carry with them a low risk of erroneous deprivation because of the opportunities Sablan had to show compliance with the Amended Permit (with the exception of the revenue issue). ¶ 28 In light of the foregoing, we conclude that DPL’s actions in terminating the Amended Permit comport with constitutional procedural due process requirements with regard to all grounds for termination except for the ground related to revenue generation. We turn next to whether DPL’s termination procedures satisfy the requirements of the Commonwealth APA. 2. Due Process Under the Commonwealth APA ¶ 29 The Commonwealth APA describes the procedures that agencies must follow in the absence of agency-specific administrative regulations. Since DPL does not have agency-specific administrative regulations governing the termination of this permit, the Commonwealth APA governs. Sablan claims that the termination of the Amended Permit constituted an “adjudication in which a sanction may be imposed” within the meaning of 1 CMC § 9108(a)12 and that, as such, DPL was required to provide Sablan a full adjudicatory hearing following the procedural requirements of 1 CMC §§ 9109 and 9110. Sections 9109 and 9110 contain the procedures that must be followed during formal adjudicatory hearings. These procedures include, among other things, the right to: (1) use of the relevant agency’s subpoena power to compel attendance of individuals at hearings; (2) an impartial agency official or hearing officer; (3) presentation and cross-examination of witnesses; and (4) presentation of documentary evidence. 1 CMC § 9109(d), (e), (i). ¶ 30 Although the foregoing procedures are generally required in adjudications where a sanction may be imposed, a different set of procedures must be followed when licenses are at issue. 1 CMC § 9108(a) (section does not apply “in an agency proceeding respecting the grant or renewal of a license”). This different standard is located in 1 CMC § 9111 (“section 9111”), the section of the Commonwealth APA containing special provisions applicable to licensing. Section 9111(b) states that: 12 1 CMC § 9108(a) states that: This section applies in every adjudication in which a sanction may be imposed, except in an agency proceeding respecting the grant or renewal of a license, unless an agency proceeding therefor is required by law to be preceded by notice and opportunity to be heard. In an adjudication under this section, all parties shall be afforded an opportunity for a hearing after reasonable notice. 10  [N]o revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings13, the agency gave written notice to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for retention of the license. Thus, prior to the revocation or termination of a license, an agency must provide: (1) notice; and (2) an opportunity to show compliance. Section 9111(b) does not explicitly state that a hearing of any kind is required, much less the full adjudicatory hearing desired by S