*1
C.J., WUEST, J.,
MILLER,
“knowingly”
SDCL
word
sence
HERTZ,
acting
Judge,
as a
Circuit Court
ele-
22-42-10, knowledge is an essential
Justice, concur.
Supreme Court
hold that
Because we
offense.
ment of the
knowledge, we
requires
22-42-10
SDCL
HENDERSON, J.,
in result.
concurs
SDCL
question
not reach
need
AMUNDSON, J.,
not
been
process if it did
violate due
22-42-10 would
at the
this
member of
court
time
knowledge.
require
not
considered,
participate.
was
case
did
against Stone
indictment
HENDERSON,
(concurring in re-
Justice
place
she
she knew
allege
sult).
being resorted to for
maintained was
Although
agree
I
this case should be
drugs. Although
using illegal
purpose
reversed,
disagree
I
with footnote of this
not contain all
does
indictment which
an
interpret
opinion;
simply
I
do not
the offense
elements
the essential
majority.
“For the
22-42-10 as does
if
defective,
is cured
“the defect
charged is
using
substances” modi-
purpose of
such
proper
stat
sets forth
the information
Thus,
previous
the word
fies the
words.
all the
ute,
set forth
jury instructions
analysis,
“purpose” supplies, by reasonable
offense, and the
elements
essential
guilty knowledge. To fac-
element of
at
essential elements
proves all the
State
legislative word
ilely dismiss that
Swallow, 350 N.W.2d
v.
trial.” State
injury
meaning,
true
is to do
statute for its
(S.D.1984)
v. Lackowit
(citing State
legislative intent.
zer,
State
314 N.W.2d
Furthermore,
majority opinion fails
(S.D.1980)).
Larson,
Barr,
eighteen years
case
after
to cite a
correctly set forth
indictment
Here the
controlling, namely State v.
which case is
allegedly
as the statute
22-42-10
Huber,
In Hu-
of the offense which
trial. Barr, also expressed in we
Although not knowledge upon insistence NO. note that In the Matter of APPLICATION in this TIME. essential element EXTEND wrongdoing as an 5189-3 TO charge increases the State’s burden felony No. 17097. defendant’s burden. and lessens Dakota. Supreme Court of South Therefore, cannot claim defendant prejudice. Argued 1991. Jan. assuming correct these factors and
Given 1991. Decided March instructions, the omission jury April Rehearing Denied knowledge from the indictment element Accordingly, reverse not fatal. consistent proceedings remand opinion. this does, it should opinion that it holds Jury cause Instruction 3-11-7 S.D.Crim. Pattern knowledge. knowledge for of- instruction Instructions that a no mention be clear makes knowledge optional, as an each list and 3-11-9 is not 3-11-8 optional under SDCL 22-42-10 fenses element, depending on whether State required. Be- to SDCL 22-42-10. is held to Barr *2 Jr., Gen., Deering, Atty.
Harold H. Asst. Falls, Tellinghuisen, Atty. Roger A. Sioux brief, rented the fall of Gen., Pierre, plaintiff on the Foster, Richard their land to Curtis and Rights. Division of Water appellee The Fosters present tenants on the land. Britton, Smeins, appellant. Danny R. irrigation completing checked into Schütz, & Ab- King, Siegel, Barnett Rory Fryers. and discussed it with the project *3 erdeen, Fryer. appellee, Isabel project put finish were on Plans to
hold, however, Mr. com- Johnson against Fryers on menced a lawsuit WUEST, Justice. 24, $100,000 1983, seeking in August over judgment appeals the Mr. Gerald Person damages improvements for lost made dur- court, affirming the decision of the circuit ing lease. the oral Management Board to extend of the Water lawsuit, At the time Mr. Johnson filed his irrigation of an the time for construction Fryer early eighties in and Mr. was his 4780-3. Water Permit No. under works suffer, had, and continued to serious health part. in and reverse in affirm We ultimately in problems which resulted 1981, 8, ap- Walter W. Johnson On June memory impairment and manent mental appropriate water for plied Fryer hospitalized Mr. was with con- loss. in irrigation farmland located Mar- psycho- gestive heart failure and suffered County, Dakota. The farmland shall South logical falling-out a result of the stress as Fryer. by owned Vincent Isabel was in Fryer Mr. Mrs. was her Johnson. long-time a tenant on the Mr. Johnson was mid-seventies. crop- oral Fryer to an farmland in This second lawsuit was settled June personal a close friend share lease and was 1988, Foster of 1987. In March Curtis ap- Fryers. application was of the Rights Division con- contacted the Water Management by the Water Board proved cerning completion irrigation project of the 29,1981, (Board) Permit July and Water on 19, 1988, Fryer on March Mrs. made priority with a date No. 4780-3 was issued Permit No. application to reinstate Water permit, Pursuant of June 1981. application subsequently 4780-3. This the water construction time application to an to extend the revised completed on or use was to be beneficial completion of the construction works 29, 1986, and the water was to July before 4780-3, formally Permit No. and was under July use on or before put to beneficial August filed 1988. 29, 1990. opposi- Person intervened Mr. Gerald irrigation water A dam from which the of time for construc- tion to the extension appropriated was constructed was to be irrigator tion. Mr. Person is a downstream spring in the of 1982. and filled with water permits, one with who has two water by Teiger The dam was built Construction 23, 1983, February priority date of gravel Fryers’ from the in return for Co. priority as of October another with $32,000. Mr. approximately land worth matter Mr. Person’s interest 1984. assisted Johnson fact that Mrs. wa- stems from the dam. original priority date permit retains its ter dispute arose between “extended,” (June 8, 1981) loses if it is but Fryers. dispute cul- and the Johnson if it must be reinstated.1 priority its date commencing an evic- in the minated “exigent cir- April The Board determined that against Mr. tion action Johnson under SDCL cumstances” existed judgment A of eviction was entered 1983. construction to extended the time for July on 1983. Mrs. against Mr. Johnson appealed to cir- Mr. Person No. Water Permit transferred court, the Board’s deci- name, alone, which affirmed August on cuit 4780-3 into her court and appeals to this sion. Mr. Person application permit shall be the date the application to rein- state a date for the 1. "The holding, chapter 46-2A and not be issues.2 Under our allowed raises seven only: the detriment of the of others need address permits valid jurisdiction lacks I. Whether the Board the use of the water. to extend the con- to amend period pursuant to SDCL 46- struction And SDCL 46-5-26 application filed after the 5-26 permit may A be amended extend- expiration permit’s ing completion the time for the of con- period; struction, or for to beneficial the 1983 amendment use, time, II. Whether for a reasonable on SDCL 46-5-26 constitutes an unlawful delays physical engi- account of due delegation legislative authority; neering difficulties which could not have *4 reasonably anticipated, oper- been III. Whether the Board’s conclusion of beyond power ation of law of the “exigent that circumstances” ex- law avoid, applicant to or due to other exi- supported by is the record. isted gent by circumstances identified the wa- management ter board. I. undisputed It is that the construction pertinent forth in full We set several Fryers’ irrigation project works of the background statutes in order to establish a completed years were not within five or pro- for our discussion. SDCL 46-2A-8 that Mrs. for an exten- vides: period of the sion construction to the Any necessary put construction to expiration original five-year of the con- complet- water to beneficial use shall be period. struction years approval ed within five of of the Mr. Person contends the Board is with- permit and the shall to be jurisdiction permit out to consider amend- use within an additional four beneficial period to ments extend the construction years. management The water board original five-year period. filed after discretion, approve any appli- may, in its (1) argument: He asserts two lines of cation for a lesser amount of water or expressly impli- SDCL 46-5-26 does not or vary periods may of annual use and edly grant authority the Board to consider permit appropriate to water shall be applications five-year to amend after the regarded accordingly. as limited (2) period, and Mrs. provides: 46-5-24
SDCL lapsed by operation of law and thus was place plans of construction or “existing permit” not an which could be amended, may no diversion be arguments amended. We address these may authorize extension separately. beyond of time for construction five years permit, except from the date of the A. provided by chapter. change A in as proposed point authority of diversion of The Board has to change plans permits. See, e.g., or of construction shall be amend water SDCL 46- 1-14,3 46-5-30.4,4 46-5-24, subject procedures to the contained in SDCL SDCL following provides: 2.We do not address the issues raised 3. SDCL 46-1-14 (1) by may Mr. Person: whether the Board management may The water board issue impairs amend Permit No. 4780-3 that it terms, any permit subject or license to condi- Person; (2) existing rights of Gerald whether tions, restrictions, qualifications, quantifica- 46-5-26, 1983, applies SDCL as amended in to perpetuity tions or limitations on consistent 4780-3; Permit No. the 1983 chapter with this which it considers promul- amendment to SDCL 46-5-26 must be protect public to interest and which gated may as an administrative rule and thus jurisdiction related to within the matters by not be enforced making the Board until such a rule- pursuant the board. Water issued and, (4) completed; is whether Isabel may this section be amended the board 15, 1988, Fryer’s application August dated timely expiration “exigent filed after cir- cumstances."
9H An application language 46-2A-8 46-5-26. of SDCL 46-5-26. § § may a with- to reinstate made 46-5-26, amendments authorizes reapplying compati- out soil-water period, is silent extend amendments; bility pursuant 46-5-6.2. timing § of such Any application under this section must provide expressly does statute years expira- be made within three prohibit amendments the consideration construction peri- five-year filed after chapter 46-2A. The Legis- The Board determined od. application for the to reinstate a date the circum- intended to broaden lature shall be the date the construction exten- under which stances reinstate is'filed. granted amending sions could be circum- include 46-2A-12 The Board thus concluded stances.” existing permit An amendment of an circumstances could existence granted change or license operate permit consideration of amend- use, change point diversion initial con- filed after the ments change only change if the does not other struction unlawfully existing rights and public for a beneficial use powers expressly In addition to *5 interest. conferred, pow implied such agency has necessary reasonably argues to effectu ers as are Person that once the initial Mr. powers. Spies Realty express period passed its Co. ate with- Services, Dept. extend, Fryer’s Social Mrs. wa- State out to of (S.D.1982). agency An “lapsed” longer no permit ter could be degree of may “existing permit” some discretion exercise as an under amended statutory construing obligations 46-2A-12; its under a permit SDCL could be grant re authority. Application of pursuant See to SDCL 46-2A-8.1. reinstated Kohlman, N.W.2d 674 “lapse” theory, Mr. Mrs. Under Person’s of se, of interpretation The Board’s right per did not her water lose provision rather, is consonant with priority against lost her oth- beyond scope intent not legislative analogizes Person appropriators. er Mr. authority. on lapse of its We affirm the Board of situation to the an Article 9 this issue. financing filing this not a continu- statement years lapse or the of a ation within five
B.
mortgage
real
for failure
collateral
estate
expiration
to
provides:
46-2A-8.1
to file an addendum
argu-
good
makes a
Person
management
may re-
The water
board
ment,
by precedent
under
but we
bound
any
permit
with
instate
water
the circumstances.
if unappropri-
date after March
available,
is
when construc-
In In re Cancellation
the Stabio
ated water
of
(S.D.
Right,
water
The circuit court in the instant jurisdiction We hold the Board had ing 46-1-127 and constitutional on SDCL amend the construction considerations, Mrs. Fryer’s per- that Mrs. found Fryer’s permit pursuant pro- SDCL 46-5-26. mit existed until cancelled with due Thus, Fryer’s permit cess. Mrs. was effec- II. amended. tive and could be We do not question reach the constitutional authority, Prior to the Board had require 46-5-26, the Board’s own rules notice and a to SDCL to extend the hearing. completion time for of construction works only upon delays: based The Board cancel physical engineering diffi- right longer is no valid. ARSD culties which could not have been rea- 74:02:01:36 8 Failure construct the nec sonably anticipated, or essary works within time limits *6 (2) permit. operation invalidates a water beyond ARSD of law the 74:02:01:37(1).9 procedure power applicant The for cancel- to avoid. appropriated, period may permit which it was cancel the or license for a third years, three such unused water shall revert to violation. regarded public unappro- the and shall be as (Nov. 1988) provided: 8. ARSD 74:02:01:36 The priated public water. may permit right board cancel a water or has become invalid and file a record of the provides: 6. SDCL 46-5-37.1 permit right cancellation in the water or record. Upon engineer the initiative of the chief or upon petition by any person interested 74:02:01:37(1)(Nov. 1988) provided: 9. ARSD An after reasonable notice to the holder of the permit right permit invalid water or is a water located, right permit, or if he can be the chief right following or which meets the conditions: engineer may investigate whether or not a (1) The works were not constructed permit right or has been abandoned or or the water to beneficial use within the investigation, forfeited. After the the chief specified time limits in SDCL 46-2A-8[.] engineer may recommend cancellation of the right permit or for reason of abandonment or (Nov. 1988) provided: 10. ARSD 74:02:01:38 If recommendation, forfeiture. The notice and investigation by engineer the chief indicates a hearing pursuant be conducted shall to the permit right pursuant or is invalid procedure chapter contained in 46-2A. 74:02:01:37, engineer prepare the § chief shall recommendation to cancel. If the holder of an 7. SDCL 46-1-12 right following invalid or is not known Any permit or license issued records, engi- examination of known the chief may suspended by this title or canceled publish pur- neer shall a notice of cancellation management order of the water board after a 46-2A-4(l) (8), applicable, suant to SDCL as hearing pursuant chapter 1-26 whenever and SDCL 1-26-17. permittee the board finds that an individual licensee, agent employee (Nov. 1988) or the or provided: of either 11. ARSD 74:02:01:40 Af be, board, vote, may hearing, by majority of them as the case has violated ter the the may right term of the or license. The board shall decide whether the water is suspend the or license for a to be cancelled or remain in force. The records violation; up year up to one for the first of the board shall show the reasons for all violation; years to three for the second cancellations.
913 (2) difficulties, operation engineering SDCL or Legislature amended the applicant, beyond the control of the an basis law as additional 46-5-26 to include (3) Clearly, exigent other circumstances. exigent circumstances delay, “other phrase “exigent is circumstances” to be Board's identified [Board].” predicates prem- interpreted light of the other were the circuit court’s decisions pro- enumerated the statute. upon “exigent circumstances” ised challenges only. Person vision provides statutory We hold this scheme to SDCL 46-5-26 an 1983 amendment guide agency sufficient standards legislative authority delegation of unlawful determining permit may a water when III, 1 of the South Article section under exigent amended due to circumstances. He the lan- Dakota Constitution. submits Legislature failed The fact that the to de- exigent circumstances guage “due to other disposi- is not fine management by the water identified Landers, Romey v. 392 tive. See N.W.2d guide lacks sufficient standards board” (S.D.1986). adopted 415 The definition of the Board. and control the actions agency, “extraordinary delegate subject control of may reasonably Legislature extension,” seeking the power person to administrative consonant quasi-legislative guidelines legislation. statutory chap- to effectuate agencies order ter. There has been no unconstitutional Conservancy Subdistrict Jank Oahe low, delegation in this case. 563 Boe 308 N.W.2d Foss, 77 N.W.2d S.D. III. delegation (1956). is valid where Such a (1) legislative clearly expressed there is The Board concluded as matter of delegate power, and a sufficient will to are not law guide agency. guide or standard to period, expand reason to Minneapolis v. Kehn First Nat’l Bank reason failure file also be (S.D. Ranch, Inc., such amendment within Ackerson, 1986); Karlen & Matter five-year period. We have affirmed the Schmitt, I. interpretation Board’s in issue How constitutional and presumed Statutes ever, Mr. Person submits circum not be held unconstitutional unless should so were not “exi stances of *7 infringement restrictions of constitutional delay completion project gent” as to plain palpable as to admit no is so and the construction to extend City reasonable Oien v. Sioux doubt. 286, Falls, (S.D.1986); 393 289 In N.W.2d mentioned, previously the As we have Community Ass’n dependent Bankers “exigent Board defined circumstances” to 737, (S.D.1984); State, 346 N.W.2d 739 “extraordinary circumstances not include Territorial Elec. Boun Matter Certain subject to control of the reasonably the 65, dries, (S.D.1979). 69 281 N.W.2d extension,” and person seeking the noted 46, nor- Legis further that enacting In SDCL ch. the of dif- general mally will include combinations expressly established the lature The Board concluded usage in state. ficult situations.” policy of water See Fryers’ the impact the through 46-1-5. that cumulative SDCL 46-1-1 of the break- guidelines ages, psychological the stress 46-2A-12 sets forth relationship Mr. permits John- generally, down their the amendment of water son, guidelines the stress of Johnson’s establishes economic and SDCL 46-5-24 Fryers, conges- the against and plans. lawsuit for the amendment of construction of Mr. constituted instances in tive heart failure defines those SDCL 46-5-26 under SDCL 46-5- period may exigent circumstances be ex discussed, court these facts previously 26. The circuit found As have tended. clearly and affirmed erroneous period may be extended were not agree these factual physical that delays the Board. We unforeseeable 914 erroneous;
findings HENDERSON, J., are not HERTZ, how Circuit Judge, Acting Court ever, Supreme as a whether these facts constitute exi Court Justice, concur. gent justifying delay is a question mixed law-fact which we review SABERS, J., concurs in result. Int’l, Inc., de novo. In Matter Groseth MILLER, C.J., concurs 232 Permann ' part. dissents Labor, Dept. v. South Dakota Unem AMUNDSON, J., been a Div., ployment 411 Ins. N.W.2d 115- member of the court at the time this case 17 historical facts are “[T]he argued, participate. established, admitted or the rule of law is undisputed, and the issue is whether the SABERS, result). (concurring Justice satisfy facts standard[.]” simple This is a case. It complicat- is not Permann, 411 at (quoting 29, 1986, July Fryer’s ed. On conditional Swint, Pullman-Standard 456 U.S. lapsed. 46-2A-8; n. 102 S.Ct. 1790 n. 74:02:01:37(1). date, ARSD After that (1982)). L.Ed.2d n. Board was barred doing anything from which would existing perfected addressing
Without
whether the circum-
46-2A-12;
of Person. SDCL
Fryers justified
stances of the
delay in
46-5-24; 46-5-30.4.
construction, we hold their circumstances
ability
apply
did not encumber their
Stabio Ditch does not
to this case.
an extension within the
case,
construc-
appellant
possessed per-
period. Notwithstanding
fected
dating
advanced
from 1877. The
question was
age,
problems,
personal
perfected
medical
these
rights could
hearing
be lost without
stress,
be-
Fryers prosecuted
economic
they
cause
had been in
disuse “for a
Johnson,
eviction of Mr.
leased their land to
years”
of three
under SDCL 46-5-37. A
Fosters,
and transferred the water
three-year period
defined
to use
mit
into Mrs.
name all well before
failure
right
inherently ambiguous.
More-
29, 1986,
completing
the deadline for
over, SDCL 46-5-37.1 explicitly requires a
Fryers
construction works. The
were
hearing to determine whether abandon-
represented by
legal
counsel in all
proceed-
ment or
actually
forfeiture has
occurred.
ings.
and Fosters discussed
circumstances,
Under these
we held that
finishing
irrigation project,
freely
there can be no forfeiture of a water
deliberately
postponed completion be-
right
process
without the
hearing
due
cause of Mr. Johnson’s 1984 lawsuit for
required by SDCL 46-5-37.1. We fur-
damages. Clearly,
circum-
[appellant]
ther hold that
had a water
stances identified
the Board did not
right up and until
hearing
on forfei-
*8
prevent
Fryers
promptly
from
attend-
ture was finalized.
ing
Likewise,
to their business affairs.
the factual (and majority erroneous concedes not!) should not make our own
they attempt determinations
factual agree do not like or
overrule a result we City Tax
with. Matter State & Sales (S.D.1989); Liability, 437 N.W.2d (S.D.
Sharp
Sharp,
1988); Cty. Hwy. v. Fall River Strackbein
Dept.,
dull v. Homestake Min. SHEPHERD,
Riley Appellant, MANUFACTURING, Em
MOORMAN Liberty
ployer, and Mutual Insurance Insurer,
Company, Appellees.
No. 17079.
Supreme Court South Dakota. on Briefs
Considered Jan.
Decided March