source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2004 SD 35
    STATE of South Dakota, Plaintiff and Appellee, v. William R. MOSCHELL, Gene T. Smith and Denis K. Moschell, Defendants and Appellants.
    Nos. 22464-22466.
    Supreme Court of South Dakota.
    Argued Oct. 7, 2003.
    Decided March 10, 2004.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Robert E. Mayer, Deputy Attorneys General, Pierre, SD, for plaintiff and appellee.
    David M. Hosmer, Yankton, SD, for defendants and appellants.
   KONENKAMP, Justice.

[¶ 1.] Between October 1999 and December 2000, the South Dakota Game, Fish and Parks (GF & P) conducted an undercover investigation into the practices of a hunting guide service. In the investigation, undercover agents went on several hunts and hunted for a variety of game. The agents recorded numerous violations of South Dakota law. Defendants were charged and convicted of these violations. They appeal their convictions, contending that the legislative criminalization of GF & P regulations constitutes an unlawful delegation of authority, that several statutes and regulations are unconstitutionally vague, that their convictions rest on insufficient evidence, that the trial court improperly instructed the jury, and that their conditions of probation were unreasonable. We affirm on all issues.

Background

[¶ 2.] William Moschell operated a hunting guide service. Agents of the GF & P suspected that William and his associates operated the service in disregard of state hunting laws. Unable to verify these suspicions, the GF & P brought in two Iowa Department of Natural Resources conservation agents to work undercover. Throughout the investigation, the agents participated in hunts with defendants William Moschell, Denis Moschell, and Gene Smith.

[¶ 3.] On November 16, 1999, the agents made initial contact with William. He told them to return on the last weekend of the pheasant season and participate in a large group hunt. The agents agreed and made plans to return. On December 17, 1999, the agents met up with William at a game production area. The agents participated in at least two pheasant hunts on that day. During the hunt, the agents observed radio coordination by the group members.

[¶ 4.] The following morning, December 18, 1999, the agents participated in a coyote hunt. Around noon, the members of the coyote hunting group returned to William’s farm to organize an afternoon pheasant hunt. The large group of people split into two groups. One group consisted mainly of paying customers, while the other group consisted of William’s friends. During the pheasant hunt the agents made the following observations:

1. William received messages over a radio informing him of the location of certain game;
2. William aimed his shotgun at pheasants from a vehicle;
3. Thirty-one members were hunting in a single group; and
4. William had possession of a hen pheasant.

Upon returning to William’s farm, the agents made arrangements to come back on the opening pheasant hunting weekend the following year.

[¶ 5.] As arranged, the agents returned on October 21, 2000, the opening day of pheasant season. Once again, the participants were organized into two hunting parties. Members of the agents’ group included William and Denis Moschell. The agents counted 26 members in their hunting group. Most of the agents’ group was dropped off along the western edge of a field. As the hunters moved east, the agents noticed a large group of hunters moving toward them. The group of hunters moving toward the agents was the second group from William’s farm.

[¶ 6.] The agents testified that they believed the members of that group were acting as blockers for their own group. However, a fence separated the two groups. William told the agents’ group not to cross the fence because it was illegal to hunt in groups larger than 20 members. When the two groups met on opposite sides of the fence, 47 hunters were present.

[¶ 7.] On October 22, 2000, the agents returned to the Moschell farm. Following several hunts, the agents noted that William had in his possession a hen pheasant. At the conclusion of the day, the agents made arrangements to return later in the year to participate in a deer hunt.

[¶ 8.] The agents returned to William’s farm on November 24, 2000. On that day, the hunting group included William, Denis, Gene Smith, and several other hunters. During the hunt, the agents observed:

1. A dog catch and return a hen pheasant to Denis who placed it under the seat of William’s vehicle;
2. William receive a message over a radio alerting him to look out his window;
3. William chamber a round and twice point his shotgun out the window of his moving vehicle in an apparent attempt to shoot a hawk; and
4. William drive his vehicle into a field toward a pheasant that had been observed.

[¶ 9.] The next morning, November 25, 2000, the agents returned to hunt deer. William instructed that each vehicle should carry at least one deer license. William also told the group to use the radios for coordination, but to use the appropriate code words, since using radios was illegal. The agents rode in the vehicle with Denis. Denis had only one deer tag, which was a landowner’s tag. During the hunt the agents observed:

1. Denis chamber a round into his rifle and take aim at a cottontail rabbit;
2. Denis obtain a radio for the purpose of communicating with the other groups; and
3. Denis shoot and kill a buck, not on his own land. The agents did not observe Denis tag the buck.

[¶ 10.] On November 26, 2000, the agents returned for their final day of hunting. During this hunt the agents observed:

1. William use a radio to communicate with others in the hunting party regarding the location of game;
2. William use his vehicle to intercept and block an escaping buck;
3. Gene Smith shoot and kill a buck despite not having a deer license;
4. William order others to load an untagged deer into a vehicle so that the feet were toward the vehicle passengers, thus allowing it to be quickly tagged in case they were stopped by an enforcement agent; and
5.Denis unload another untagged deer, which Denis said had been shot behind his home.

The agents never observed a tag being placed on Smith’s deer. According to the agents, they later saw Smith’s deer lying in William’s shop without a tag.

[¶ 11.] A jury convicted William, Denis, and Gene on several hunting violations. Each defendant was fined, ordered to pay restitution, assessed court costs, and sentenced to serve a term in jail. In addition, their hunting and trapping licenses were revoked for a period of time. As part of probation, the trial court suspended the jail sentences and imposed several conditions on defendants. Among those conditions, each was ordered to report to jail by 1:00 p.m. the day before the opening day of pheasant hunting season. Defendants would then spend the following twenty days in jail. This condition lasted for as long as defendants remained on probation.

[¶ 12.] Defendants now appeal on the following issues: (1) Whether GF & P regulations are an improper delegation of core legislative lawmaking powers. (2) Whether the defendants faced a “choice of evils” because of a statutory scheme that is impermissibly vague. (3) Whether statutory law forbidding one to “receive” an electronic form of communication is vague and overbroad. (4) Whether a cottontail rabbit is a “rodent.” (5) Whether accidental or fence-separated hunting negates cooperation. (6) Whether there was sufficient evidence to show that a motor vehicle was used to disturb game animals. (7) Whether there was sufficient evidence to show Denis Moschell twice failed to tag big game, and hunted big game without a license. (8) Whether there was sufficient evidence to show that Gene Smith hunted big game without a license and shot big game from a road right-of-way. (9) Whether the trial court’s instruction relating to the legitimacy of the undercover investigation was given in error, and if so, whether it created reversible error. (10) Whether the trial court imposed reasonable and legal conditions on the suspension of a term of imprisonment.

Analysis and Decision I.

[¶ 13.] Defendants first call on this Court to review whether the regulations promulgated by the GF & P originate from a proper delegation of authority by the Legislature. Where a party challenges the constitutionality of a statute, our review is de novo. Boever v. South Dakota Bd. of Accountancy, 1997 SD 34, ¶ 7, 561 N.W.2d 309, 311 (citing Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398). SDCL 41-2-18 provides in part:

The Game, Fish and Parks Commission may adopt such rules as may be necessary to implement the provisions of chapters 41-1 to 41-15, inclusive. The rules may be adopted to regulate:
* * *
(2)The hunting, taking, killing, possession, sale and transportation of all wild birds, wild animals and wild fish....
* * *
(14) The devices, weapons, ammunition, traps, tackle, bait, lures and equipment which may be used to hunt, kill, capture or locate any wild animal or fish if use of the above items would adversely affect the health, safety or welfare of people or wildlife resources;
(19) The number of persons who may cooperate as a group in the pursuit, hunting, taking or killing of game birds or game animals;
* * *
The rules shall be adopted pursuant to chapter 1-26 and shall be in accordance with the provisions of this chapter.
A violation of the substantive provision of any rule authorized by this section is a Class 2 misdemeanor. If the same incident is a violation of statute and of the rules authorized by this section only the penalty authorized for the violation of the statute may be imposed.

[¶ 14.] Defendants contend that this statute is an improper delegation of legislative power. The principle restraining the delegation of certain legislative powers derives from the separation of powers doctrine, explicitly stated in Article II of the South Dakota Constitution. That Article provides that “[t]he powers of the government of the state are divided into three distinct departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this Constitution.” This provision encompasses three prohibitions: (1) no branch may encroach on the powers of another, (2) no branch may delegate to another branch its essential constitutionally assigned functions, and (3) quasi-legislative powers may only be delegated to another branch with sufficient standards. Boe v. Foss, 76 S.D. 295, 77 N.W.2d 1 (1956).

[¶ 15.] Under this doctrine, the Legislature cannot abdicate its essential power to enact basic policies into law or delegate such power to any other department. However, once the Legislature has created broad policy through its enactments, it may delegate in the execution of that policy certain quasi-legislative powers or functions to executive or administrative officers or agencies, provided it adopts standards to guide those officers or agencies in the exercise of such powers. Id. at 11. The question here is whether the Legislature gave sufficient guidelines or standards to the GF & P.

[¶ 16.] The test is to examine the challenged legislation to learn whether it delegates the power to create basic policy or fails to supply intelligible standards as guides in the exercise of the power delegated. Id. at 12-13. In Hogen v. South Dakota State Bd. of Transp., 245 N.W.2d 493 (S.D.1976), the Court considered standards that allowed a delegation of power if it was determined to be “necessary” or “reasonable.” The Court concluded that “[a] statute or ordinance which in effect reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary powers and is an unlawful delegation of legislative powers.” Id., at 497 (quoting Affiliated Distillers Brands Corp. v. Gillis, 81 S.D. 44, 50, 130 N.W.2d 597, 600 (1964)).

[¶ 17.] In Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559 (S.D.1981), the Court described the test as one of sufficiency. Did the delegation sufficiently prescribe a policy, standard, or rule for carrying out the legislative objective? Id. at 563. A delegation will not stand if it grants “unlimited or absolute discretion.” Id. at 564 (citing Wall v. Fenner, 76 S.D. 252, 76 N.W.2d 722 (1956)); see also Schryver v. Schirmer, 84 S.D. 352, 171 N.W.2d 634 (1969).

[¶ 18.] From these cases, the doctrine is settled: the Legislature cannot delegate its essential lawmaking powers to any other department; however, it may delegate quasi-legislative powers to an administrative agency to carry out legislative objectives, provided that the delegation has sufficient guidelines. See, e.g., First Nat’l Bank v. Kehn Ranch, Inc., 394 N.W.2d 709 (S.D.1986); Kehn Ranch, Inc. v. Milbank Mutual Insurance Company, 394 N.W.2d 709, 718 (S.D.1986).

[¶ 19.] Defendants argue that defining the specific elements of a crime is an essential function of the Legislature, and as such, is not delegable. However, it is the policy guidance, not necessarily the details or elements, that control whether a delegation of power is permissible. In Boe, the Court wrote that it is fundamental that “the Legislature cannot abdicate its essential power to enact basic policies into law[.]” 77 N.W.2d at 11. It is equally “fundamental and settled ... that having written broad policy into law the Legislature, in the execution of that policy, can delegate quasi-legislative power or functions[.]” Id. (citations omitted) (emphasis added).

[¶ 20.] In Affiliated Distillers Brands Corp., we explained the interplay between legislative policy and agency rule making:

The theory of administrative rule making is that in certain fields and in some respects public interest is better served by delegating a large part of detailed law making to expert administrators, controlled by policies, objects and standards laid down by the [Legislature, rather than having details spelled out through traditional legislative process.

130 N.W.2d at 599 (citations omitted) (emphasis added). In adopting the rationale presented in Boe, we stated, “[T]he delegation is not constitutionally offensive where the [Legislature has adopted a clearly declared policy and has laid down understandable standards to guide the administrative action.” Id. (citations omitted) (emphasis added).

[¶ 21.] Finally, in South Dakota Migratory Bird Ass’n v. South Dakota Game, Fish and Parks Comm’n, 312 N.W.2d 374, 376 (S.D.1981), this Court specifically held that the predecessor of the current version of SDCL 41-2-18 provided “the sufficient guide” to the GF & P to carry out the legislative policy set forth in that statute.

[¶ 22.] Defendants miscalculate in relying on our holding in State v. Johnson, 84 S.D. 556, 173 N.W.2d 894 (1970). In Johnson, we held unconstitutional a statute that “attempt[ed] to adopt any and all regulations and changes therein promulgated under the federal act in futuro ad infinitum.” Id. at 558, 173 N.W.2d 894. Certainly, our holding did not rest on the fact that the Legislature delegated the determination of elements of a penal statute to an administrative agency.

[¶ 23.] We decline to break with our own precedent to follow, as defendants advocate, the decision in State v. Broom, 439 So.2d 357 (La.1983). There, the Louisiana Supreme Court determined, “Under the Louisiana Constitution of 1974, the Legislature cannot delegate the right to define felony offenses to administrative bodies or department heads.” Id. at 369. Other than its declaration that the delegation of such power is unconstitutional, the Broom Court provides but a single sentence to support its rationale, “ ‘With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.’ ” Id. (citation omitted). At a minimum, the Court’s reasoning is circular. The decision purports to adhere to the “carefully crafted restraints spelled out in the Constitution.” However, the Court leaves unanswered the unavoidable question, what are those restraints spelled out by the doctrine of separation of powers? Without reason or rationale, the Broom Court merely supposes that defining criminal offenses is within the “carefully crafted restraints.”

[¶ 24.] SDCL 41-2-18 provides sufficient guidance for the GF & P. The Legislature clearly expressed a will to protect our state’s wildlife. Further, it guided the GF & P on the adoption of certain rules and regulations. Among the Legislature’s stated policies in the statute is that the GF & P should regulate: the “hunting” of “wild birds” and “wild animals;” the weapons that should or should not be used by those desiring to hunt; and the “number of persons” in a hunting group. Finally, it was the Legislature, not the GF & P, that determined that violations of the regulations promulgated by the GF & P would be a Class 2 misdemeanor.

[¶ 25.] “There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside of the halls of legislation.” Field v. Clark, 143 U.S. 649, 694, 12 S.Ct. 495, 505, 36 L.Ed. 294, 310 (1892). Our Legislature cannot know in advance each year, for example, what the pheasant population will be each fall hunting season, or the deer population, or how recent weather conditions affect the condition of our wildlife. The GF & P has the expertise to ascertain this type of information and regulate hunting from season to season. That the Legislature refused to deem itself an expert in the field of wildlife conservation is of no legal import, and our constitution does not lay such a burden on it. We conclude that the delegation of power in SDCL 41-2-18 is proper.

II.

[¶ 26.] With respect to the possession of a hen pheasant, defendants next argue that they “faced a ‘choice of evils’ because of a statutory scheme that is im-permissibly vague,” and because of that scheme, the trial court’s refusal to allow an instruction that they faced a “choice of evils” was an abuse of discretion. In examining the issue, we look to the pertinent language of the statutes. SDCL 41-11-4 provides:

Except as provided in § 41-11-5, no person may hunt, take, kill, ship, convey, or cause to be shipped or transported by common or private carrier to any person, either within or without the state, buy, barter, expose for sale, sell to anyone, have in possession or under control at any time, any ... Chinese ring-necked or English pheasant ... or any part thereof. A violation of this section is a Class 2 misdemeanor.

The exception, SDCL 41-11-5, authorizes the GF & P to establish a hunting season on any of the fowl specified in SDCL 41-11-4. SDCL 41-1-4 provides, “No person may wantonly waste or destroy any of the birds, animals, or fish of the kinds protected by the laws of this state. A violation of this section is a Class 2 misdemeanor.”

[¶ 27.] We need not delve into an abstract analysis of the language presented in SDCL 41-1-4; a brief look at the definition of the word “waste” is sufficient. The American Heritage Dictionary defines “waste” as “[t]o use, consume, spend, or expend thoughtlessly or carelessly.” AmeRican Heritage College Dictionary 1523 (3d ed 1997). Standing alone, this definition suffices to expose the defendants’ flawed logic. South Dakota law specifically prohibits the unauthorized possession of a hen pheasant. Therefore, one who would leave a hen pheasant in a field, in compliance with the law, cannot be said to have carelessly or thoughtlessly misspent that pheasant. Under such circumstances, a citizen would be obeying the laws of the State.

[¶ 28.] Defendants’ argument that they were presented with a “cruel dilemma” when faced with the decision to either leave behind a dead hen pheasant or take possession of and transport the hen pheasant is meritless. The trial court did not abuse its discretion in denying defendants’ proposed instruction.

III.

[¶ 29.] Defendants William and Denis Moschell were convicted of using electronic equipment to hunt, in violation of ARSD 41:06:04:08. That regulation provides:

A person may not send or receive a message by radio, cellular telephone, or other electronic form of communication while in or on a motor vehicle for the purpose of hunting big game, small game, or migratory waterfowl.
Defendants do not challenge this regulation, but they argue that Jury Instruction 5, explaining the regulation, was unconstitutionally vague and overbroad, thus allowing the jury to determine what the law should be.

[¶ 30.] Instruction 5 states in part, “Any person who sends or receives a message by radio, cellular phone, or other electronic form of communication while in or on a motor vehicle for the purpose of hunting big game, small game or migratory waterfowl is guilty of a crime.” Defendants argue that without a separate definition of the word “receives,” the jury was left to speculate on its meaning and breadth. They argue that a person receiving such a message may be found guilty of a crime despite having no intent to receive and use the message for the purpose of hunting game. The instruction stated the elements necessary to prove the offense.

1. The defendant did send or receive a message by radio, cell phone or other electrical form of communication;
2. Such message or communication took place while the defendant was in or on a motor vehicle; and
3. Such message or communication was given for the purpose of hunting big game, small game or migratory waterfowl.

[¶ 31.] For one to be found guilty of the crime, one must either send or receive “a message via radio, cellular phone, or other electronic form of communication.” However, only sending or receiving an electronic communication is not enough. One must also be either “in or on a motor vehicle.” Sending or receiving an electronic communication while in a vehicle is not enough. The regulation sets forth a final requirement that one may not send or receive the message for the “purpose” of hunting game. The final requirement mandates that one must have the intent to use the message to hunt game.

[¶ 32.] Defendants argue that the elements, as broken out in the instruction, do not require intent on the part of the receiver. Admittedly, the third element could have been better framed. A more proper definition of the third element might read, “Such communication or message was given or received for the purpose of hunting big game, small game, or migratory waterfowl.” However, we read jury instructions as a whole. State v. Frazier, 2001 SD 19, ¶ 35, 622 N.W.2d 246, 259 (citations omitted). In examining the instruction in its entirety, we note that the law as laid out in the instruction properly mandates that defendants intended to use the message for its prohibited purpose. Furthermore, Jury Instruction 16 provided, “In all of the crimes charged in the indictment the defendant must have criminal intent.” We cannot say that the instruction was so flawed as to warrant a reversal.

[¶ 33.] Defendants next argue that this violation implicates the First Amendment. Criminalizing the receipt of electronic messages designed to illegally enhance hunting does not offend any rights guaranteed under our Constitution. “[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written or printed.” Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487, 491 (1965). Freedom of speech does not extend its protection to speech used as part of criminal conduct. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688-89, 93 L.Ed. 834, 841 (1949). That South Dakota has a significant interest in protecting its wildlife is not contested here, only that the means are broader than necessary. In very specific terms, the rule narrowly defines the communication that is prohibited. Defendants are incorrect in their assertion that the rule prohibits an individual from merely receiving information without any intent. Consequently, the regulation did not deny defendants any of their constitutionally protected rights.

[¶ 34.] Here, there was ample evidence from which a jury could decide that defendants had the requisite intent. This is not a case of someone inadvertently receiving a message. The defendants had a method of hunting that included radio communications detailing the location of big and small game. On several occasions, messages were given to various hunters in the party. On receipt of those messages, the receiver would immediately react to the message. The hunters not only received messages, but from their conduct it could be inferred that they expected to receive those messages. A system of code words was devised by defendants indicating that they were aware that their conduct was prohibited. We cannot say the regulation was overly broad, or that the instructions inadequately set forth the law.

IV.

[¶ 35.] Defendants next contend that a cottontail rabbit is a rodent, and therefore, ARSD 41:06:04:07 did not prohibit the pointing of a firearm at a rabbit from inside a motor vehicle. They reason that the trial court erred because the instruction incorrectly states the law. The standard for determining whether a statute is unconstitutionally vague is whether it gives people of ordinary intelligence fair notice that certain conduct is prohibited. U.S. v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). One cannot be held criminally liable for conduct one could not reasonably understand to be forbidden. Id. A statute is unconstitutionally vague where people of ordinary intelligence may apply the statute differently. State v. Dale, 439 N.W.2d 98, 106 (S.D.1989) (citations omitted).

[¶ 36.] ARSD 41:06:04:07 provides:

A person may not allow a firearm to protrude from a motor vehicle or a conveyance attached to a motor vehicle on a public highway during a hunting season except while discharging the firearm at coyotes, jaekrabbits, rodents, skunks, badgers, raccoons, and foxes.

(Emphasis added.) SDCL 41-1-1(24) provides:

“Small game,” anatidae, commonly known as swans, geese, brants, merganser, and river and sea ducks; the ralli-dae, commonly known as rails, coots, and gallinue; the limicolae, referring specifically to shore birds, plover, snipe, and woodcock; the gruidae, commonly known as sandhill crane; the eolumbi-dae, commonly known as the mourning dove; the gallinae, commonly known as grouse, prairie chickens, pheasants, partridges, and quail but does not include wild turkeys; cottontail rabbit; and fox, grey and red squirrel. The term includes facsimiles of small game used for law enforcement purposes.

Jury Instruction 6 presented the regulation and its elements. Jury Instruction 7 states in its entirety, “Pheasants and cottontail rabbits are defined as ‘small game’ by South Dakota law.”

[¶ 37.] Initially, we look into the meaning of the term “rodent.” A cottontail rabbit is not a rodent in scientific terms. Scientific names derive from the science of taxonomy, the hierarchy of biological classification comprised of kingdom, phylum, class, order, family, genus, and species. See McGraw-Hill Concise Encyclopedia of Science and Technology 1847-48 (2d ed. 1989). We take judicial notice of the scientific classification of cottontail rabbits because in the taxonomic sense this issue is undisputed. Under SDCL 19-10-2 (Rule 201(b)(2)), “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Cottontail rabbits are mammals of the family Leporidae, order Lagomorpha. See Wilson, Don E., and DeeAnn M. Reeder, eds., Mammal Species of the World: A Taxonomic and Geographic Reference (Smithsonian Institution Press, 2nd ed. 1992). Rodents are a distinct group of mammals in the Rodentia order. Id. Thus, scientifically, there is no merit to defendants’ argument.

[¶ 38.] However, the defendants’ reference to SDCL 34-20-24, and the Webster Collegiate Dictionary seek to question whether a rabbit cannot perhaps be considered a rodent in a more general sense. SDCL 34-20-24 provides, “Section 34-20-24 shall not apply to the laying out of poison for the control of ground squirrels, pocket gophers, mice, prairie dogs, rabbits, and other food, crop, and tree destroying rodents or magpies and insects.... ” At first glance, the statute does appear to classify a rabbit as a rodent. Yet, a closer look at the statute can also lead to the conclusion that the phrase “other ... rodents” simply refers to rodents not listed in the statute. Therefore, the statute adds little to our analysis.

[¶ 39.] Next, defendants point to two separate dictionaries defining the term rodent. One of the definitions listed in Webster’s Collegiate Dictionary for “rodent” is “a small mammal (as a rabbit or a shrew) other than a true rodent.” Therefore, it would seem, at least according to some lexigraphical but not taxonomical authorities, that in a general sense a rabbit may be considered a rodent, though not a “true” rodent. Perhaps it is more accurate to say that they are “rodentlike.” See WebsteR’s Encyclopedic Unabridged Dic-tionasy (Gramercy Books 1994). Yet we do not believe that persons of ordinary intelligence would conclude that when a statute specifically describes a cottontail rabbit as “small game,” hunters may consider them “rodents” for the purpose of shooting them from their automobiles. When statutory provisions conflict and full weight cannot be given to each, the more specific statute should be deemed to reflect legislative intent. Cf. State v. Greger, 1997 SD 14, ¶ 21, 559 N.W.2d 854, 864.

V.

[¶ 40.] We review defendants’ next four assignments for error under the following standard. This Court has repeatedly held that it will review the record to determine whether the State has presented sufficient evidence on which the jury could reasonably find a defendant guilty of the crime charged. State v. Guthrie, 2001 SD 61, ¶ 47, 627 N.W.2d 401, 420. We ask only if there is sufficient evidence in the record that, if believed, would be adequate to sustain a conviction beyond a reasonable doubt. Id. “[T]he Court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict.” State v. Gonzalez, 2001 SD 47, ¶ 7, 624 N.W.2d 836, 838 (citation omitted). We will set aside a jury verdict only when the evidence and the reasonable inferences from it fail to sustain any rational theory of guilt. State v. Hage, 532 N.W.2d 406, 410 (S.D.1995). As a reviewing court, we will not resolve conflicts in the testimony, pass on the credibility of witnesses, or weigh the evidence. Id. “[I]t is the function of the jury in resolving factual conflicts, to weigh the credibility of those who testify, and ascertain the truth.” State v. Moran, 2003 SD 14, 36, 657 N.W.2d 319, 328. All elements of the crime, including intent may be established circumstantially. Guthrie, 2001 SD 61, ¶ 48, 627 N.W.2d at 421; State v. Davi, 504 N.W.2d 844, 856-57 (S.D.1993).

a.

[¶ 41.] Defendants contend that two groups hunting on opposite sides of a fence cannot be said to be cooperating. We believe the presence of a fence separating two groups may negate an inference of cooperation, but whether their coming together was incidental is an issue of fact properly left to a jury.

[¶ 42.] ARSD 41:06:04:02 provides: “No more than 20 persons may cooperate as a group in hunting, except when hunting jackrabbits or predators.” According to the testimony of both undercover agents, it was normal practice for some of the hunters to act as “blockers.” Blockers are hunters who remain stationary while other hunters flush game. The result was that the game being herded in a particular direction must be eventually exposed either to those flushing the game or to the blockers.

[¶ 43.] Defendants argue that they could not have been cooperating because the groups were separated by a fence and did not commence their hunt at the same location. This argument simply defies logic. The larger the group of cooperating hunters, the greater amount of territory the hunters can cover. It was the presence of the blockers at the opposite end of the field that presented a barrier for the game being flushed, not the presence of a wire fence within that field. Given a sufficient number of hunters, a cooperating group could encircle large amounts of game.

[¶ 44.] Whether this large group of hunters was cooperating was a question of fact for the jury to determine. While the presence of many hunters in a field was insufficient to establish that they were cooperating, evidence was presented to the jury that the groups did have a common goal or benefit. The State presented evidence during the trial that defendants gave specific instruction on how to carry out the hunt. It was only necessary to show that defendants participated in a cooperative hunt. There was ample evidence to show that the groups of hunters did not come together by coincidence.

[¶ 45.] The jury was free to determine from the evidence presented that the two groups of hunters were in reality acting as one. The presence of the fence in the field presented no more of a legal barrier to the jury than it presented a physical barrier to the game in the field. Likewise, the jury was free to determine that the starting points of the hunters were merely part of a large-scale plan to flush the maximum number of game from the grounds being hunted.

b.

[¶ 46.] ARSD 41:06:04:06 provides:

In addition to the provisions of § 41:06:04:01, a person may not use a motor vehicle to scare, harass, disperse, rally, drive, chase, intercept, pursue or disturb in any manner big game, small game, or migratory waterfowl.

For their sixth assignment for error, defendants contend that “Parking close to the game does not equate to ‘disturbing’ the game.” We conclude that there was sufficient evidence presented from which the jury could infer that defendants intended to do more than park next to game, but, instead, intended to either scare, harass, disperse, rally, drive, chase, intercept, pursue, or disturb game.

[¶ 47.] First, defendants argue that the sole reason for driving a vehicle into a field was to move in closer for a shot at some pheasants. They argue that both agents stated during trial that the purpose of doing so was to draw closer for a shot at the birds. Second, defendants argue that when defendant William Moschell “drove his vehicle toward the location where a deer was seen,” the sole purpose was to move in “to get a better shot.” Again, defendants contend that witnesses to the event testified that the sole intent was to get a better shot.

[¶ 48.] Defendants argue that the evidence presented during trial could not reasonably allow the jury to find the requisite intent to “scare, harass, disperse, rally, drive, chase, intercept, pursue or disturb” game. Not only did the State’s witnesses testify about what they believed was the intent, but they also testified about what they actually saw. One agent testified, “We were chasing [the pheasants] out into the field.” He also testified that while pursuing a large buck in a vehicle, Defendant William Moschell “cut [the buck] off,” forcing the buck to turn in a different direction. The agent testified that weapons were aimed out of the windows of the vehicle during encounters. This is hardly a case where game was stationary in a field and a vehicle was used to gain a better vantage point. In both instances, the game was fleeing and a vehicle was used in an attempt to head off the game. Likewise, the other agent testified about the encounter with the pheasants, “[H]e took off chasing after [the pheasants].” As for the buck encounter, the agent testified that defendant William Moschell was “trying to cut the deer off, trying to beat the deer to the corner.” Both agents confirmed that during the encounters weapons were pointed outside the window of the vehicle in an attempt to shoot the game.

[¶ 49.] Testifying for the defense, neither Gerald Van Sickle nor James Roby mentioned intent during the particular encounters cited. When asked whether he remembered defendants chasing down a buck with his vehicle, Van Sickle testified, “I don’t remember.” Witness Roby’s testimony was put forth in a general nature referring to no specific event. When asked whether William Moschell would use his vehicle to pursue a deer, Roby testified, “I have seen that done, yes.” But Roby denied that he and William Moschell would ever use a vehicle to “chase” a deer down. He testified that he would “[s]ee if we can [come] close enough, sometimes I would do it, I guess, seem to get a better look at it.” With the conflicting testimony, the jury could have reasonably believed that William Moschell intended to do more than to park near game.

c.

[¶ 50.] Defendants next contend that insufficient evidence was presented at trial to convict Denis Moschell of two counts of failing to tag big game and hunting without a license, and insufficient evidence was presented to convict Smith of hunting big game without a license and shooting from a right-of-way. See SDCL 41-8-6; 41-8-18.

[¶ 51.] One of the agents testified that Denis shot a buck on November 25, 2000 for which he did not have a license. The agent said that Denis did not tag the deer. The other agent also testified that Denis shot a deer on that date and did not tag it. Finally, the agent testified that on November 26, 2000, he helped Denis unload another deer out of Denis’s vehicle. He testified that Denis stated he had shot the deer on his property, but there was no tag on the deer.

[¶ 52.] One agent testified that he saw Smith shooting at a buck on November 26, 2000. Both Agents testified that Smith claimed to have shot the buck. One agent indicated the location from where Smith had shot the buck. The jury chose to believe the agents. We find no error here.

VI.

[¶ 53.] Defendants next argue that Jury Instruction 19 improperly bolstered the State’s case and invaded the province of the jury. The first two sentences of Instruction 14 provide:

Undercover police investigations are an accepted and necessary part of law enforcement. The Court has determined that the undercover investigation conducted by the South Dakota Department of Game, Fish and Parks was properly and legally conducted.

Counterbalancing Instruction 14 were Instructions 25 and 29. Instruction 25:

You are the sole and exclusive judges of all questions of fact and the credibility of the witnesses and the weight to be given the testimony of each of them.
In determining the credit to be given any witness you may take into account the witness’ ability and opportunity to observe, memory, manner while testifying, and interest, bias, or prejudice the witness may have, and the reasonableness of the testimony considered in light of all the evidence in the case.
If you believe that any witness has knowingly sworn falsely to any material fact in the case, you may reject all of the testimony of such witness.

Instruction 29:

Consider this case carefully and honestly with due regard for the interests of society and the rights of the defendant. You should decide the case fairly and impartially upon the evidence and the instructions of the court. It must not be decided from any feeling of bias against or prejudice for the defendant.
Your duty upon such fair consideration of the case is to determine whether the defendant is guilty or not guilty of the offense charged.

[¶ 54.] We review jury instructions as a whole. Frazier, 2001 SD 19, ¶ 35, 622 N.W.2d at 259. If as a whole, the instructions mislead, conflict, or confuse then reversible error results. Moran, 2003 SD 14, ¶ 15, 657 N.W.2d at 324 (citations omitted). It is equally well-established that a party charging that an instruction was erroneous maintains not only the burden of showing that the instruction was error, but also the burden of showing that it was prejudicial. Id. Prejudice is established by showing that in all probability a jury would have returned a different verdict had the instruction not been given. Id. A bare assertion that an instruction created prejudice will not suffice. Wheeldon v. Madison, 374 N.W.2d 367, 372 (S.D.1985).

[¶ 55.] The trial judge composed Instruction 14 in response to his concern that “improper and misleading evidence [was] set before the jury.” The judge expressed two primary concerns. First, testimony during the trial might falsely lead the jury to believe that the GF & P improperly used state funds to finance the undercover operation. Second, questioning and testimony during the trial might lead the jury to conclude that because the agents were present while the illegal activity took place they had violated South Dakota law.

[¶ 56.] A similar instruction was given in State v. Strong, 90 S.D. 652, 245 N.W.2d 277 (1976). There, we found no reversible error when the trial court instructed, “In drug related offenses it is a recognized and permissible means of apprehension to have law enforcement personnel infiltrate the illegal activity and gain the confidence of the defendant. Hence, the use of undercover personnel does not, in itself constitute entrapment.” Id. at 661, 245 N.W.2d 277. Admittedly, the case presented before us is not entirely analogous. In Strong, however, it could be said that the argument against such an instruction would be greater than here. When used to define entrapment, the instruction goes beyond the issue of whether the instruction comments on an undercover agent’s testimony. The instruction necessarily cuts to the heart of the issue, whether the undercover operation constituted entrapment. We do not suggest here that the trial court intended such a use for its instruction. We simply note that on occasion, it is permissible for a trial court to comment on the legitimacy of an undercover operation.

[¶ 57.] Here, the instruction foreclosed the jury from considering the legitimacy of the undercover operation and whether the agents themselves acted legally. Defendants argue that in certain respects the trial court vouched for some of the actions of the agents. The instruction tells the jury that the agents acted “properly and legally” and that their actions were “accepted and necessary” in participating in the investigation. Yet, the legitimacy of the investigation was never realistically brought into question. Defendants do not suggest how the agents acted illegally or that somehow the agents’ actions led the defendants into criminal behavior they would otherwise have not committed.

[¶ 58.] Instructions 25 and 29 ameliorate Instruction 14. The erroneously given instruction did not take away the jury’s discretion in determining the credit to be given any witness, “[T]he witness’ ability and opportunity to observe, memory, manner while testifying, and interest, bias, or prejudice the witness may have, and the reasonableness of the testimony considered in light of all the evidence in the case.” Instruction 25 puts that duty on the jury. Instruction 29 informed the jury it was its duty “to determine whether the defendant is guilty or not guilty of the offense charged.” Whether the operation was legally and properly conducted was not an issue in the case. With these latter instructions, the jury was duly informed that it had the sole responsibility of judging the evidence presented.

[¶ 59.] Given that the erroneous instruction was confined to an issue not in controversy, and given that other instructions properly placed with the jury the determination of credibility of the witnesses we hold that the error and prejudice, if any, created by the instruction was harmless.

VII.

[¶ 60.] As their final assignment of error, defendants argue that the trial court’s sentences were unreasonable. In analyzing the issue of whether the conditions placed upon defendants were reasonable and legal, we first look to whether such an imposition is prohibited by law. SDCL 23A-27-18.1 provides:

The conditions of probation imposed ... or the conditions of suspension of execution ... may include the requirement that the defendant be imprisoned in the county jail for a specific period not exceeding one hundred eighty days or in the state penitentiary for a specific period not exceeding one hundred eighty days or the sentence which was imposed or which may be imposed by law, whichever, is less. The imprisonment may be further restricted to certain days specified by the court as part of such conditions.

Clearly, the statute recognizes that imprisonment may be imposed on those with suspended sentences and those placed on probation. It is equally clear that courts need not order defendants to serve those days consecutively. The statute allows jailing for a certain number of days as a condition of suspension of sentence or a condition of probation. Thus, there is no statutory prohibition precluding the conditions prescribed by the circuit court in this case.

[¶ 61.] Next, we look to whether the conditions were reasonable. Defendants were convicted of several hunting violations. Each defendant was sentenced as fallows: William Moschell, 2 years 38 days imprisonment; Gene Smith, 2 years 60 days imprisonment; and Denis Mosc-hell, 3 years 120 days imprisonment. The sentences were suspended on the condition that defendants follow certain conditions of probation. Here, it is perfectly logical and reasonable that as a condition of probation, the court imposed jail terms on defendants starting on the opening day of each hunting season. Given that their convictions evinced blatant disdain for the hunting laws, it would be during this specific time that defendants would more likely break the conditions of probation.

[¶ 62.] Defendants argue that the trial court already had several mechanisms in place to ensure their compliance with the law. But obviously, the judge believed that their disdain for the laws of this State showed that it would be unlikely that anything short of jail would discourage them from violating those laws again. Defendants argue that it was unreasonable to require William to pay fines and restitution and prevent him from guiding hunting expeditions. William operated a hunting service in almost complete disregard for the game regulations. We conclude that defendants have failed in their burden of showing that the trial court acted unreasonably in setting the conditions for probation.

[¶ 63.] Affirmed.

[¶ 64.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      .Jury Instruction 6:
      In Counts 14 and 22 William R. Moschell is charged with Protrusion of a Firearm from a Motor Vehicle.
      In Count 42 Denis K. Moschell is charged with Protrusion of a Firearm from a Motor Vehicle.
      Any person who allows a firearm to protrude from a motor vehicle on a public highway during hunting season except while discharging the firearm at coyotes, jaekrabbits, rodents, skunks, badgers, raccoons and foxes is guilty of a crime.
      The essential elements of the crime of Protrusion of a Firearm from a Motor Vehicle, each of which the State must prove beyond a reasonable doubt, are that at the time and place alleged:
      1. The defendant allowed a firearm to protrude from a motor vehicle;
      2. Such protrusion occurred on a public highway during a hunting season; and
      3. The defendant was not discharging the firearm at a coyote, jackrabbit, rodent, skunk, badger, raccoon or fox.


author: GILBERTSON, Chief Justice.

text:
    2004 SD 32
    Benjamin P. LAGGE, Claimant and Appellee, v. CORSICA CO-OP, Employer and Appellant, and Travelers Insurance Co., Insurer and Appellant.
    No. 22829.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 17, 2003.
    Decided March 10, 2004.

      Wally Eklund of Johnson, Eklund, Nicholson & Peterson Gregory, South Dakota and Jean M. Massa of Jensen and Mas-sa Winner, South Dakota, Attorneys for appellee.
    Sandra Hoglund, Timothy M. Gebhart of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appellants.
   GILBERTSON, Chief Justice.

[¶ 1.] Benjamin Lagge was injured while working at the Corsica Co-op. A prior summary affirmance from this Court affirmed his right to workers’ compensation from Co-op. Consequently, the Department of Labor held a hearing to determine whether Lagge was permanently and totally disabled. At the hearing, Co-op and their insurance company (Travelers Insurance Company) attempted to enter video surveillance tapes of Lagge into evidence. These tapes had not been disclosed to Lagge, so the Department refused to admit them. The Department also ordered that Lagge is entitled to receive permanent total disability benefits, and ordered Co-op and Travelers to make payments through Lagge’s attorney. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Lagge started working as a mechanic at Co-op in 1987. In early 1988, Lagge was injured while working at Co-op when an overhead garage door malfunctioned and came down on his left shoulder. Lagge saw several doctors because of this accident, including Dr. Dennis Johnson and Dr. Leonard Gutnik. Lagge was twice taken off work because of the injury. In May 1989, Lagge was fired from Co-op because he was no longer able to perform many of his job duties. He had trouble with these duties because his injury made it difficult for him to lift his left arm over his head.

[¶ 3.] Lagge next found work with a contractor. He ran a roller for the contractor, but only for approximately two weeks because the work bothered his neck and shoulders. In June 1989, Lagge began working at Petro Steel. Lagge worked at Petro Steel until December 1990, when he had surgery on his injured shoulder. Petro Steel would not allow Lagge back to work until the doctor gave him a “complete bill of health.” Dr. Johnson would not give Lagge a complete bill of health, and consequently, Lagge was terminated from Petro Steel.

[¶ 4.] In June 1991, Lagge filed a petition with the Department of Labor, alleging that while employed by Co-op, he sustained a work-related injury to his left shoulder and was therefore entitled to workers’ compensation benefits. Meanwhile, Lagge worked for John Deere until February 1992. He was having difficultly performing this job, so Dr. Gutnik recommended that Lagge try to re-train. As a result, Lagge left John Deere to enroll in an electronics program.

[¶ 5.] This program started in 1991 and ended in 1993. During that time, Lagge did some small engine work out of his home. He also worked thirty or more hours per week for the Douglas County Weed Board during the summer of 1992, and worked for a farmer during the harvest season.

[¶ 6.] After completing his electronics program, Lagge participated in the school’s interviewing process. However, he was unable to get a job. Consequently, Lagge started doing some respite care. This was a part-time job, and his hours varied with the number of people he was providing care for. Lagge also continued his small engine repair business.

[¶ 7.] On December 22, 1994, the Department held a hearing on Lagge’s 1991 petition. The Department ruled that Lagge’s employment activities after he left Co-op contributed independently to his condition. The Department determined that this relieved Co-op of liability under the last injurious exposure rule. Lagge appealed, and the circuit court reversed the Department. This Court affirmed the circuit court without opinion.

[¶ 8.] By early 1997, Lagge’s last respite care client went to the nursing home. In 1998, Lagge took a job as a maintenance worker at the nursing home. This job involved lawn mowing on a riding lawn mover, pulling weeds, replacing light bulbs, and repair of wheelchairs and walkers. The nursing home authorized Lagge to work twelve to thirteen hours a week doing this maintenance. Lagge also did light maintenance work and snow removal for four commercial and five residential locations in December 1998.

[¶ 9.] In preparation for the upcoming hearing to determine whether Lagge was permanently and totally disabled, the parties held a prehearing conference. Lagge listed the witnesses he planned to call at the hearing and Co-op and Travelers listed one witness that they intended to call. The Department entered a Prehearing Order including these witnesses and specifically stating that “the parties shall be bound by [the] Order unless objection is made in writing to the Department of Labor and received by September 15th, 1999. No changes will be allowed after that date except in the case of unforeseen exigencies.”

[¶ 10.] The hearing took place on June 6, 2000. At the time of the hearing, Lagge was working an average of sixteen to thirty hours per week at the nursing home. He worked nearly forty hours in the week before the hearing. This increase in hours was due to another employee’s time off and some remodeling at the nursing home. Lagge was also working up to forty-five hours per week at his own small engine and electronics repair business.

[¶ 11.] At the hearing, Lagge described his job at the nursing home as follows: “Mow lawn. Pull weeds out of flowers. Replace light bulbs. Repair, like wheelchairs. Walkers.” On cross-examination, Lagge denied doing any heavy or construction-type work at the nursing home.

[¶ 12.] However, Co-op and Travelers had videotaped surveillance of Lagge. The tapes showed Lagge using both arms in a variety of ways, including constructing a chain link fence, carrying fence posts and a railroad tie, and driving a fence post into the ground. Co-op and Travelers attempted to offer the tapes into evidence, but the Department refused because the tapes and the witnesses related to the tapes had not been disclosed in the Prehearing Order. In August 2001, the Department awarded Lagge permanent total disability benefits. The circuit court affirmed the Department.

[¶ 13.] Co-op and Travelers appeal, raising the following issues for our review:

1. Whether the Department erred in refusing to receive surveillance videotapes of Lagge.
2. Whether the Department erred in finding Lagge permanently and totally disabled under the odd-lot doctrine.
3. Whether the Department erred in ordering the payment of medical bills through Lagge’s counsel.

STANDARD OF REVIEW

[¶ 14.] In workers’ compensation cases:

Our standard of review ... is controlled by SDCL 1-26-37. “Under SDCL 1-26-37, when the issue is a question of fact then the clearly erroneous standard is applied to the agency’s findings; however, when the issue is a question of law, the actions of the agency are fully reviewable.” We will reverse only when, after careful review, we are firmly convinced a mistake has been made.... “The standard of review in an appeal to the Supreme Court from a trial court’s appellate review of an administrative decision is de novo: unaided by any presumption that the trial court is correct.”

Capital Motors, LLC, v. Schied, 2003 SD 33, ¶ 10, 660 N.W.2d 242, 245 (internal citations omitted). “Whether a claimant makes a prima facie case to establish odd-lot total disability inclusion is a question of fact.” Id. ¶ 11 (citation omitted).

ANALYSIS AND DECISION

[¶ 15.] 1. Whether the Department erred in refusing to receive surveillance videotapes of Lagge.

[¶ 16.] At the hearing on June 6, 2000, Lagge testified that the maintenance work he did at the nursing home consisted of: “Mow lawn. Pull weeds out of flowers. Replace light bulbs. Repair, like wheelchairs. Walkers.” On cross-examination, Lagge stated that he did not do any “heavy” work or any “construction-type work” at the nursing home. Lagge indicated that the only heavy grounds keeping he did was to “pull weeds in the flowers.” He further stated that he intends to continue working for the nursing home.

[¶ 17.] After Lagge rested, Co-op and Travelers called their first witness. To begin their case-in-chief, Co-op and Travelers called two private investigators who had taken surveillance tapes of Lagge. This was offered to refute Lagge’s substantive evidence on the extent of his injury.

[¶ 18.] Neither the tapes nor the private investigators had been included in the Prehearing Order. The Prehearing Order required the parties to disclose all of their evidence, including witnesses. In the Order, Co-op and Travelers listed only one live witness that they intended to call.

[¶ 19.] The parties were to be bound by the Prehearing Order unless they objected, in writing, by September 15, 1999. Neither party objected to the Order. Finally, the Order specifically stated that: “No changes will be allowed after that date except in the case of unforeseen exigencies.”

[¶ 20.] Co-op and Travelers argued that these were “rebuttal” witnesses. They argued that:

[T]he evidence was offered to impeach [Lagge’s] testimony regarding his abilities to use his upper extremities and the type of work he was capable of doing. Had [Lagge] testified forthrightly about his abilities, the impeaching evidence would never have been used. Yet disclosure of the evidence prior to ascertaining whether it will ever be used defeats its very purpose.

Ultimately, Co-op and Travelers argue that impeachment or rebuttal evidence need not have been disclosed before the hearing.

[¶ 21.] Lagge objected to the admission of the private investigators and the tapes. The Hearing Officer ruled that:

I guess I don’t agree [that they are rebuttal witnesses]. I’m inclined to think that — I mean, I don’t think I would place an insidious term upon it, such as trial by ambush, but it does place [Lagge] in the posture of not having the opportunity to prepare a defense against matters being presented in the hearing today. It was never identified in the pre-hearing conference or otherwise, Granted it is our practice not to require the identification of rebuttal witnesses, but I do not consider this type of testimony now being presented to be rebuttal testimony.
Pain is an element of a claim for permanent total disability benefits. More than beyond the issue of credibility, it’s a factual matter that has to be decided by me in an element which an insurer would anticipate it would have to defend in a matter of this type. I will therefore rule the objection is sustained and that this witness will not be permitted to testify.

[¶ 22.] Co-op and Travelers cite several cases for the proposition that surveillance tapes are admissible to impeach a claimant’s testimony. The question in this case is not whether the surveillance tapes are admissible; rather, the question is whether Co-op and Travelers can offer the evidence in violation of the Prehearing Order requiring pre-disclosure from both sides. In only one of the cases cited by Co-op and Travelers was prior notice of the tapes an issue. However, in that case, a discovery rule provided that “impeachment witnesses, and rebuttal witnesses thereto, need not be revealed.” Calleyro v. Mt. Sinai Med. Ctr., 554 So.2d 1208, 1209 (Fla.App.1990). The Prehearing Order in the instant case included no such exception.

[¶ 23.] Furthermore, most jurisdictions hold both the existence and contents of surveillance tapes to be freely discoverable. “Most courts addressing this issue have held that a party in possession of a surveillance video tape must disclose it to the opposing party prior to trial.” Roundy v. Staley, 1999 Ut.App 229, ¶ 9, 984 P.2d 404, 407 (citing Martino v. Baker, 179 F.R.D. 588, 589 (D.Colo.1998)). That court went on to note that:

For example, in Samples v. Mitchell, 329 S.C. 105, 495 S.E.2d 213 (App.1997), the defendant in a personal injury case offered a surveillance video tape of the plaintiff at trial after failing to disclose the tape in his answers to plaintiffs discovery requests. See id. at 214. In holding that the trial court erred in admitting the tape, the appellate court noted, “This question seems to arise most often when the defendant in a personal injury case has videotaped or collected some other visual evidence of the plaintiff after the accident to impeach the plaintiff on the extent of his or her injuries. Discovery of the evidence is generally permitted.” Id. at 215 (quoting 6 James Wm. Moore et al., Moore’s Federal Practice 26.41(4)(b) (3d ed.1997)).

Id. (emphasis added). In the event that a party is concerned that a claimant will conform their testimony to fit the videotape, the Department could allow an employer/insurer to depose the claimant prior to turning over the tape. See Shenk v. Berger, 86 Md.App. 498, 587 A.2d 551 (1991).

[¶ 24.]Finally, we note that Co-op and Travelers had almost a year from the time of the Prehearing Order to the time of the hearing itself in which they could have made a motion to the Department to amend the Prehearing Order to include the private investigators and videotapes. “Discovery rules are designed ‘to compel the production of evidence and to promote, rather than stifle, the truth finding process.’ ” Dudley v. Huizenga, 2003 SD 84, ¶ 11, 667 N.W.2d 644, 648. The Workers’ Compensation Act is intended to provide injured employees a remedy that is expeditious and relatively inexpensive. Harn v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D.1993). Allowing Co-op and Travelers to present evidence that was not disclosed in the Prehearing Order would contradict those intentions.

[¶ 25.] The Department did not abuse its discretion in refusing to admit evidence not disclosed in the Prehearing Order. Co-op and Travelers’s choice to present the witnesses and the tapes without prior disclosure was a violation of the Prehear-ing Order. Exclusion of that evidence was within the discretion of the Department.

[¶ 26.] 2. Whether the Department erred in finding Lagge permanently and totally disabled under the odd-lot doctrine.

[¶27.] Whether Lagge is entitled to permanent total disability benefits under the odd-lot doctrine is a question of fact. Capital Motors, 2003 SD 33, ¶ 11, 660 N.W.2d at 246. We apply the clearly erroneous standard to the Department’s findings of fact. “[Tjherefore, we will overturn fact findings only when we are definitely and firmly convinced a mistake has been made.” Lakota Community Homes, Inc. v. Randall, 2004 SD 16, ¶ 9, 675 N.W.2d 437, 440 (citation omitted).

[¶ 28.] The determination of whether Lagge is entitled to permanent total disability benefits, also known as odd-lot disability benefits, is made as follows:

[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income. Under this doctrine, an employee first bears the burden to show total disability. If it is “obvious” an employee falls within the “odd-lot” category, the employer must then prove positions in the community are available for persons with the employee’s limitations. A claimant may show “obvious unemployability” by: (1) showing that his physical condition, coupled with his education, training and age make it obvious that he is in the odd-lot total disability category, or (2) persuading the trier of fact that he is in fact in the kind of continuous, severe and debilitating pain which he claims. Inversely, if the employee is not obviously unemployable, the burden remains with the employee to demonstrate the unavailability of suitable employment, after reasonable albeit unsuccessful, efforts to find work.

Belhassen v. John Morrell & Co., 2000 SD 82, ¶ 13, 613 N.W.2d 531, 535. Lagge did not argue that he was “obviously unemployable.” Therefore, the only issue is whether he is “unable to secure anything more than sporadic employment resulting in insubstantial income.” Id.

[¶ 29.] Co-op and Travelers argue that because Lagge has been employed since his injury, he was not permanently and totally disabled. They assert that Lagge has worked steadily, and therefore is not “sporadically” employed. They further argue that Lagge failed to engage in a reasonable job search. Finally, they argue that their expert showed that suitable employment was available for Lagge.

[¶ 30.] Lagge points out, however, that their argument ignores the “insubstantial income” part of the law and provides a strained analysis of “sporadic.” The Department, in fact, rejected Co-op and Travelers’ argument, stating: “The Department holds that Employer/Insurer’s reading of the term ‘sporadic’ in the context of an Odd Lot case is too narrow. Using that interpretation, any employment which was held regularly and continuously would meet the standard, even though its earnings were not ‘substantial.’ ” The Department found that Lagge earned “nothing in some years, depending on his wife for support, and after losing his job at Petro Steel, never earned more than half his pre-injury earnings (not even factoring inflation).”

[¶ 31.] Co-op and Travelers assert that the Department’s reliance on Lagge’s tax returns was an improper method to make a determination of insubstantial income. In Davis v. Knippling, 1998 SD 31, 576 N.W.2d 525, income tax returns were admitted into evidence for use in determining plaintiffs lost earning capacity attributable to his injuries. Id. ¶¶ 15-17. We see no error in the Department’s use of Lagge’s tax returns.

[¶ 32.] In awarding Lagge permanent total disability benefits, the Department made the following findings of fact:

31. [Lagge] testified credibly about the impact his injury has had on his ability to work.
32. The testimony of [Lagge’s] vocational expert (Ostrander) that because of his injury and his resulting physical condition [Lagge] cannot obtain suitable employment given his, physical condition, education, training and age are adopted.
33. The employment obtained by [Lagge] since his injury has been sporadic and has resulted in earnings that are not and have not been substantial. This is also true with respect to employment that is available in the Corsica, SD area.
34. [Lagge] has demonstrated that he is motivated to find work and maintain employment.
35. [Lagge] demonstrated that he made more than reasonable and persistent efforts to locate prospective employers, inquire about available jobs and pursue job leads.
36. [Co-op and Travelers’s] evidence fails to demonstrate that there are specific positions, which are regularly and continuously available and actually open in [Lagge’s] community for persons with [Lagge’s] limitations.
37. [Co-op and Travelers’s] vocational expert opined that substantial/gainful employment is (and was) available to [Lagge]. Such opinion did not take into account the actual cost [and] expense of commuting to work for the jobs identified in Mitchell, SD (which would have the effect of reducing the real wage to $3.96 per hour and in some instances the jobs identified by [Co-op and Travelers’s] expert no wages or salaries were identified. The opinions of [Co-op and Travelers’s] expert are not well grounded in reason or fact and are rejected.
38. [Lagge] had, prior to the time of the labor market survey of [Co-op and Travelers’s] expert, applied for jobs similar to those identified at the hearing at the State Training School at Plankinton, Weber Implement in Parkston, VanDer-Werff Implement at Platte, and at Raven Industries at Parkston, SD. He was not successful in obtaining employment.
40. [Lagge] has demonstrated his entitlement to “odd-lot” benefits for permanent and total disability.

We first note that “[d]etermining the credibility of the witness is the role of the factfinder. Where the [Department] has resolved conflicts in evidence we cannot change its findings.” Schneider v. South Dakota Dept. of Transportation, 2001 SD 70, ¶ 14, 628 N.W.2d 725, 730 (citation omitted). Furthermore, a review of the record supports the Department’s findings. Based upon the record, the Department’s finding that Lagge established that he is entitled to odd-lot benefits is not clearly erroneous.

[¶ 33.] 3. Whether the Department erred in ordering the payment of medical bills through Lagge’s counsel.

[¶ 34.] The Department ordered Co-op and Travelers to pay Lagge $680 to reimburse him for a prescription drug bill. Co-op and Travelers were also ordered to pay the amounts billed by Dr. Gutnik and future amounts incurred for medical treatment and prescriptions related to his injury. Finally, the Department ordered that “sums currently owed shall be paid through [Lagge’s] counsel.”

[¶ 35.] Co-op and Travelers, however, contend that they should be allowed to pay Lagge’s medical providers directly. Co-op and Travelers do not contest their responsibility to pay the medical expenses causally related to Lagge’s injury. Rather, they wish to pay Lagge’s providers directly, with no third-party involvement. Furthermore, Co-op and Travelers point out that Travelers did not refuse to make reimbursement for Lagge’s prescription expense. Instead, Travelers asked Lagge to provide better itemization of his prescription bills.

[¶ 36.] SDCL 62^-1, our statute concerning medical expenses, is silent on how a claimant’s medical expenses should be paid. The statute requires an employer to provide necessary medical care, but does not specify to whom payment for that care should be made. Therefore, the Department’s order is not in violation of the statute.

[¶ 37.] Co-op and Travelers cite Larson’s Workers’ Compensation Law section 94.02[11] for the proposition that “[t]he normal rule is that the obligation to pay medical bills runs from the employer to the physician or hospital.” This rule was used by the Connecticut Supreme Court in construing a statute that required employers to provide necessary medical care without specifying to whom payment should be made. Pokorny v. Getta’s Garage, 219 Conn. 439, 594 A.2d 446 (1991). That court held:

The statute does not speak in terms of payment to the employee of the medical expenses incurred, but rather is limited to providing that the employee will receive necessary medical care at the expense of the employer, thereby establishing a direct relationship between, on the one hand, the employer and its workers’ compensation carrier, and, on the other hand, the medical care provider.

Id. at 454-55.

[¶ 38.] However, this authority is not binding. The Department’s order is not in contravention with any statute. Furthermore, payment through a claimant’s attorney is commonly done and is contemplated by statute. SDCL 62-7-36 states that attorney’s fees are a percentage of compensation benefits, which include medical expenses. Paying medical expenses directly to the medical care provider could deprive Lagge’s attorneys of the percentage of “compensation benefits” they are entitled to pursuant to the statute. See Stanton v. Hills Materials Co., 1996 SD 109, ¶ 20, 553 N.W.2d 793, 797 (Gilbertson, J., concurring) (noting that “[i]f attorneys are denied fees for work prosecuted on behalf of an injured work[er], there would be a chilling effect upon the ability of an injured party to obtain adequate representation”). The Department did not err in requiring Co-op and Travelers to pay for Lagge’s medical care through his counsel.

[¶ 39.] Affirmed.

[¶ 40.] SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

[¶ 41.] ZINTER, Justice, deeming himself disqualified, did not participate.

      . SDCL 62-4-1 provides:
      The employer shall provide necessary first aid, medical, surgical, and hospital services, or other suitable and proper care including medical and surgical supplies, apparatus, artificial members, and body aids during the disability or treatment of an employee within the provisions of this title. Repair or replacement of damaged prosthetic devices is compensable and is considered a medical service under this section if the devices were damaged or destroyed in a work related accident. Repair or replacement of damaged hearing aids, dentures, prescription eyeglasses, eyeglass frames, or contact lenses is considered a medical service under this section if the hearing aids, dentures, prescription eyeglasses, eyeglass frames, or contact lenses were damaged or destroyed in an accident which also causes another injury which is compensable under this law. The employee shall have the initial selection to secure the employee's own physician, surgeon, or hospital services at the employer's expense. If the employee selects a health care provider located in a community not the home or workplace of the employee, and a health care provider is available to provide the services needed by the employee in the local community or in a closer community, no travel expenses need be paid by the employer or the employer’s insurer.

      . SDCL 62-7-36 provides:
      Except as otherwise provided, fees for legal services under this Title shall be subject to approval of the department.
      Attorneys' fees may not exceed the percentage of the amount of compensation benefits secured as a result of the attorney's involvement as follows:
      (1)Twenty-five percent of the disputed amount arrived at by settlement of the parties;
      (2) Thirty percent of the disputed amount awarded by the department of labor after hearing or through appeal to circuit court;
      (3) Thirty-five percent of the disputed amount awarded if an appeal is successful to the Supreme Court.
      Attorneys’ fees and costs may be paid in a lump sum on the present value of the settlement or adjudicated amount.


author: MEIERHENRY, Justice. SABERS, Justice

text:
    2004 SD 34
    In the Interest of D.M., Minor Child, and Concerning, The Department of Social Services, Appellees, and Faye and Kelly Degen, Appellants.
    No. 22700.
    Supreme Court of South Dakota.
    Argued Oct. 6, 2003.
    Decided March 10, 2004.

      Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Department of Social Services, Pierre, South Dakota, Attorneys for appel-lee DSS.
    Todd A. Schweiger, Rapid City, South Dakota, Attorney for appellee Child.
    Debra D. Watson of Watson, Roetzel & McGowan, Rapid City, South Dakota, Attorneys for appellants.
   MEIERHENRY, Justice.

[¶ 1.] The child D.M. became eligible for adoption through the Department of Social Services (DSS) after the parental rights to the child were involuntarily terminated by the trial court. DSS began the process of finding an adoptive placement. Accordingly, DSS approved three adoptive families, two of the families were relatives of D.M., the other was a non-related foster family.

[¶2.] DSS rejected both of the family placements, selecting the foster family for D.M.’s adoption. Faye and Kelly Degen, a great aunt and uncle, were one of the family placements. After the termination of the parental rights in the Abuse and Neglect (A <& N) action and subsequent to DSS selecting the adoptive placement of the child, Degens filed a Motion to Intervene for the purpose of challenging DSS’s selection and seeking placement of the child with them. DSS claimed that De-gens were prohibited from intervening.

[¶ 3.] The trial court determined that Degens could not intervene as a matter of right, but could intervene if permitted by the court. Nonetheless, after a motion hearing, the trial court denied intervention because it would unduly delay D.M.’s adoption. We affirm. On appeal, Degens raise the following issue:

Whether Degens, as relatives of D.M., have the right to intervene in the A & N proceeding for the purpose of seeking adoptive placement of the child D.M. after they were approved but not selected by DSS.

[¶ 4.] The issue in this case involves statutory interpretation which “is a question of law, which we review de novo.” See Coble v. Hanson, 2001 SD 8, ¶ 5, 620 N.W.2d 772, 773 (citation omitted).

DECISION

[¶ 5.] Degens argue that they should be allowed to intervene as a matter of right under SDCL 15-6-24(a). To permit intervention, a court must determine if the requirements of the statute are satisfied. The statute provides:

Upon timely application anyone shall be permitted to intervene in an action:
(1) When a statute of the state confers an unconditional right to intervene; or (2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Id. (emphasis added). In applying SDCL 15-6-24(a), we have said “[t]he purpose of intervention is to obviate delay and the multiplicity of suits by creating an opportunity to persons directly interested in the subject matter to join in an action or proceeding already instituted.” Mergen v. Northern States Power Co., 2001 SD 14, ¶ 5, 621 N.W.2d 620, 622.

[¶ 6.] Initially, it should be noted that SDCL 15-6-24(a) is a rule of civil procedure which only applies to certain proceedings in the Child Abuse and Neglect Statutes. SDCL Ch 26-7A. The law provides that only adjudicatory hearings are “conducted in accordance with rules of civil procedure.” SDCL 26-7A-34(l). An adjudicatory hearing is “a hearing to determine whether the allegations of a petition alleging that a child is abused or neglected are supported by clear and convincing evidence or whether the allegations of a petition alleging a child to be in need of supervision or a delinquent are supported by evidence beyond a reasonable doubt.” SDCL 26-7A-l(2). The Degens did not seek to intervene at the adjudicatory phase of the proceeding but instead sought to intervene in the post-dispositional phase of the case. The rules of civil procedure do not apply to “dispositional hearings and all other hearings ... [which] shall be conducted and designed to inform the court fully of the exact status of the child and to ascertain the history, environment and past and present physical, mental and moral condition of the child and the child’s parents, guardian or custodian.” SDCL 26-7A-34(2). Since this was a review hearing following the court’s decision to terminate parental rights, the rules of civil procedure do not apply. Consequently, SDCL 15-6-24(a)(l) does not provide Degens a right to intervene as a matter of law.

[¶ 7.] Neither do the A & N statutes give Degens the right to intervene. The law is silent as to intervention by a family member seeking to adopt. Adoptive placement responsibilities are delegated to DSS without further directive or guidance. The law provides:

Upon the entry of the final decree of disposition terminating the parental rights of both parents or of the surviving parent, the court shall vest the Department of Social Services with the custody and guardianship of the person of the child for the purpose of placing the child for adoption and authorizing appropriate personnel of the department to consent to adoption of the child without need for any notice or consent of any parent of the child.

SDCL 26-8A-27.

[¶ 8.] In the 2002 legislative session, the South Dakota Legislature did expand the right to intervene in other (non-A & N) child custody cases and in certain circumstances gave non-related primary caretakers the right to intervene. SDCL 25-5-29. The law specifies a parent’s presumptive right to the custody of his or her child but allows that presumption to be rebutted by a non-relative intervenor. However, the legislature specifically excluded the right to intervene in A & N proceedings.

[¶ 9.] Degens, pointing to the adoption statutes, argue that the adoption statutes contemplate possible challenges to adoptions and, in effect, support their right to intervene. The adoption statute provides that when an order of adoption is challenged, the court is required to “give due consideration to the interests of the parties.” SDCL 25-6-2. Degens contend if a third party is not allowed to intervene and challenge the adoption, why would the statute specifically require the court to consider the “interests of the parties.” The statute provides:

In an adoption proceeding or in any proceeding that challenges an order of adoption or order terminating parental rights, the court shall give due consideration to the interests of the parties to the proceedings, but shall give paramount consideration to the best interests of the child.

Id. The proceeding in this case, however, was not an adoption proceeding, it was an A & N proceeding. Whether Degens have a right to intervene in a subsequent adoption proceeding is not the issue in this case nor was it raised or briefed by the parties.

[¶ 10.] Degens rely on an Iowa Court of Appeals case to support their right to intervene. The Iowa court held that a couple wishing to adopt had the right to intervene in an A & N proceeding as “interested persons” under a rule of civil procedure similar to SDCL 15 — 6—24(a)(2). In the Interest of C.L.C. and A.M.B. Children, S.A.B. and M.D.B. Husband and Wife, Appellants, 479 N.W.2d 340 (Iowa App.1991). The Iowa court relied on specific language of an Iowa statute that allowed the court to transfer guardianship and custody of a child to “a relative or other suitable person” following termination of parental rights. IA ST § 232.117(3). The Iowa court determined that as suitable persons the couple had a legal right to intervene. In contrast, South Dakota statutes do not give the “relatives or other suitable persons” the right to be considered as guardians. South Dakota law directs that “the court shall vest the Department of Social Services with the custody and guardianship of the person of the child.” SDCL 26-8A-27. (emphasis added). Our analysis must rely on the language of the South Dakota statute which is clearly distinguishable from the statute relied upon by the Iowa court.

[¶ 11.] The trial court here considered permitting Degens to intervene but ultimately determined that it was not in D.M.’s best interests to unduly delay the proceedings. Although the trial court did consider Degens’ request to intervene, the court ultimately denied it for reasons other than expressed in this opinion. “ ‘This court has consistently held that where the trial court reaches the right result it will not be reversed even though based on erroneous conclusions or wrong reasons.’ ” Communication Tech. Sys., Inc. v. Dens-more, 1998 SD 87, ¶ 20, 583 N.W.2d 125, 130 (citing Owens v. City of Beresford, 87 S.D. 8, 15, 201 N.W.2d 890, 893 (1972)). At this point our legislature has not provided relatives of abused and neglected minors a legal right to intervene in post dispositional A & N proceedings for the purpose of challenging DSS’s adoptive placement. We hold that the Degens did not have a right to intervene. Therefore, the decision of trial court is affirmed.

[¶ 12.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

[¶ 13.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 14.] I dissent. The majority opinion 1) provides DSS unwarranted power to dictate to trial courts the placement of children for adoption; 2) turns a trial courts’ grant of adoption in cases like this into a rubber stamping formality; 3) permits DSS to disregard its own policies regarding placement preference; and 4) prevents families from stepping into the breach when parental rights are terminated and DSS prefers, for whatever reason, another adoptive placement. This is a disservice to our children, our families, and our State.

[¶ 15.] As the majority opinion notes, the motion to intervene was made after both parents’ rights had been terminated. The terminations were final adjudications and the court retained jurisdiction only for “purposes of review of status of the child until the adoption of the child is fully completed.” SDCL 26-8A-27; SDCL 26-8A-29. The motion to intervene was made at a “post termination review” on September 16, 2002. Therefore, “[w]hether De-gens, as relatives of D.M., have the right to intervene in the A & N proceeding” (emphasis supplied) is an irrelevant question. The parties in this case were subject to SDCL chapter 25-6, the adoption statutes. Furthermore, the Degens have a legally protectable interest and a right of intervention. I would reverse and remand, allowing Degens their right to intervene in the adoption proceedings with regard to D.M.

[¶ 16.] 1. This decision should have been made under SDCL chapter 25-6 since the abuse and neglect proceedings were final.

[¶ 17.] A careful review of SDCL Chapter 26-7A and 8A reveals that A & N proceedings are for the purposes of determining whether a child is abused or neglected and if so, taking appropriate measures regarding the child’s disposition. If a child is found abused and neglected, the trial court proceeds to a dispositional hearing. That phase will determine parents’ status as to the child, with primary weight given to the child’s best interest. SDCL 26-8A-26; SDCL 26-8A-27; SDCL 26-8A-29. If the court makes the determination that parental rights should be terminated, an order is entered and the child is placed in the custody of DSS for adoption. SDCL 26-8A-27.

[¶ 18.] There are no provisions under SDCL Chapter 26-7A or 26-8A for determining who the adoptive parents will be, nor should there be, since South Dakota has a separate statutory scheme for adoption under SDCL Chapter 25-6. The majority opinion’s determination that Degens are not entitled to intervene in the A & N proceeding misses the mark. The correct question is whether a third party relative, who has been approved for adoptive placement, is entitled to be heard before a child is permanently placed with an unrelated family based solely on DSS recommendations. The answer is an unequivocal yes; our concern for the best interests of the child demands full consideration of all relevant facts in making the adoption placement.

[¶ 19.] SDCL 25-6-2 provides in part: In an adoption proceeding or in any proceeding that challenges an order of adoption or order terminating parental rights, the court shall give due consideration to the interests of the parties to the proceedings, but shall give paramount consideration to the best interests of the child.

The Department requested that the De-gens allow themselves to be considered as an adoptive placement. They underwent a home study and DSS investigation. They were approved. Then they were denied contact with the child, and found out only a week prior to the first hearing on the motion to intervene that they were not going to be considered as an adoptive placement. The Degens are blood relatives of the child with a desire to raise the child within her own family. Certainly they were an interested party in the adoption proceedings.

[¶ 20.] The conduct of DSS is especially arbitrary and unreasonable in these circumstances. First, it invites D.M.’s relatives into the proceeding by approving them for adoptive placement. Second, it causes them to get their hopes up and then third, attempts to cut off their chances without a hearing on the merits. This conduct then is approved by the trial court because it would cause “undue delay.” Nonsense. What difference is a matter of hours, days or even two weeks if that is what is necessary to find the best adoptive parents for this child? To finalize these proceedings without a hearing on the merits as to the “best” adoptive parents prevents the “best interests of the child” from being properly determined and results in an abuse of discretion. Furthermore, there is nothing in either the adoption statutes or the A & N provisions that requires analysis of whether hearing evidence on the child’s best interest will cause “undue delay.” At the least, the trial court abused its discretion in denying intervention based on a finding that it would cause undue delay. By denying intervention, the trial court substantially increased the delay by necessitating an appeal to this Court. An evidentiary hearing could have easily been concluded in much less time than this appeal will take.

[¶ 21.] The majority opinion asserts that this was not an adoption proceeding and that the question whether the Degens have a right to intervene in a subsequent adoption proceeding is not in issue. Assuming the majority opinion is correct is its assertion that this is not an adoption proceeding, I would respectfully point out that refusing to consider whether the De-gens can intervene in a subsequent adoption proceeding merely extends the “undue delay” the trial court was concerned about. Now the case can go back to the circuit court for consideration of the adoption, the Degens can attempt to intervene again, the court can deny intervention and the parties can once again bring this case back before this Court.

[¶ 22.] I agree with the general proposition that a child needs permanence as quickly as the court and DSS can provide it. However, haste is seldom a virtue that would lead to adequate consideration of a child’s best interests, and in this case, the concern about undue delay has prolonged this process by months.

[¶ 23.] 2. The Degens have a protect-able interest.

[¶ 24.] Assuming for the moment that the majority opinion is correct in its determination that this case is still under SDCL chapter 26-8A, the opinion improperly comes to the conclusion that Degens had no right of intervention. SDCL 26-7A-34 provides in part:

Hearings under [chapter 26-7A] and chapters 26-8A, 26-8B and 26-8C shall be conducted as follows:
(1) Adjudicatory hearings shall be conducted in accordance with rules of civil procedure under chapter 15-6, except as otherwise provided in this chapter; and
(2) Dispositional hearings and all other hearings shall be tried to the court and shall be conducted and designed to inform, the court fully of the exact status of the child and to ascertain the history, environment and past and present physical, mental and moral condition of the child and of the child’s parents, guardian or custodian.

(Emphasis supplied.) SDCL 26-7A-56 provides in part:

[T]he rules of civil procedure and the rules of evidence apply to adjudicatory hearings. All other hearings shall be conducted under rules prescribed by the court. The rules may be designed by the court to inform the court fully of the exact status of the child and to ascertain the history, environment and the past and present physical, mental and moral condition of the child and the child’s parents, guardian and custodian, as may be necessary or appropriate to enable the court to determine suitable disposition of the child according to the least restrictive alternative available in keeping with the child’s best interests and with due regard for the rights and interests of the parents, guardian, custodian, the public and the state.

(Emphasis supplied.) The Legislature left no doubt of its intention that the rules of civil procedure be relaxed during the dis-positional phase. The Legislature also made it clear that the trial court was to fully inform itself of the child’s circumstances, including their “history, environment and the past and present physical, mental and moral condition!)]” Id. It is undeniably in the best interest of the state and the public to preserve family ties whenever it is possible. The majority opinion leaves courts in the position of ignoring the fact that relatives of the child are available, interested, and approved for adoption whenever DSS expresses a preference for another family. This is an unwarranted expansion of the scope of DSS power and authority. DSS does not have unlimited authority over final adoptive placement. Rather, DSS selection of adoptive parents is subject to the court’s review and final approval. The court has the ultimate responsibility to determine the best interest of a child throughout the proceeding, including adoption. The majority opinion elevates DSS from the advisory and investigative role contemplated by the Legislature and presses trial courts into abdicating their role as the final arbiter of the best interest of the child.

[¶25.] The majority opinion concludes that there is no statutory authority providing the Degens’ with a right of intervention. I disagree. DSS’ internal policies provide the Degens a legally protected right to a preference above the foster family. This right gives them a legally protected interest in the dispositional proceedings. The South Dakota A & N statutes are silent as to preference for adoptive placement. They merely direct that DSS be vested with custody and guardianship “for the purpose of placing the child for adoption and authorizing appropriate personnel of the department to consent to adoption of the child[.]” SDCL 26-8A-27. By referring to well-settled law regarding a court’s review of agency determinations, we can overcome the perceived lack of legislative guidance in this area.

[¶ 26.] In Chevron, the United States Supreme Court clarified the role of courts and agencies when an agency is charged with the responsibility of administering a statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694. In the instant case, the Legislature has clearly given DSS the responsibility of investigation and recommendation in adoption proceedings. See SDCL 26-8A-27. Chevron held that when the court reviews an agency’s construction of a statute, it must make two inquiries:

1) Has Congress directly spoken to the precise question at issue? Chevron, 467 U.S. at 842-843, 104 S.Ct. at 2781-2782, 81 L.Ed.2d 694. If Congress’ intent is clear, the court and agency are bound to give effect to the expressed intent. Id. As the majority opinion notes, under the A & N statutes, the Legislature is silent as to preferential placement order for adoption. Therefore, the Court “does not simply impose its own construction on the statute as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court” is:
2) Whether the agency’s answer is based on a permissible construction of the statute.

Id. The Supreme Court clarified further, holding:

The power of an administrative agency to administer a eongressionally created "... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

Id. Under the authority granted to DSS through SDCL chapter 26-8A, ARSD 67:14:30 and ARSD 67:14:31, DSS has promulgated a “Procedures Manual.” This manual is given to case workers to guide and assist them in making appropriate assessments of children and their circumstances and making recommendations regarding foster care and adoption placement. On page six of that manual, DSS specifically provides an order of preference for permanent placement. At the top of the list of preferences is the “birth family,” which includes, “father, mother, grandparents, uncles, aunts, cousins, and other persons identified by the child’s family as significant others[.]” I submit that even under that portion of Chevron giving the least deference to agency regulations, this policy guideline is “reasonable” and should be enforced. Even in the absence of explicit Legislative directive, this Court has clear guidance in the guidelines of the agency as to family preference. The guideline is entitled to controlling weight. Chevron, 467 U.S. at 843, 104 S.Ct. at 2782, 81 L.Ed.2d 694. Therefore, these internal policies give the Degens a legally protectable right to a preference above the foster family. This right could only be protected by intervening in the adoption proceeding and the trial court abused its discretion in holding otherwise.

[¶ 27.] I would reverse and remand for a hearing on the merits.

      . SDCL 25-5-29 provides: Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or 26-8C, the court may allow any person other than the parent of a child to intervene or petition a court of competent jurisdiction for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship. It is presumed to be in the best interest of a child to be in the care, custody, and control of the child's parent, and the parent shall be afforded the constitutional protections as determined by the United States Supreme Court and the South Dakota Supreme Court. A parent's presumptive right to custody of his or her child may be rebutted by proof:
      (1) That the parent has abandoned or persistently neglected the child;
      (2) That the parent has forfeited or surrendered his or her parental rights over the child to any person other than the parent;
      (3) That the parent has abdicated his or her parental rights and responsibilities; or
      (4) That other extraordinary circumstances exist which, if custody is awarded to the parent, would result in serious detriment to the child.

      . If the court terminates the parental rights of the child’s parents, the court shall transfer the guardianship and custody of the child to one of the following:

      a. The department of human services.
      b. A child-placing agency or other suitable private agency, facility or institution which is licensed or otherwise authorized by law to receive and provide care for the child,
      c.A parent who does not have physical care of the child, other relative, or other suitable person.
      IA ST § 232.117(3) (emphasis added).

      . Mother’s rights were terminated on January 28, 2002. Father’s rights were terminated on October 16, 2001 and this Court summarily affirmed that termination on July 26, 2002.

      . At this hearing, counsel for Degens made a point of informing the court that they were not attempting to intervene in the A & N.