source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2008 SD 6
    STATE of South Dakota, Plaintiff and Appellee, v. Tory TIEGEN, Defendant and Appellant.
    No. 23759.
    Supreme Court of South Dakota.
    Argued On Oct. 3, 2007.
    Decided Jan. 16, 2008.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, for plaintiff and appellee.
    Kevin S. Lewis, Rapid City, South Dakota, for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Defendant was convicted of kidnapping Troy Klug. Klug is believed to be dead, but his body has never been found. On appeal, defendant asserts trial court error in: (1) denial of his right to a speedy trial; (2) admission in evidence of multiple out-of-court statements by a co-conspirator; (3) admission of his incriminating jailhouse messages written to a co-defendant, who defendant alleges acted as an agent for law enforcement investigators; and (4) his sentence of 100 years imprisonment after the court made statements suggesting that defendant probably killed Klug. We affirm on all issues.

Background

[¶ 2.] On July 12, 2004, Troy Klug and his girlfriend’s brother, Robert, went to Cynthia Kindall’s home to obtain drugs. Klug called his girlfriend, Duanna Beebe, multiple times, but she would not answer because she was upset at him for buying drugs. Later that day, Klug sent Beebe a text message asking if her brother, Robert, was with her. She responded that he was not. That was the last communication she had with Klug. As the day went on, Klug never came home, and she began to worry. She called his cellular phone multiple times and left messages. After 7:00 p.m., however, Klug’s voice mailbox was full and she could no longer leave a message.

[¶ 3.] Beebe later recounted in court that at 9:30 p.m. Cynthia Kindall and Tory Tiegen (defendant) showed up at her and Klug’s house. They came upstairs to her bedroom. She asked if they knew where Klug was. Kindall replied that Klug had shown up at her house, but she told him to leave. At some point, defendant and Kin-dall, while in Beebe’s bedroom, rummaged through Klug’s possessions. Defendant took a bottle of Klug’s cologne and said, “Well, if it’s Troy’s, it’s ours now.” Both Kindall and defendant made similar remarks about Klug’s things. Beebe pressed the two about Klug’s whereabouts. Kindall said that Klug was no longer a problem, and remarked, “Isn’t that right, Tory” to which defendant responded, “Yes.” According to Beebe, they were smirking when they said this.

[¶ 4.] The next day, July 13, Beebe had a friend staying with her. Just after midnight, Kindall and defendant showed up at her home again. They entered through her living room window and came running up the stairs. Kindall went into Beebe’s bedroom and kept asking Beebe what was wrong with her. Beebe was in bed recuperating from an operation. Her incision had become infected. Beebe’s friend asked them what happened to Klug. Kin-dall responded that she did not know where he was. Then, she said to Beebe, “Honey, I need you to come with me. I got to go away for a while and I need you to go with me.” Beebe refused to go. During this exchange defendant was pacing back and forth and finally said that they did not have time and needed to go. Beebe told them she had filed a missing persons report on Klug and that she was probably on twenty-four-hour surveillance. At that point, they left.

[¶ 5.] At 3:00 a.m. on July 14, 2004, Kindall and defendant showed up in Kin-dall’s vehicle at Tell Cook’s home in Belle Fourche, South Dakota. According to Cook, Kindall and defendant were ranting about people owing money and about snitches. Klug allegedly owed Kindall $300 from previous drug deals. Defendant had Cook come to the trunk of Kindall’s vehicle. Defendant opened the trunk, revealing a man inside. His hands, feet, and head were bound with duct tape. He was face down, with his feet in the air, stripped naked except for boxer shorts. Defendant punched him in the back and yelled, “wake up mother fucker.” The man made muffled noises. Cook believed he was still alive. When Cook asked what defendant was going to do, defendant said they would either “go to Denver and turn him in or go to North Dakota and dig a hole.”

[¶ 6.] The next day, July 15, defendant and Kindall showed up again at Cook’s house. Cook asked defendant what he had done with the man in the trunk. Defendant replied that he put him in a toolbox and left him there all day. Cook asked if he gave him water because it was hot. Defendant replied, “No, and it’s too late for all that anyway.” Cook recalled that defendant said he had gone to the toolbox a few times throughout the day and was beating the man. Defendant said to Cook that he felt bones crush in his face and he thought “that’s what did him in.”

[¶ 7.] At 4:00 a.m. on July 17, Kindall and defendant arrived in North Dakota at Ross Thomas’s home. Jamie Keefe saw both of them there. At 9:30 p.m., according to Keefe, defendant was cutting fringes on a blanket and Kindall was doing laundry. Defendant asked Kindall if she was washing the laundry in cold water, to which she responded, “Yes, I washed it in cold water.”

[¶ 8.] On July 18, Kindall and defendant were still at Thomas’s residence. Keefe helped them clean out Kindall’s car. According to Keefe, the inside of the car was stripped down to the metal frame. Bleach had been poured in it. Maggots were floating in a solid layer on the bleach. Defendant told her he poured about three gallons of bleach in the car and that the maggots were from a milk spill. Keefe helped defendant clean by scrubbing and using a shop vacuum to suck up the bleach. The rags they used to clean the car were eventually taken to a fire stoke and burned. According to Keefe, at some point, Kindall yelled at defendant that the car should have been cleaned five days ago. Keefe recalled that defendant attempted to clean the car’s upholstery with Febreze and Woolite. He also had Keefe scrub the floorboards, which had a rust-colored stain.

[¶ 9.] Brent Gromer, a special agent for the South Dakota Division of Criminal Investigation, was assigned to look into Klug’s disappearance. At that time, defendant had been identified as a suspect based on Agent Gromer’s interview with Beebe. On July 20, 2004, Agent Gromer and two other officers interviewed Tell Cook. Cook told them of seeing defendant and Kindall at his house, but repeatedly denied seeing anyone in a car trunk. He did admit, however, that defendant mentioned “going back to Rapid City and snatchin some guy and ... well you never know I might have already done it.... Could be in the trunk outside.... ” Cook also recalled that the name “Troy” was mentioned. The officers were not satisfied that Cook was revealing everything he knew. Agent Gromer made several strong comments to motivate Cook to be more cooperative. On July 22, Cook was again interviewed, but this time by two different law enforcement officers. He told them that Klug was over at Kindall’s house and defendant was using Klug to move things in the basement and they hit him and duct taped him. Cook was arrested on August 6, 2004, and placed in the Pennington County jail.

[¶ 10.] Agent Gromer and Special Agent John Griswold interviewed defendant in North Dakota on July 22, 2004. The next day, defendant was charged with kidnapping Klug. On August 4, he was indicted on one count of kidnapping and one count of conspiracy to commit kidnapping. Defendant was placed in the Pennington County jail, in a cell adjacent to Cook’s. While they were there, Cook had contact with defendant through a “kiting system” whereby an inmate would have letters or notes sent from one cell to another. Cook had written defendant and defendant wrote back. Defendant used the nickname “Chopper” when referring to Cook. Cook gave defendant the nickname “Mad Hatter.” Cook told his lawyer about the notes he obtained and that they contained incriminating information about defendant. Cook and his lawyer met with law enforcement officers on September 30, 2004. He decided to tell everything he knew, and a plea agreement was reached. Cook told the officers of seeing Klug in the trunk, recounted the statements defendant and Kindall made, and turned over some of the notes defendant had written.

[¶ 11.] After Cook made a plea agreement, Kindall and defendant remained to be tried together. Defendant moved to sever his trial from Kindall’s. The court granted the motion. Defendant also challenged the State’s intention to introduce Kindall’s out-of-court statements. She was not available to testify because she was found incompetent to stand trial. The State sought to introduce multiple statements made by Kindall to Beebe, Keefe, and Cook. It contended that the statements were not hearsay because they were made in furtherance of the conspiracy to kidnap Klug. The court examined each statement the State sought to introduce and addressed whether each met the requirements of SDCL 19-16-3(5). It ruled that some statements were admissible and some were not. The court then took under advisement whether the statements would, nevertheless, be inadmissible because Kindall was unavailable.

[¶ 12.] Defendant next challenged the State’s plan to introduce the jailhouse “kites” defendant sent to Cook. According to defendant, Cook obtained these notes in violation of his Sixth Amendment right to counsel because at the time Cook obtained information from defendant, he was represented by counsel. Cook, defendant argued, was acting as an agent of law enforcement and elicited the information at the direction of law enforcement officers. After a hearing, where Cook, the officers, and others testified, and certain transcripts of law enforcement interviews were admitted, the court found the “kites” admissible. It held that Cook was not acting as an agent for law enforcement: he wrote to defendant of his own volition and the investigating officers were not aware of Cook’s actions until after the fact.

[¶ 13.] Defendant’s trial began on June 20, 2005, 308 days after he was arraigned, and thirty-three days short of a year from when he was arrested. Kindall did not testify at his trial. But many of her statements, previously determined by the court to be admissible, were admitted over defendant’s objection. The “kites” were also admitted. Defendant was found guilty of kidnapping Klug and sentenced to 100 years in the penitentiary. He appeals asserting the following six issues: (1) his right to a speedy trial under the Sixth Amendment to the United States Constitution and Article VI, section 7 to the South Dakota Constitution was violated; (2) his Sixth Amendment right to counsel was violated when law enforcement used Cook to elicit information from defendant while defendant was represented by counsel and incarcerated; (3) the court erred when it admitted co-conspirator statements of Kin-dall under SDCL 19-16-3(5); (4) the court erred in finding that a conspiracy existed because Kindall was found incompetent to stand trial and one cannot have a conspiracy with someone that is incompetent; (5) he was denied his right to cross examine Kindall in violation of his right to confront witnesses; and (6) the court erred when it imposed a grossly disproportionate sentence by considering facts not part of the kidnapping charge.

Standard of Review

[¶ 14.] We apply a de novo standard of review to claims of constitutional violations. State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). Decisions on motions to suppress for violations of legal rights are also reviewed de novo. State v. Stevens, 2007 SD 54, ¶ 5, 734 N.W.2d 344, 346 (quoting State v. Hess, 2004 SD 60, ¶ 9, 680 N.W.2d 314, 319 (quoting State v. Herrmann, 2002 SD 119, ¶ 9, 652 N.W.2d 725, 728 (citations omitted))). Findings of fact, however, are reviewed under the clearly erroneous standard. Id. (citing State v. Tofani, 2006 SD 63, ¶ 24, 719 N.W.2d 391, 398). A claim that a sentence is grossly disproportionate is reviewed by the standards set out in State v. Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d 575, 580.

Analysis and Decision

1. Speedy Trial

[¶ 15.] Defendant contends that he was denied his right to a speedy trial under the United States and South Dakota constitutions. He is not arguing that our 180-day rule was violated. See SDCL 23A-44-5.1. Rather, he asserts that the delay in bringing him to trial occurred because the State was “slow on discovery,” on scientific testing, and on its overall investigation of the case. According to defendant, he was prejudiced because he was deprived of his freedom while incarcerated the entire time, and the State, by its delay, had more time to organize its case against him.

[¶ 16.] In examining whether a defendant’s constitutional right to a speedy trial was violated, we consider: “(1) the length of the delay; (2) the reason for the delay; (3) whether the accused asserted the right; and (4) whether the accused was prejudiced by the delay.” State v. Jones, 521 N.W.2d 662, 668 (S.D.1994) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972)). Delays of over a year are presumptively prejudicial; delays of less than a year are not. See State v. Karlen, 1999 SD 12, ¶¶ 20-21, 589 N.W.2d 594, 599; State v. Goodroad, 521 N.W.2d 433, 437 (S.D.1994); State v. Stock, 361 N.W.2d 280, 284 (S.D.1985); State v. Holiday, 335 N.W.2d 332, 334-35 (S.D.1983); State v. Krana, 272 N.W.2d 75, 77-78 (S.D.1978); State v. Black Feather, 249 N.W.2d 261, 264 (S.D.1976); State v. Pickering, 87 S.D. 331, 338, 207 N.W.2d 511, 515 (1973).

[¶ 17.] Defendant was arrested on July 23, 2004. His trial began on June 20, 2005. The delay falls thirty-three days short of a year, and therefore, it is not presumptively prejudicial. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Holiday, 335 N.W.2d at 334-35 (quoting Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d 101); see also Karlen, 1999 SD 12, ¶¶ 20-21, 589 N.W.2d at 599.

[¶ 18.] Although defendant alleges that he was prejudiced because the State had more time to build its case against him, he has not shown how his defense was prejudiced by the delay. That is the more important question. Indeed, he makes no claim that because of the delay a defense witness became unavailable or evidence was lost or degraded. See Jones, 521 N.W.2d at 669-70; Goodroad, 521 N.W.2d at 437; People v. Holtzer, 255 Mich.App. 478, 660 N.W.2d 405, 414 (Mich.Ct.App.2003) (“enhancement of the prosecution’s case” is not equal to “impairment of the defense”). His argument that he was prejudiced because he was incarcerated the entire time is unpersuasive. The right to a speedy trial is designed to protect a defendant from oppressive pretrial incarceration, but here his right to a speedy trial was not violated. See Jones, 521 N.W.2d at 669. Moreover, it would be unusual to find a constitutional violation when the 180-day rule has not been violated. See United States v. Titlbach, 339 F.3d 692, 699 (8th Cir.2003).

2. Incriminating Notes

[¶ 19.] Defendant argues that his right to counsel was violated when Cook obtained incriminating notes from him while they were in jail. According to defendant, Cook was acting as an agent for the State when he solicited defendant’s written responses at law enforcement direction. From defendant’s perspective, this arrangement began during the interview with Cook on July 20, 2004. Cook denied having seen Klug in the car trunk, and Agent Gromer strongly encouraged Cook to be more cooperative. For his part, Cook was concerned that he may be implicated in a crime and asked Gromer if he could “make it go away.” Agent Gromer said he could make no promises, but he could talk to the prosecutor and the judge. Gromer told Cook to “pound the pavement” and “do every God damn thing” he could to find defendant and Kindall.

[¶ 20.] When asked at the motion hearing whether Agent Gromer was enlisting Cook to be an informant, Gromer replied, “Yes, or help us. Not necessarily be an informant, but to help us gather intelligence as to where [defendant and Kindall] were at and possibly gather other information.” At that time, both defendant and Kindall were still suspects and had not been apprehended. Neither of them was then represented by counsel. Agent Gromer testified that his remarks— “pounding the pavement” and “doing every God damn thing” — were directed at motivating Cook to help locate defendant and Kindall.

[¶ 21.] Following this interview, Agent Gromer and Cook did not speak again until September 30, after Cook obtained the notes from defendant. It was in this meeting that Agent Gromer first learned that the notes even existed. At this meeting, which was videotaped, Agent Gromer and Cook made statements defendant now relies on to further his argument. Cook told Agent Gromer that he had been trying for seven weeks to finally get these letters from defendant. Apparently, there was a joking reference to the happenstance of defendant’s and Cook’s adjacent cells: Gromer made a comment about using “every trick in the book.” And Cook remarked that he was “playing cop.”

[¶ 22.] Several people testified at the suppression hearing, including Cook, Agent Gromer, Shawn Wood (a security lieutenant at the jail), and Cook’s attorney, Randy Connelly. The court also reviewed the transcripts from law enforcement interviews of Cook. Agent Gromer testified that he did not direct anyone at the jail to place defendant and Cook in adjacent cells. Nor did he tell Cook to elicit information from defendant while they were in jail. Cook testified that no one asked him to solicit incriminating responses from defendant and that he never considered himself to be an informant. He said that after his arraignment, which was held along with Kindall’s and defendant’s on August 16, he felt the impact the crime had when he saw one of Klug’s family members crying in court, and he then suggested his cooperation to his attorney.

[¶23.] The circuit court’s decision to deny defendant’s motion to suppress was largely based upon credibility determinations. The court concluded that Cook made a personal decision to elicit the information, evidenced by the fact that he chose to keep some of the notes and throw others away. It also found that Agent Gromer did not recruit Cook to be an agent for law enforcement. No agreement existed, according to the court. It found that, despite Agent Gromer’s “quip,” law enforcement officers did not direct that defendant and Cook be housed adjacent to each other. Accordingly, the court ruled that defendant’s constitutional rights were not violated and denied his motion to suppress.

[¶ 24.] While failing to establish an explicit law enforcement agreement with Cook, defendant contends nonetheless that an agreement was implicit in the conduct between Cook and law enforcement officers. Defendant argues that because it is rare that a defendant will have direct proof of efforts to elicit information from an accused with counsel, the evidence need only establish that law enforcement officers must have known they were “circumventing the accused’s right to have counsel present[J” See Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985). Thus, defendant claims that based on the statements made to Cook, the State “must have known” that Cook would obtain information from defendant while he was incarcerated. See id.

[¶ 25.] There was nothing in Agent Gromer’s statements to Cook at the July 20th meeting that proves that the State knew or should have known that Cook would try to obtain information from defendant, while defendant was incarcerated and represented by an attorney. Agent Gromer’s comments were made when defendant was still at large and only a suspect. The circuit court found that there was no explicit or implicit agreement to have Cook prod defendant for admissions. A court’s findings of fact from a suppression hearing are reviewed under the clearly erroneous standard of review. State v. Lockstedt, 2005 SD 47, ¶ 14, 695 N.W.2d 718, 722 (citing State v. Guthrie, 2001 SD 61, ¶ 56, 627 N.W.2d 401, 423 (citation omitted); SDCL 23A-32-9). “As long as the police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the fifth or sixth amendments.” United States v. Surridge, 687 F.2d 250, 255 (8th Cir.1982). Because we give deference to the trial court’s findings of fact and particularly to credibility determinations, we conclude that the decision was not erroneous.

3. Admission of Co-Conspirator Statements

[¶ 26.] Defendant argues that the court erred when it admitted Kindall’s out-of-court statements under SDCL 19-16-3(5). That rule provides, in part,

A statement is not hearsay if it is offered against a party and is:
(5) A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

Id. According to defendant, the statements should not have been admitted because they were not made in furtherance of the conspiracy.

[¶ 27.] Before a co-conspirator’s out-of-court statement may be admitted in evidence, (1) “there must be substantial evidence of conspiracy;” (2) “the statement must have been made while the conspiracy was continuing; and” (3) “the statement must have constituted a step in furtherance of the conspiracy.” State v. Stavig, 416 N.W.2d 39, 41 (S.D.1987) (citing State v. Smith) 353 N.W.2d 338 (S.D.1984)) (additional citation omitted). “To satisfy the test of admissibility, there need only be a showing that there is some reasonable basis for concluding that the statement was made in furtherance of [the] conspiracy.” Id. (citing Smith, 353 N.W.2d at 343). A court’s decision to admit the statements under SDCL 19 — 16— 3(5) is reviewed under the clearly erroneous standard. See United States v. Beckman, 222 F.3d 512, 523 (8th Cir.2000) (citing United States v. Oseby, 148 F.3d 1016, 1023 (8th Cir.1998)).

[¶ 28.] In a pretrial motions hearing, the court addressed the admissibility of Kindall’s out-of-court statements that the State sought to use. The court found substantial evidence of a conspiracy and that the statements were made while the conspiracy was continuing. The crux of defendant’s argument was that the statements were not made in furtherance of the conspiracy, and were, therefore, inadmissible. The court examined each statement challenged by defendant and made a specific finding on whether it satisfied SDCL 19-16-3(5). At trial not all the statements previously found to be admissible by the court were offered. Therefore, we examine only those statements used in trial.

[¶ 29.] First statement as offered at the motions hearing: “Kindall just laughed and was real jovial about it in calling him [Klug] a puss and that he was weak.” According to the court, this statement was made in furtherance of the conspiracy because it was made to induce defendant’s continued participation in the ongoing crime. The above-quoted statement was not specifically used at trial. Instead, it was testified that Kindall “thought he [Klug] was weak and she was really hung up about her money.” On appeal, defendant contends that the statement was inadmissible because it was merely Kindall bragging, which does not further the conspiracy. For the statement to be admissible there need only be a reasonable basis that it was made in furtherance of the conspiracy. Smith, 353 N.W.2d at 343. We think that it was reasonable to conclude that Kindall made this statement to enlist Cook to join the conspiracy or to keep defendant in on it.

[¶ 30.] Second statement as offered at the motions hearing: “She said that he owed them money from drug transactions that have occurred in the— prior to that night.” The statement that was ultimately used at trial was that “they [defendant and Kindall] started talking about—going on about a guy in Rapid City that they kneiu had owed them money.... They said that the kid owed them money.” According to the court, the first statement was admissible because it “explained the nature of the conspiracy to kidnap Klug and collect the drug debt.” Explaining the nature of the conspiracy, however, does not provide a reasonable basis for concluding that the statement was made in jfurtherance of the conspiracy. This statement, while made when the conspiracy was continuing, was not made (1) to enlist someone to join the conspiracy; (2) to advance the aims of the conspiracy; (3) to allay suspicion; or (4) as a narrative statement by one conspirator to another about what each had done. See Smith, 353 N.W.2d at 343-44 (citing United States v. Handy, 668 F.2d 407, 408 (8th Cir.1982); United States v. Miller, 664 F.2d 94, 98 (5th Cir.1981); United States v. James, 510 F.2d 546, 549 (5th Cir.1975); United States v. Overshon, 494 F.2d 894, 898-99 (8th Cir.1974); United States v. Hatpin, 374 F.2d 493, 495-96 (7th Cir.1967)). The court erred in admitting this statement.

[¶ 31.] Third statement as offered at the motions hearing: “When they came in the house, they were—when we first started talking, they were upset about [Klug] being a snitch and they wanted to tattoo the name ‘cop caller’ around his neck.” At trial, Cook stated that “they” were calling him a “snitch and a rat.... They asked me if I knew any tattooist because they wanted to get this guy [Klug] tattooed ‘cop caller’ around his neck.” The court concluded that the statement was admissible because it was made to “induce [defendant’s] continued participation in the conspiracy- The statement was made to remind [defendant] that Klug gave information to police and to entice [defendant] to carry out the plan.” We think it was a reasonable conclusion that the statement was made by Kindall to enlist defendant’s continued participation in the conspiracy.

[¶ 32.] Fourth statement as offered at the motions hearing: “Well, isn’t it [King’s]? ... Well, then it’s ours now.” At trial, Beebe testified that Kin-dall said, “Well, if it’s [King’s], it’s ours now.” According to the court, the statement was made in furtherance of the conspiracy because it was made to “explain Kindall’s belief that she was entitled to Klug’s property to settle a drug debt.” This conclusion seems strained because it does not establish how the statement was made to further the conspiracy. It was not made to entice Beebe to join the conspiracy; nor was it made to keep defendant enlisted. It neither was made to allay Beebe’s suspicions, nor as a narrative statement to defendant about what she had done. See Smith, 353 N.W.2d at 343-44 (citations omitted). On the other hand, it might be considered a statement in furtherance of the conspiracy because it suggests that Kindall and defendant were still in the process of collecting on the debt Klug allegedly owed. We cannot conclude that admitting this statement was clearly erroneous.

[¶ 33.] Fifth statement as offered at the motions hearing: “She [Kindall] said that he did come there [Kindall’s house], that she sent him away, and told him to leave, and that she hadn’t seen him since.... And she said that [Klug] would no longer be a problem for her. And she’s like, isn’t that right, Tory? And Tory’s like, ‘yeah, we have that taken care of’ ” At trial, Beebe stated that Kin-dall said, “Well, he [Kkug] came to my house, but you know, I sent him away. I told him to leave.... They [defendant and Kindall] said he was no longer a problem for them. That it was taken care of.” Beebe also testified that Kindall said, “Isn’t that right Tory ?”, to which defendant responded, “Yes.” The court found Beebe’s statements to be in furtherance of the conspiracy because it was intended to “calm Beebe’s fears about Klug.” Statements made to “allay suspicion” are admissible; therefore, the statements were not admitted in error. See Smith, 353 N.W.2d at 343-44 (citations omitted).

[¶ 34.] Sixth statement as offered at the motions hearing: “Oh, honey, no, it’s okay. Don’t worry about it. Just come on, get up. I need you to come with me.... Honey, I’m going to go away to a cabin for a little while. I need you to come with me.... Well, if anything happens or if you get any worse or anything ....” At trial, Beebe claimed that Kindall said, “Honey, I need you to come with me. I got to go away for awhile and I need you to go with me.... I’m going away to a cabin.... I need you to come with me.” Beebe then testified that defendant said, “We don’t have time for this. We got to go.... Just leave her. She’s not worth it. We got to go.” The court found the statements to be admissible because “they were made in an effort to further the conspiracy or conceal its existence^]” According to the court, “[t]here is a reasonable basis to believe that [defendant] and Kindall intended to take Beebe with them as part of their efforts to conceal the crime.” It is reasonable to conclude that the statements were made in an effort to allay Beebe’s suspicions, conceal the crime, or enlist her in the conspiracy. See Smith, 353 N.W.2d at 343-44 (citations omitted). The court did not err in finding the statements admissible.

[¶ 35.] Seventh statement as offered at the motions hearing: “Yeah, I washed it in cold water.” This was Kin-dall’s response to defendant’s question about washing clothes when they were in North Dakota, a statement that Keefe overheard and testified to. The circuit court concluded that the statement was admissible because it was made in an effort to conceal the evidence of the crime. It is reasonable to deduce that this statement was made to further the conspiracy, which was to kidnap Klug and take him out of their lives forever. Cleaning up the evidence furthers that goal.

[¶36.] Eighth statement as offered at the motions hearing: “She said that it should have been cleaned five days ago” Keefe also testified to this statement, and the court found it admissible because it was made in an effort to conceal the crime. This statement, however, is a narrative statement about what should have been done in the past. Yet the statement was made during the process of cleaning up evidence of the crime, and suggests continuation of the conspiracy. We cannot say that it was clearly erroneous to admit this statement.

[¶ 37.] Even if some of the statements defendant challenges should not have been admitted, he has not alleged nor shown how he was prejudiced by these admissions. He simply claims that they were inadmissible and we should reverse and grant a new trial. Not every error requires reversal. “[I]f the State shows beyond a reasonable doubt that the error was not prejudicial” it is considered harmless. Stanga, 2000 SD 129, ¶ 20, 617 N.W.2d at 491 (citations omitted).

[¶ 38.] Even without these statements, there is overwhelming evidence supporting the verdict. Cook testified that defendant took him to the trunk of Kindall’s vehicle and showed him Klug inside. Klug’s legs and hands were bound with duct tape, and defendant punched Klug in the back, yelling, “wake up mother fucker.” Cook then testified that the next day he asked defendant what happened to the person in the trunk, to which defendant responded that he put him in a toolbox and left him there all day. That day was extremely hot and Cook asked defendant if Klug was given water. Defendant responded that he was not, and that it would have been too late anyway. There was also DNA evidence strongly tending to prove that Klug was in fact in Kindall’s trunk.

[¶ 39.] Finally, there were the jailhouse notes written by defendant to Cook. In the notes, defendant stated, “Oh Yeah, even if they do find some so called physical evidence, where the hell are they going to get there [sic] DNA to compair [sic] it to? ... And Believe Me they ain’t gonna find No body unless some one else planted somebody. It may have taken me a while to decide what to do but once I figured it out, it was the best plan, and I executed it with ‘grinding’ precision! Don’t worry about them finding a body.” In a subsequent letter, defendant stated, “Yeah, You know that was one of the nastiest things I have ever done .... one of the Nastiest. If a guys gonna make fish food he just as well put it in bite size pieces Right! What the hell it wasn’t my first rodeo and I’m sure it won’t be my last if I stay in the business I’ve been in.” Considering the overwhelming evidence of guilt against defendant, we conclude that- Kindall’s out-of-court statements, even if admitted in error, were not prejudicial.

4. Admitting Statements of Incompetent Co-Conspirator

[¶ 40.] According to defendant, because Kindall was found incompetent to stand trial, her out-of-court statements should not have been admitted against him under SDCL 19-16-3(5) because one cannot conspire with an incompetent person. Defendant has not directed this Court to any authority to support his proposition that when one is found incompetent to stand trial, that person was incapable of earlier conspiring to commit a crime. Rather, he argues that because Kindall was found incompetent to stand trial, based on mental conditions she obviously suffered from for a while, she must also have been incapable of entering into the criminal agreement required in this case.

[¶ 41.] Kindall was found incompetent to stand trial by the circuit court. Although Kindall had a history of brain injury and mental illness, nothing in the circuit court’s findings declaring Kindall incompetent to stand trial would suggest that she was insane at the time she conspired with defendant. Indeed, Kindall’s sanity at the time she entered into the criminal agreement with defendant to kidnap Klug has not been raised. “Incompetency to stand trial and incapacity to commit a crime because of insanity are, of course, distinct and separate issues.” State v. Jones, 406 N.W.2d 366, 369 (S.D.1987); see also State v. Rough Surface, 440 N.W.2d 746, 757 (S.D.1989). Defendant cites no authority for the proposition that a person found incompetent to stand trial cannot be considered a responsible criminal conspirator at an earlier occasion. Defendant’s argument on this question is meritless.

5. Defendant’s Right to Confront and Cross-Examine Witnesses

[¶ 42.] Defendant claims that because Kindall was not available to testify at trial, the court erred when it admitted her out-of-court statements. Defendant raised this issue with the circuit court at the December 21, 2004 motion hearing. The court took the issue under advisement and never entered an oral or written ruling on the motion. Defendant failed to raise the issue again. At oral argument, however, appellate counsel insisted that because a general objection was made to Kindall’s statements and the trial court prohibited “speaking objections,” the general objection was adequate to preserve the question for appeal. Ordinarily, this would not be sufficient to avoid waiver of the issue. See Hays, 1999 SD 89, ¶ 16, 598 N.W.2d at 203.

[¶ 43.] Nevertheless, because of the importance of this question, we exercise our discretion to consider it. In Crawford v. Washington, the United States Supreme Court ruled that the Confrontation Clause applies to “witnesses,” “those who bear testimony.” 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004). In that light, the Court stated that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. Therefore, the Confrontation Clause implicates a “core class” of testimonial statements:

“ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” ... “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,”....

Id. at 51-52, 541 U.S. 36, 124 S.Ct. at 1364, 158 L.Ed.2d 177.

[¶ 44.] Although there are exceptions to the hearsay rule, the Court recognized that historically “there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case.” Id. at 55-56, 541 U.S. 36, 124 S.Ct. at 1367, 158 L.Ed.2d 177. Nevertheless, the Court concluded that not considered as “testimonial” statements were those made in furtherance of a conspiracy. Id. at 56, 541 U.S. 36, 124 S.Ct. at 1367, 158 L.Ed.2d 177 (“Most of the hearsay exceptions covered statements that by their nature were not testimonial-for example, business records or statements in furtherance of a conspiracy.”).

[¶ 45.] In United States v. Inadi, 475 U.S. 387, 394-96, 106 S.Ct. 1121, 1125-26, 89 L.Ed.2d 390 (1986), the Supreme Court first recognized that statements made by a co-conspirator in furtherance of a conspiracy are not testimonial, and therefore, are admissible even when the declarant is unavailable. Specifically, the Court stated, “There are good reasons why the unavailability rule, developed in cases involving former testimony, is not applicable to co-conspirators’ out-of-court statements.” Id.

Because [the statements] are made while the conspiracy is in progress, such statements provide evidence of the conspiracy’s context that cannot be replicated, even if the declarant testifies to the same matters in court. When the Government — as here — offers the statement of one drug dealer to another in furtherance of an illegal conspiracy, the statement often will derive its significance from the circumstances in which it was made. Conspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the witness stand. Even when the declarant takes the stand, his in-court testimony seldom will reproduce a significant portion of the evidentiary value of his statements during the course of the conspiracy....
The declarant himself may be facing indictment or trial, in which case he has little incentive to aid the prosecution, and yet will be equally wary of coming to the aid of his former partners in crime. In that situation, it is extremely unlikely that in-court testimony will recapture the evidentiary significance of statements made when the conspiracy was operating in full force.

Id. at 395, 475 U.S. 387, 106 S.Ct. at 1126, 89 L.Ed.2d 390. Since Crawford, multiple courts have recognized that statements made in furtherance of a conspiracy are not testimonial. United States v. Ramirez, 479 F.3d 1229, 1249 (10th Cir.2007) (citing Crawford, 541 U.S. at 56, 124 S.Ct. at 1367, 158 L.Ed.2d 177); United States v. Sullivan, 455 F.3d 248, 258 (4th Cir.2006) (citation omitted); United States v. Allen, 425 F.3d 1231, 1235 (9th Cir.2005) (citation omitted); United States v. Lee, 374 F.3d 637, 644 (8th Cir.2004).

[¶ 46.] Here, although Kindall was unavailable, defendant’s Sixth Amendment rights were not violated when her statements were admitted at trial. Kindall was a co-conspirator and her statements were not testimonial. They were made in furtherance of the conspiracy. Therefore, we find no error.

6. Defendant’s Sentence

[¶ 47.] Defendant contends that his sentence of 100 years is grossly disproportionate to the crime of kidnapping, because the court considered the uncharged crime of murder. According to defendant, because the court expressed that defendant likely killed Klug and destroyed the body, the court went beyond the scope permitted in sentencing for a kidnapping conviction. Defendant cites no authority prohibiting a court from considering uncharged conduct, or the probable consequences of defendant’s acts. A court is permitted to consider uncharged conduct when acquainting itself with the character of the defendant for sentencing. McKinney, 2005 SD 74, ¶ 17, 699 N.W.2d at 465-66; see also State v. McCrary, 2004 SD 18, ¶ 8, 676 N.W.2d 116, 120; State v. Arabie, 2003 SD 57, ¶21, 663 N.W.2d 250, 257.

[¶ 48.] We find nothing in the record to suggest that defendant’s sentence was grossly disproportionate. It is within the statutory maximum of life imprisonment. See SDCL 22-19-1(3); see also Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d at 580.

[¶ 49.] Affirmed.

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

      . The State dismissed the conspiracy charge on May 12, 2005.

      . Cook pleaded guilty to misprision of a felony for his failure to contact law enforcement authorities when he observed a felony taking place.

      . If this were an appeal on the 180-day rule, no violation presents itself. Trial counsel conceded during a motions hearing that the period from September 27 through December 31, 2004, “would be held against the defense” in computing the 180-day rule. Indeed, the trial court found that in the time frame from September 27, 2004, through May 16, 2005, 261 days were properly excludable under the 180-day rule. Appellate counsel was not trial counsel.

      . The Státe referred to a statement during its opening remarks that was not later offered during the trial. However, because the court informed the jury that opening remarks are not evidence, we need not examine the statement.

      . The State contends that even if we find certain statements were admitted in error we should examine them for admissibility under SDCL 19-16-3(1), defendant’s own statements. The State did not raise this argument below. Because the circuit court did not have an opportunity to rule on the admissibility of the statements under that subsection, this Court will not address the argument. See State v. Hays, 1999 SD 89, ¶ 16, 598 N.W.2d 200, 203.

      . As stated in McCormick on Evidence, § 267 at 645 (2d ed.):
      Literally applied, the "in furtherance” requirement calls for general exclusion of statements possessing evidential value solely as admissions, yet in fact more emphasis seems to be placed upon the "during continuation” aspect and any statements so qualifying in point of time may be admitted in evidence without such regard to whether it in fact furthers the conspiracy.... Both the "in furtherance” and the "during continuation” requirement call for exclusion of admissions and confessions made after the termination of the conspiracy. Questions arise, of course, as to when termination occurs. Under certain circumstances, extending the duration of the conspiracy beyond the commission of the principal crime to include concomitant and closely connected disposition of its fruits or concealment of its traces appears justifiable, as in the case of police officers who engage in writing up a false report to conceal police participation in a burglary or disposal of the body after a murder.

      . This Court takes judicial notice of Pennington County criminal file number 04-3272, in which it is recorded that Kindall has since been found competent to stand trial.

      . In its oral sentence the court stated:
      In this case, the [c]ourt has looked at a number of factors including the gravity of the offense. This [c]ourt presided over the trial and listened to and evaluated the credibility and the demeanor of each and every one of the witnesses that testified. The [cjourt has considered the effect of this crime of kidnapping on the victim, Troy Klug, and Troy's family. The evidence establishes that Troy was bound, beaten, detained in the trunk of a car in sweltering heat, duct taped. That he was then transferred to a toolbox where he was intermittently beaten until his death. He suffered terror, loneliness, misery and death. His body was destroyed and concealed. He was denied a burial....
      In analyzing this rehabilitation factor, the Supreme Court has said that a defendant's remorse and his prospect for rehabilitation are proper considerations in sentencing. After exercising your right to a trial, a defendant's continued refusal to take accountability may be considered as a sign of a lack of remorse.... In your statement to the [cjourt you told the [cjourt, "yes, I should take responsibility” and you told the [cjourt you used methamphetamine. Beyond that you did not take responsibility for the crime. Now the [cjourt considers as perhaps one of the reasons is the fact that further criminal charges for murder or manslaughter could be brought against you. The [cjourt considers that as a possible explanation. Nevertheless, your decision to not accept responsibility, not to disclose the location of the body is a factor that can and is considered — can be and is considered by this [cjourt....
      Your conduct thus far indicates to the [cjourt that your plan for rehabilitation is to persist in your denial, bully others while in prison and keep secret the location of Troy's body, continuing to conceal your involvement in this crime... .
      The jury found that you kidnapped Troy Klug. The legislature imposed wide discretion for trial courts in sentencing and the reason for that is there are different kinds of kidnapping. In this kidnapping the victim was placed at enormous risk and all the evidence establishes, suffered a horrible death at your hands.


text:
    2008 SD 5
    In the Matter of OTTER TAIL POWER COMPANY on Behalf of BIG STONE II co-Owners for an Energy Conversion Facility Permit for the Construction of the Big Stone II Project.
    No. 24485.
    Supreme Court of South Dakota.
    Argued on Nov. 7, 2007.
    Decided Jan. 16, 2008.

      Janette K. Brimmer of Minnesota Center for Environmental Advocacy St. Paul, Minnesota, John H. Davidson, Vermillion, South Dakota, Attorneys for appellants Fresh Energy, Izaak Walton League of America-Midwest Office, Union of Concerned Scientists & Minnesota Center for Environmental Advocacy.
    Thomas J. Welk, Christopher W. Mad-sen of Boyce, Greenfield, Pashby & Welk Sioux Falls, South Dakota, Attorneys for appellee Big Stone II Co-Owners.
    John J. Smith, Assistant Attorney General, SD Public Utilities Commission, Pierre, South Dakota, Attorneys for appel-lee SD Public Utilities Commission.
   KONENKAMP, Justice.

[¶ 1.] Otter Tail Power Company, on behalf of several utilities, applied for a permit to construct Big Stone II, a coal-fired energy conversion facility. Certain non-profit environmental organizations intervened to oppose the application. They asserted that the carbon dioxide (C02) emissions from Big Stone II would contribute to global warming, thereby posing a threat of serious environmental injury. The South Dakota Public Utilities Commission (PUC) concluded that although the facility will emit C02, the amount will not pose a threat of serious injury to the environment. It found that C02 emissions are not currently regulated by Congress or South Dakota and that Big Stone II would only increase the national amount of emissions by seven hundredths of one percent. Because the PUC followed existing legal guidelines in approving the permit, and its findings were not clearly erroneous, we uphold its decision.

Background

[¶ 2.] The South Dakota Legislature acknowledged the significant impact energy development has on “the welfare of the population, the environmental quality, the location and growth of industry, and the use of the natural resources of the state.” SDCL 49-^41 B-l. It enacted legislation to “ensure that [energy conversion and transmission] facilities are constructed in an orderly and timely manner so that the energy requirements of the people of the state are fulfilled.” Id. The Legislature deemed it “necessary to ensure that the location, construction, and operation of facilities will produce minimal adverse effects on the environment and upon the citizens of this state by providing that a facility may not be constructed or operated in this state without first obtaining a permit from the [PUC].” Id; SDCL 49-41B-4.

[¶ 3.] A permit application must include:

(1) The name and address of the applicant;
(2) Description of the nature and location of the facility;
(3) Estimated date of commencement of construction and duration of construction;
(4) Estimated number of employees employed at the site of the facility during the construction phase and during the operating life of the facility. Estimates shall include the number of employees who are to be utilized but who do not currently reside within the area to be affected by the facility;
(5) Future additions and modifications to the facility which the applicant may wish to be approved in the permit;
(6) A statement of the reasons for the selection of the proposed location;
(7) Person owning the proposed facility and person managing the proposed facility;
(8) The purpose of the facility;
(9) Estimated consumer demand and estimated future energy needs of those consumers to be directly served by the facility;
(10) The potential short and long range demands on any estimated tax revenues generated by the facility for the extension or expansion of public services within the affected areas;
(11) Environmental studies prepared relative to the facility;
(12) Estimated construction cost of the facility.

SDCL 49-41B-11.

[¶4.] After a request for a permit is filed, the PUC must enlist a local review committee, which “shall meet to assess the extent of the potential social and economic effect to be generated by the proposed facility, to assess the affected area’s capacity to absorb those effects at various stages of construction, and formulate mitigation measures.” SDCL 49-41B-7. This committee issues a final report to the PUC with its findings and “recommendations of the committee as to mitigation measures and minority reports.” SDCL 49-41B-10. The PUC may also “prepare or require the preparation of an environmental impact statement[.]” SDCL 49-41B-21. An applicant is required “to establish that: (1) The proposed facility will comply with all applicable laws and rules; (2) The facility will not pose a threat of serious injury to the environment nor to the social and economic condition of inhabitants or expected inhabitants in the siting area; (3) The facility will not substantially impair the health, safety or welfare of the inhabitants; and (4) The facility will not unduly interfere with the orderly development of the region with due consideration having been given the views of governing bodies of affected local units of government.” SDCL 49-41B-22.

[¶ 5.] On November 8, 2004, in accord with SDCL 49-41B-5, the Otter Tail Corporation, doing business as Otter Tail Power Company, submitted a proposal to the PUC for permission to construct an energy conversion facility. Otter Tail submitted the proposal on behalf of Central Minnesota Municipal Power Agency, Great River Energy, Heartland Consumers Power District, Montana-Dakota Utilities Company, a division of MDU Resources Group, Inc., Southern Minnesota Municipal Power Agency, and Western Minnesota Municipal Power Agency (Applicants). As proposed, the facility would be a 600 megawatt (MW) coal-fired electric generating plant to be located in Grant County, South Dakota, east of Milbank and Northwest of Big Stone. The facility would be named Big Stone II and be situated next to an older facility, Big Stone I.

[¶ 6.] Several organizations sought to intervene: Clean Water Action; South Dakota Chapter Sierra Club; Union of Concerned Scientists; Mary Jo Stueve; Minnesotans for an Energy-Efficient Economy; Izaak Walton League of America, Midwest Office; and Minnesota Center for Environmental Advocacy (In-tervenors). The Intervenors opposed the application on multiple grounds related to the environmental impact of Big Stone II.

The PUC granted intervention to all parties.

[¶ 7.] The Applicants’ petition to the PUC triggered SDCL 49-41B-6, and a local review committee was established to prepare a social and economic assessment of Big Stone II. The assessment (1) examined the potential impacts of Big Stone II; (2) addressed the area’s ability to absorb those impacts; (3) identified a list of actions needed to ensure a smooth project; and (4) prepared a list of recommended mitigation measures. The committee’s findings relate to issues not implicated in this appeal, and therefore, will not be discussed.

[¶ 8.] An environmental impact statement was also prepared. Among many other things, the impact statement assessed the air quality effects of Big Stone II. In so doing, the statement first identified the applicable regulations, stating

The Clean Air Act, and its amendments (CAA), requires the Federal U.S. Environmental Protection Agency (USEPA) to set National Ambient Air Quality Standard (NAAQS) for pollutants considered harmful to public health and the environment.... The USEPA Office of Air Quality Planning and Standards has set NAAQS for six principal pollutants, which are called “criteria” pollutants.

Draft Environmental Impact Statement May 2006 at 3-1, 3-2. The statement also recognized applicable regulations from Prevention of Significant Deterioration (PSD), New Source Performance Standards (NSPS), Best Available Control Technology (BACT), and the Clean Air Mercury Rule (CAMR). Id. at 4-2.

[¶ 9.] Although C02 is not regulated, the statement recognized that Big Stone II was estimated to emit approximately 4.7 million tons of C02 per year. It remarked, however, that “[projected emissions of all hazardous air pollutants from the existing and proposed plants would be reduced by approximately 41 [million] tons/year (from approximately 63 [million] tons/year by the existing plant to approximately 22 [million] tons/year by the combined existing and proposed plant operations).” Id. at ES-18. Moreover, the statement noted that “[t]he proposed super-critical combustion technology for the proposed Project is three-to-four percent more efficient, and would result in lower C02 emissions per MWh [megawatt hours] of electrical energy output as compared to the sub-critical boiler technology.” Id. at 4-11.

[¶ 10.] The statement summarized the air quality effects of Big Stone II:

Overall, no air quality impacts exceed significance criteria for air resources. The long-term impacts from the proposed Project for NAAQS and PSD increment would be less than significant. The Grant County, South Dakota area is in attainment or is unclassifiable for all criteria pollutants. Emissions from the proposed project would not conflict with or obstruct implementation of any applicable air quality plan. Since the increase in criteria pollutant emissions would either be less than the PSD significance levels or well within the NAAQS and PSD increments, the proposed Project long-term and short-term emissions impacts on distant air quality areas that are not in compliance with NAAQS is unlikely. In addition, visibility impacts to Class I and Class II areas would be less than significant....

Id. at 4-13. Nevertheless, according to the statement, “[t]he proposed Big Stone II plant would generate unavoidable emissions of air pollutants that would be an adverse impact.” Id. at 5-1. This was determined notwithstanding that Big Stone II “would operate under [an] appropriate air emission permit from the state of South Dakota that requires operation of the plant under regulatory limits.... Even with the permit requirements and air emission control equipment, these impacts would be adverse and unavoidable.” Id.

[¶ 11.] In accord with SDCL 49-41B-16, the PUC is required to hold a public hearing near the proposed facility’s location. Two public hearings were held. At the first hearing, fifteen people provided testimony. At the second hearing, twenty people attended, with twelve giving testimony. In addition to the public hearings, the Applicants, Intervenors, and the PUC exchanged substantial written discovery, with the Applicants answering more than 500 discovery requests and making available more than 47,000 pages of documents. All parties submitted pre-filed testimony and a formal evidentiary hearing was held on June 26-29, 2006. Oral argument was heard by the PUC on July 11, 2006.

[¶ 12.] Through their testimony, the Applicants asserted that Big Stone II would provide the energy necessary to serve consumers in South Dakota, North Dakota, Minnesota, Iowa, Montana, and Wisconsin. Big Stone II is projected to produce 4.6 million MW hours of electricity per year. The estimated cost to construct Big Stone II is $1 billion in 2011 dollars. The Applicants claimed that if construction of Big Stone II was delayed or prohibited, the member companies would not be able to generate sufficient energy, which would affect the reliability of their systems and harm consumers.

[¶ 13.] The Intervenors opposed construction of Big Stone II. They asserted that Big Stone II would pose a threat of serious injury to the environment under SDCL 49-41B-22 and should not be constructed. The threat of serious injury, the Intervenors alleged, would be caused by the amount of C02 Big Stone II would emit. These emissions, according to the Intervenors, would contribute to global warming, which they contend seriously harms the environment.

[¶ 14.] To support their contention that global warming harms the environment and C02 emissions contribute to global warming, the Intervenors submitted expert testimony from Dr. Ezra Hausman. Dr. Hausman is employed with Synapse Energy Economic, Inc., a company specializing in energy and environmental concerns. Dr. Hausman holds a Ph.D. in Atmospheric Science from Harvard University, a master’s degree in Applied Physics from Harvard, and a master’s degree in Water Resource Engineering from Tufts University.

[¶ 15.] Dr. Hausman testified that “[h]uman induced climate change is a grave and increasing threat to the environment and to human societies around the globe.” According to Dr. Hausman, an increase in many greenhouse gases has caused a 0.6° C increase in global temperature in the twentieth century. More notably, he opined, “This means that the planet as a whole does not lose heat to space as efficiently as it otherwise would, so the system as a whole is warming up. This is the phenomenon commonly referred to as ‘global warming.’ ”

[¶ 16.] According to Dr. Hausman, the increase in global temperature “has come primarily from the burning of fossil fuels (coal, oil, and natural gas), and also from changes in land use such as deforestation.” Of the fossil fuels, he stated that “coal emits the most C02 per unit of energy obtained.” Dr. Hausman said that “[t]here is an unequivocal scientific consensus on many aspects of the issue of global climate change.” Specifically, according to Dr. Hausman, there is a consensus that:

(1) “the C02 content of the atmosphere is increasing rapidly;”
(2) “this rate of increase, and resulting abundance of C02 in the atmosphere, is unprecedented in at least the past 200,-000 years and probably much longer;”
(3) “the primary source of the increase is the combustion of fossil fuels by human industrialized societies, i.e., that is the anthropogenic C02;”
(4) “the increased abundance of C02 has a direct radiative forcing effect on climate by altering the heat transfer characteristics of the atmosphere;”
(5) “this change in the heat transfer properties of the atmosphere will have an impact on the climate of the planet;”
(6) “the climate of the earth is currently changing in ways that are consistent with model predictions based on the increased radiative forcing due to the anthropogenic increase in the atmospheric C02[;]”
(7) “the magnitude of climate impacts will increase with increasing atmospheric C02 content;” and
(8) “once the atmospheric abundance of C02 has been increased, it will only return to equilibrium levels through natural processes on a timescale of several centuries.”

[¶ 17.] In regard to coal-fired power plants in general, Dr. Hausman testified that the ones “in the United States already emit almost one-third of the U.S. emissions, or 8% of all the world’s anthropogenic C02 into the atmosphere, a staggering contribution to the global buildup of greenhouse gases.” Moreover, he testified that because “base load coal plants in the United States are built to produce electricity for decades, as long as 70 years in the case of some of the older plants still operating today”, the threat to the environment “is becoming increasingly obvious and severe.”

[¶ 18.] With respect to Big Stone II, Dr. Hausman testified that it would “add over 4.5 million tons of C02 to the atmosphere every year of its operational life, inexorably and significantly contributing to the buildup of greenhouse gases in the atmosphere.” This amount represents a 34% increase in South Dakota’s emission record from the EPA in 2001. Further, he said that “[a]t 4.5 million tons per year, emissions from Big Stone II would be equivalent to emissions from almost 670,-000 cars.” The emissions from Big Stone II, Dr. Hausman explained, “would cause irreversible damage to the environment, especially considering its expected lifetime of 50 years or more and the slow recovery time for atmospheric C02.” He stated, “Human societies and ecosystems will find themselves poorly adapted to their local climate and this will result in disruption of ecosystems!.]” He also predicted that the warming in a region like South Dakota will cause increased temperatures in the summer, resulting in more droughts and reduced crop yields.

[¶ 19.] He concluded that the emissions from Big Stone II will cause “a significant and irreversible impact on the environment, both globally and in South Dakota.... My opinion is that this facility will have a cumulative effect, in combination with other operating energy conversion facilities, both existing and under construction, of causing the level of atmospheric carbon dioxide to be significantly elevated relative to what it would be without this plant.... In my opinion, the environmental effects of this facility will pose a threat of serious injury to the environment in South Dakota and in the broader region.”

[¶ 20.] In response to Dr. Hausman’s testimony, the Applicants presented the rebuttal testimony of Ward Uggerud, Otter Tail’s senior vice-president. Uggerud testified that Dr. Hausman’s opinion that Big Stone II will have a significant adverse impact on South Dakota “lacks perspective, to say the least.” Although he conceded that “Big Stone II will emit approximately 4.7 million short tons of carbon dioxide per year,” Uggerud explained:

The Energy Information Administration (EIA) reports that U.S. anthropogenic carbon dioxide emissions for 2010 are projected to be 6,365 million metric tons.... This means that Big Stone II’s share of total U.S. anthropogenic carbon dioxide emissions in 2010 (assuming the plant came on line then) would be 0.0007 (0.07%, or seven hundredths of one percent). According to EIA, global anthropogenic C02 emissions in 2010 will be 30,005 million metric tons. Big Stone II’s share of this amount will be 0.00014 (0.014% or less than two one-hundredths of one percent).

Moreover, Uggerud asserted that “[c]ar-bon dioxide is not the only greenhouse gas. Other gasses, such as methane and water vapor, also trap heat in the atmosphere. Water vapor is by far the most dominant greenhouse gas.” He thought, therefore, that “the evidence is simply insufficient to conclude that C02 emissions associated with the proposed Big Stone II will cause [a] ‘costly adverse impact on the environment both in South Dakota and throughout the region, the continent and the planet.’ ”

[¶21.] After considering Dr. Haus-man’s and Uggerud’s testimony and the voluminous record, the PUC issued a thirty-four page letter decision, which, among other things, identified the applicable rules and regulations, the site description, alternative locations, and the impact of the plant on the environment. It also evaluated the regulatory and environmental costs associated with construction of Big Stone II. The PUC found that Big Stone ■ II complied with all rules and regulations under SDCL Chapter 49-41B and ARSD Chapter 20:10:22. As for alternative energy sources, the PUC considered a study submitted by the Applicants from Burns <& McDonnell Engineering Co. It examined alternative baseload generation technologies, such as wind, biomass, hydropower, solar, landfill gas, geothermal energy, distributed generation, atmospheric circulating fluidized bed, combined cycle natural gas turbine, and integrated coal gasification combined cycle. The PUC concluded that “there were no renewable generation options available to address the need for 600 MW of baseload power within the timeframe required, and that other fossil fuel sources were more expensive and less desirable.” Further, according to the PUC, there was no single next best alternative source where the Applicants could obtain the needed energy and the “Inter-venors have not proposed an alternative to provide base load capacity through natural gas or oil instead of coal” and “have not suggested any specific alternative to Big Stone II....”

[¶22.] The PUC also addressed an issue that arose at the hearing where the Intervenors argued that the Applicants should pay the costs associated with possible future regulation of C02 emissions. Because neither Congress nor South Dakota has regulated C02 emissions, and the PUC found it speculative whether such regulations would be established, it concluded that imposing costs would be unwarranted.

[¶ 23.] The PUC considered the environmental impact statement filed by the Applicants. The statement indicated that Big Stone II would emit approximately 4.7 million tons of C02 each year and over 225 million tons of C02 over the expected life of the plant. But the plant would “produce about 18% less C02 than other existing coal-fired plants because the super-critical boiler proposed here is more efficient than other forms of coal-fired technologies.” Thus, the PUC found that Big Stone II “will not contribute materially to the increase in the production of anthropogenic carbon dioxide[.]” The PUC also found that Big Stone II “would increase U.S. emissions of carbon dioxide by approximately .0007, or seven-hundredths of one pereent[J”

[¶ 24.] In sum, considering the voluminous record, including the pre-fíled testimony, the committee report, the environmental impact statement, and the applicable rules and regulations, the PUC concluded that “if constructed in accordance with the terms and conditions” set forth in its decision, Big Stone II “will not pose a threat of serious injury to the environment or to the social and economic conditions of the inhabitants or expected inhabitants in the siting area.”

[¶ 25.] Accordingly, the PUC granted the Applicants a permit to construct Big Stone II in compliance with the terms and conditions of the PUC’s decision. In circuit court, the Intervenors’ appeal was affirmed. They now appeal to this Court asserting that the PUC’s decision (1) violated the plain language of SDCL 49-41B-22; and (2) was clearly erroneous in light of the evidence as a whole.

Standard of Review

[¶ 26.] Our review of the PUC’s decision granting the Applicant’s request for a permit to construct Big Stone II is controlled by SDCL 1-26-36. See Tebben v. Gil Haugen Const., Inc., 2007 SD 18, ¶ 15, 729 N.W.2d 166,171 (quoting Wells v. Howe Heating & Plumbing, Inc., 2004 SD 37, ¶ 9, 677 N.W.2d 586, 590 (quoting SDCL 1-26-36)). The PUC’s findings of fact are reviewed under the clearly erroneous standard, while its conclusions of law are reviewed de novo. See id. “A reviewing court must consider the evidence in its totality and set the [PUC’s] findings aside if the court is definitely and firmly convinced a mistake has been made.” Id. (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 7, 575 N.W.2d 225, 228-29).

Analysis and Decision

[¶27.] According to the Interve-nors, the PUC erroneously applied SDCL 49-M1B-22, and therefore, our review must be de novo, and we should accord no deference to the PUC’s decision that Big Stone II will not pose a threat of serious injury to the environment. They argue that the PUC “was duty-bound to recognize” the findings by the scientific community concerning the impact of C02 emissions on global warming. Moreover, they argue that the PUC’s finding that Big Stone II will emit 4.7 million tons of C02 each year clearly demonstrates that the plant will pose a threat of serious harm to the environment.

[¶ 28.] The Applicants respond that there are no regulations governing the emission of C02, and thus there are no standards by which to conclusively establish what amount of emission constitutes a threat of serious injury to the environment. According to the Applicants, the PUC was required to determine if Big Stone II, not all coal-fired facilities, will pose a threat of serious injury to the environment. Because Big Stone II is calculated to increase U.S. emissions by 0.0007, or seven hundredths of one percent, the Applicants contend that the PUC’s conclusion is not clearly erroneous in light of all the evidence. Moreover, the PUC required that the Applicants report annually on any C02 regulations and their efforts to bring Big Stone II into compliance.

[¶ 29.] We review the PUC’s decision and decide whether, based on the evidence as a whole, we are left with a definite and firm conviction that a mistake has been made. See Sopko, 1998 SD 8, ¶ 6, 575 N.W.2d at 228. While we give due regard to an agency’s well-reasoned and fully informed decision, we will not uphold clear errors of judgment or conclusions unsupported in fact. Our task in this appeal is to decide the narrow question of whether the PUC’s conclusion that Big Stone II will not pose a threat of serious injury to the environment was clearly erroneous in light of all the evidence. See id.

[¶ 80.] There were over 1,400 pages of documentary evidence submitted in this case. The Applicants offered evidence of studies conducted concerning the effect Big Stone II might have on the environment and the community. They also submitted evidence regarding the alternative sources of energy they considered, but ruled out. The Intervenors do not dispute the Applicants’ need for the additional wattage. Nor do they present an argument that there exists a viable alternative to Big Stone II’s coal-fired facility. More significantly, the Intervenors suggest no standards by which the PUC may assess what amount of C02 emissions are tolerable. Rather, they maintain that C02 emissions, at any measurable level, seriously harm the environment.

[¶ 31.] Global warming presents a momentous and complex threat to our planet. A resolution for this problem, critical though it is, cannot be made in the isolation of judicial proceedings. The social, economic, and environmental consequences of global warming implicate policy decisions constitutionally reserved for the executive and legislative branches. To date, no C02 emission standards have been enacted by our political leaders. “Congress has recognized that carbon dioxide emissions cause global warming and that global warming will have severe adverse impacts in the United States, but it has declined to impose any formal limits on such emissions.” Connecticut v. American Elec. Power Co., Inc., 406 F.Supp.2d 265, 268-69 (S.D.N.Y.2005) (citing The Global Climate Protection Act of 1987, PL 100-204, Title XI, §§ 1102-03, reprinted at 15 U.S.C § 2901 note).

[¶ 32.] As members of the judiciary, we refrain from settling policy questions more properly left for the Governor, the Legislature, and Congress. No matter how grave our concerns on global warming, we cannot allow personal views to impair our role under the Constitution. In South Dakota, the Legislature designated the PUC as the responsible agency for this question of granting a permit. We must uphold the PUC’s decision unless we conclude that the ruling was “clearly erroneous in light of the entire evidence in the record or arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” See Korzan v. City of Mitchell, 2006 SD 4, 1112, 708 N.W.2d 683, 686 (citing SDCL 1-26-36).

[¶ 33.] The PUC, in its thirty-four page decision, entered several findings of fact concerning the issue of global warming and C02 emissions. It recognized that despite the asserted scientific consensus on the harm caused from global warming, neither Congress nor the South Dakota Legislature has chosen to regulate C02 emissions. Therefore, the PUC addressed the potential harm from Big Stone II by comparing the projected level of C02 emissions from Big Stone II to the level of emissions nationally. Because Big Stone II would increase C02 emissions by 0.0007, or seven hundredths of one percent, the PUC concluded the threat of harm would not result in serious injury. Nonetheless, as a condition on the permit, the PUC required that the Applicants submit annual reviews of any regulations on C02 emissions and their efforts to comply with those regulations.

[¶ 34.] Our review of the record shows the PUC entered a well-reasoned and informed decision when it concluded that Big Stone II would not pose a threat of serious injury to the environment. It addressed the parties’ contentions regarding global warming and C02 emissions and also provided a detailed explanation of why it rejected the findings proposed by the Inter-venors.

[¶ 35.] While global warming and C02 emissions are considered harmful by the scientific community, what will pose a threat of serious injury to the environment under SDCL 49-41B-22 is a judgment call initially vested with the PUC by the Legislature. Nothing in SDCL Chapter 49-41B so restricts the PUC as to require it to prohibit facilities posing any threat of injury to the environment. Rather, it is a question of the acceptability of a possible threat. Resolving what is acceptable for the people of South Dakota is not for this Court. The Legislature and Congress must balance the competing interests of economic development and protection of our environment. Based on all the evidence and our limited scope of review, the PUC’s decision was not clearly erroneous.

[¶ 36.] Affirmed.

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

      . As confirmed by counsel at oral argument, some utilities have since pulled out of the project. Otter Tail and Montana-Dakota Utilities Company indicate that they will proceed with a smaller facility.

      . In 1972, various electrical utilities and other electrical industry participants voluntarily joined Mid-Continent Area Power Pool (MAPP), an association organized to promote efficiency and reliability in the industry by pooling power generation and transmission. MAPP noted that by the summer of 2011, the MAPP United States region would have an 819 megawatt deficit. To alleviate the fore-casted deficit, MAPP concluded that members would need to construct power generators, purchase additional capacity, and/or reduce the growth in demand.

      . Clean Water Action and the Sierra Club later withdrew.

      . These include: carbon monoxide (CO), lead, nitrogen dioxide, two types of particulate matter, ozone, and sulfur dioxides.

      . According to Dr. Hausman, the term "anthropogenic” refers to human caused emissions of C02.

      . Recently, the United States Supreme Court ruled that the EPA was authorized to regulate C02 when the Court interpreted the phrase "any air pollutant” in the Clean Air Act to include automobile carbon dioxide emissions. See Massachusetts v. E.P.A., — U.S. —, 127 S.Ct. 1438, 1460-61, 167 L.Ed.2d 248 (2007). The Court reasoned that the use of the word "any” indicated that the statute was intended to require regulation of all air pollutants. Id.

      . The Applicants must "submit an annual report to the [PUC] on C02” which "shall review any federal or state action taken to regulate carbon dioxide, how the operator plans to act to come into compliance with those regulations, the expected costs of those compliance efforts and the estimated effect of such compliance on rate-payers. The report should also evaluate operational techniques and commercially-available equipment being used to control C02 emissions at pulverized coal plants, the cost of those techniques or equipment, and whether or not the operator has evaluated the prudence of implementing those techniques or equipment.”


author: WIGGINS, Justice.

text:
    In the Interest of N.V. and P.V., Minor Children, State of Iowa, Appellant.
    No. 07-0583.
    Supreme Court of Iowa.
    Feb. 15, 2008.

      Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Andrea Vitzhum, Assistant County Attorney, for appellant.
    Jeffrey S. Rasmussen of Olson Allen & Rasmussen, L.L.P., Bloomington, MN, and Patrick Wilson, Marshalltown, for appellee Sac and Fox Tribe of the Mississippi in Iowa.
    Victoria Meade, West Des Moines, for appellee-mother.
    David Pargulski, Des Moines, for appel-lee-father.
    Christine Bisignano, West Des Moines, for minor children.
   WIGGINS, Justice.

We must decide whether the district court properly transferred this case to the tribal court. Because the State failed to provide a legal basis for the district court to deny the transfer of this case to the tribal court, we affirm the district court’s order.

I. Background Facts and Proceedings.

The State filed a child in need of assistance (CINA) petition regarding N.V. and P.V. in September 2005. The father of the children was an enrolled member of a tribe other than the Sac and Fox Tribe; however, his mother was a member of the Sac and Fox Tribe, making the father a descendant. According to the Sac and Fox Tribe, N.V. and P.V. were not entitled to enrollment. Even though the children were not entitled to enrollment, under the Iowa Indian Child Welfare Act (Iowa ICWA) the Sac and Fox Tribe was entitled to notification of the proceedings because the Iowa ICWA defines an Indian child as one whom “the Indian tribe identifies as a child of the tribe’s community.” Iowa Code § 232B.3(6) (2005).

On November 28 the district court held a CINA hearing. At the hearing the director of Meskwaki Family Services, who oversees the Iowa ICWA transfers for the Sac and Fox Tribe, acknowledged the tribe received notice of the CINA proceedings. The director testified N.V. and P.V. are not eligible for membership or enrollment in the tribe, but are considered descendants. Therefore, N.V. and P.V. are children of the tribal community and hence Indian children under the Iowa ICWA. The director explained the tribe did not wish to seek jurisdiction over the case because it only sought jurisdiction over cases involving children who were enrolled or eligible for enrollment in the tribe.

The CINA proceedings continued under Iowa Code section 232.2(6)(⅞) (parental drug use) and section 232.2(6)(c)(2) (parental failure to supervise). The parents did not contest the adjudication of their children as children in need of assistance or the placement of their children outside the home with a relative who was licensed as a foster parent. At the time of the CINA proceedings, both parents were incarcerated.

The mother was released from custody-in August 2006. The court held the termination hearing on March 1, 2007. The mother was present at the hearing in person and the father appeared by telephone because he was still incarcerated. At the hearing the mother requested the court to transfer jurisdiction of the proceedings to the tribal court. The father joined the request. The State objected to the transfer. After granting additional time to submit briefs on the issue, the district court granted the request to transfer jurisdiction to the tribal court.

II. Issues.

The State raises three issues on appeal: (1) whether the district court could deny an “eleventh-hour” request to transfer the custody proceedings to a tribal court; (2) whether the parties or witnesses would suffer undue hardship by such a transfer; and (3) whether the doctrines of estoppel, forfeiture, or laches prevent the parents from requesting a transfer to the tribal court.

III. Scope of Review.

Normally, our review of proceedings to terminate parental rights is de novo. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). However, we review issues of statutory interpretation for correction of errors at law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). Because the court did not hold a termination hearing, and because the court based its decision to transfer the case on its interpretation of Iowa Code section 232B.5(10), our review is for correction of errors at law.

IV.Analysis.

A. Whether the District Court Could Deny an “Eleventh-Hour” Request to Transfer Custody Proceedings to a Tribal Court. Sections 232B.5(10) and 232B.5(13) deal with a request to transfer a case from a district court to a tribal court. Section 232B.5(10) allows either of a child’s parents to request such a transfer. Iowa Code § 232B.5(10). This section provides:

Unless either of an Indian child’s parents objects, in any child custody proceeding involving an Indian child who is not domiciled or residing within the jurisdiction of the Indian child’s tribe, the court shall transfer the proceeding to the jurisdiction of the Indian child’s tribe, upon the petition of any of the following persons:
a. Either of the child’s parents.
b. The child’s Indian custodian.
c. The child’s tribe.

Id.

Section 232B.5(13) puts limits on the court’s ability to transfer a case to the tribal court. Section 232B.5(13) provides what circumstances constitute “good cause” for a court to deny a request to transfer a case to a tribal court. Id. § 232B.5(13). The section reads as follows:

If a petition to transfer proceedings as described in subsection 10 is filed, the court shall find good cause to deny the petition only if one or more of the following circumstances are shown to exist:
a. The tribal court of the child’s tribe declines the transfer of jurisdiction.
b. The tribal court does not have subject matter jurisdiction under the laws of the tribe or federal law.
c. Circumstances exist in which the evidence necessary to decide the case cannot be presented in the tribal court without undue hardship to the parties or the witnesses, and the tribal court is unable to mitigate the hardship by making arrangements to receive and consider the evidence or testimony by use of remote communication, by hearing the evidence or testimony at a location convenient to the parties or witnesses, or by use of other means permitted in the tribal court’s rules of evidence or discovery.
d. An objection to the transfer is entered in accordance with subsection 10.

Id.

The State requests us to construe the transfer statutes to provide the court with discretion to deny the parents’ demand to transfer jurisdiction to the tribal court because they did not present good cause to excuse their untimely transfer request. We only resort to the rules of statutory construction when a statute is ambiguous. State v. Wiederien, 709 N.W.2d 538, 541 (Iowa 2006). When the statute’s language is plain and its meaning is clear, we look no further. State v. Snyder, 634 N.W.2d 613, 615 (Iowa 2001). “If reasonable persons can disagree on a statute’s meaning, it is ambiguous.” Wiederien, 709 N.W.2d at 541. In this case, the language is plain, clear, and susceptible to only one interpretation.

Section 232B.5(10) mandates that a court shall transfer the proceeding to a tribal court upon a petition from the persons listed in the statute. Iowa Code § 232B.5(10). While the statute does not directly speak to the timing of when the transfer can or should be made, the statute does include the language “upon the petition,” indicating the transfer should be made directly after an appropriate party requests the transfer. This language makes it clear that section 232B.5(10) does not contain any limitation on the time in which a request to transfer must be filed.

Further evidence that the transfer sections of the Iowa ICWA do not contain a time limitation for requesting a transfer can be found in section 232B.5(13). This section lists the circumstances that constitute good cause to allow a court to deny a request to transfer a case. The section specifically states “the court shall find good cause to deny the petition only if one or more of the” circumstances contained in the statute are shown to exist. Id. (emphasis added). By use of the word “only,” the legislature made it clear that only those causes listed in section 232B.5(13) constitute good cause to deny the request for a transfer to a tribal court. None of the circumstances enumerated in section 232B.5(13) even hint at the requirement that a last-minute request to transfer a case to a tribal court is untimely, or that it constitutes good cause for the court to deny the request. Consequently, we hold the plain language of the transfer sections of the Iowa ICWA do not allow the court to deny a request to transfer a case to the tribal court based on the timing of the request.

Moreover, our construction of the transfer statutes is not only consistent with the plain language of the statutes, it is also consistent with the legislative history of the Iowa ICWA. Prior to the enactment of the Iowa ICWA, the federal Indian Child Welfare Act (federal ICWA) governed cases involving Indian children. The federal ICWA required the court, “in absence of good cause to the contrary,” to transfer a case from a state court to a tribal court in cases involving the placement of an Indian child or the termination of parental rights involving an Indian child. 25 U.S.C. § 1911(b). The federal ICWA did not include a definition of good cause or enumerate the circumstances constituting good cause. Id. However, the Bureau of Indian Affairs issued nonbinding guidelines listing circumstances when good cause may exist to deny the transfer of a case to a tribal court. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,591 (Nov. 26, 1979). These guidelines provide good cause may exist to deny a transfer if “[t]he proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.” Id. These guidelines also state good cause may exist to deny a transfer if “[t]he evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.” Id.

Prior to the enactment of the Iowa ICWA in 2003, our appellate courts adjudicated cases involving Indian children by applying the federal ICWA and the Bureau of Indian Affairs’ guidelines. On at least two occasions, our court of appeals denied a tribe’s transfer request for good cause when the proceedings were at an advanced stage, and the tribe did not promptly file the request to transfer. See In re J.W., 528 N.W.2d 657, 660-61 (Iowa Ct.App.1995); see also In re K.T., No. 02-0952, 2002 WL 1758435, at *3 (Iowa Ct. App.2002). On another occasion this court denied a request to transfer a case to a tribal court because the “ ‘evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship [to] the parties or the witnesses.’” In re J.R.H., 358 N.W.2d 311, 317 (Iowa 1984) (citing 44 Fed. Reg. at 67, 591).

When the legislature adopted section 232B.5(13)(c), it made a choice to adopt the undue hardship provision of the Bureau of Indian Affairs’ guidelines, but not the provision dealing with the timeliness of a transfer request. This choice by the legislature confirms it did not intend to place a time limit on a parent’s request to transfer a case to a tribal court.

Finally, the State argues the district court should have denied the transfer request because it was not in the best interest of the children. This argument fails for two reasons. First, the transfer statutes do not allow a best-interest-of-the-child exception to deny a transfer request made in accordance with the Iowa ICWA. Second, the Iowa ICWA does not use the traditional definition of “the best interest of the child” as used in custody cases involving non-Indian children. Iowa Code § 232B.3(2). The Iowa ICWA defines best interest of the child as:

[T]he use of practices in accordance with the federal Indian Child Welfare Act, this chapter, and other applicable law, that are designed to prevent the Indian child’s voluntary or involuntary out-of-home placement, and whenever such placement is necessary or ordered, placing the child, to the greatest extent possible, in a foster home, adoptive placement, or other type of custodial placement that reflects the unique values of the child’s tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the Indian child’s tribe and tribal community.

Id.

Under this definition, it is in a child’s best interest to place him or her in a home that will preserve the unique values of the child’s tribal culture and assist the child in establishing relationships with the tribe and tribal community. Id. Even if we were to find the traditional definition of the best interest of the children would override the circumstances enumerated in the transfer statutes, under the Iowa ICWA definition we find it is in the best interest of N.Y. and P.V. to transfer their case to the tribal court so it can preserve the unique values of their tribal culture and assist the children in establishing relationships with their tribal community.

Therefore, the district court was correct when it transferred this case to the tribal court even though the parents’ request came at the beginning of the termination hearing.

B. Whether the Parties or Witnesses Would Suffer Undue Hardship by a Transfer to the Tribal Court. Iowa Code section 232B.5(13)(e) contains a hardship provision that allows a court to find good cause to deny a transfer. It provides:

Circumstances exist in which the evidence necessary to decide the case cannot be presented in the tribal court without undue hardship to the parties or the witnesses, and the tribal court is unable to mitigate the hardship by making arrangements to receive and consider the evidence or testimony by use of remote communication, by hearing the evidence or testimony at a location convenient to the parties or witnesses, or by use of other means permitted in the tribal court’s rules of evidence or discovery.

Iowa Code § 232B.5(13)(c). The burden of proving good cause is on the party opposing the transfer, which in this case is the State. See In re J.W., 528 N.W.2d at 660.

The district court found neither the parties nor the witnesses would suffer undue hardship if the case were transferred to the tribal court. In its ruling, the district court stated:

The evidence does not support a finding that :.. circumstances exist in which the evidence necessary to decide the case cannot be presented in the tribal court without undue hardship to the parties or witnesses. Prior court files, transcripts, and exhibits can be made available to the tribal court and the children, now twelve and fourteen, are bright young people who can make their positions and concerns known to their representatives in any forum.

We have no reason to disagree with this finding. Accordingly, the district court was correct when it refused to deny the transfer of this case to the tribal court under section 232B.5(13)(c).

C. Whether the Doctrines of Estoppel, Forfeiture, or Laches Prevent the Parents From Requesting a Transfer to the Tribal Court. On appeal the State raises the doctrines of forfeiture and laches for the first time. Ordinarily, issues not presented to the trial court are not reviewable when raised for the first time on appeal. State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982). Therefore, we will not address the State’s arguments concerning the doctrines of forfeiture and laches.

In its ruling, the district court found the State’s argument on estoppel compelling, but never ruled on the merits of the doctrine. Instead the court found the unambiguous requirements of the transfer statutes required the court to transfer this case to the tribal court. We agree with the district court.

The doctrine of estoppel cannot be used to trump the clear statutory right under the Iowa ICWA that allows a party to transfer a case to a tribal court without a time limit. To hold otherwise would not only insert a time limit for a person to request a transfer that is not contained in the transfer statutes, but would also be inconsistent with the purpose of the act.

The tribe’s interest in the future of an Indian child is not only significant, it is also an interest the legislature sought to vigorously protect. The legislature provided that if an objection is made to the transfer, the court “shall reject any objection that is inconsistent with the purposes of [the Iowa ICWA].” Iowa Code § 232B.5(11). The purpose of the Iowa ICWA is to ensure Indian children can be placed in homes that reflect the unique values of the child’s tribal culture and assist the child in establishing relationships with the child’s tribe and tribal community. Id. § 232B.2. The transfer statute specifically provides:

[T]he court shall reject any objection that is inconsistent with the purposes of this chapter, including but not limited to any objection that would prevent maintaining the vital relationship between Indian tribes and the tribes’ children and would interfere with the policy that the best interest of an Indian child require that the child be placed in a foster or adoptive home that reflects the unique values of Indian culture.

Id. § 232B.5(11). Accordingly, we conclude when the statutory right under the Iowa ICWA exists for a person to transfer a case to a tribal court without a time limit, estoppel cannot be used to deprive a person of that right.

Y. Disposition.

Because the State failed to provide a legal basis for the district court to deny the transfer of this case to the tribal court, we affirm the district court’s transfer order.

AFFIRMED.

All justices concur, except LARSON, J., who takes no part.

      . In November 2007 we held section 232B.3(6) to be unconstitutional as applied to children who were not members of a tribe or eligible for membership in a tribe. In re A. W., 741 N.W.2d 793, 813 (Iowa 2007).