author: VANDE WALLE, Chief Justice.

text:
    2000 ND 168
    CITY OF WEST FARGO, Plaintiff and Appellee, v. Kenneth Donald HAWKINS, Defendant and Appellant.
    No. 990351.
    Supreme Court of North Dakota.
    Sept. 6, 2000.

      Timothy M. O’Keeffe, City Prosecutor, Fargo, N.D., for plaintiff and appellee.
    Tami L. Norgard, Vogel, Weir, Hunke & McCormick, Ltd., Fargo, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Kenneth Donald Hawkins appealed from a judgment of conviction for driving under the influence (“DUI”). We affirm, concluding the evidence was sufficient to support the conviction and the trial court did not err in admitting into evidence the analytical blood test report.

I

[¶ 2] Hawkins was involved in an automobile accident at approximately 3:30 p.m. on May 29, 1999, on Main Avenue in West Fargo. Hawkins attempted to walk away from the accident scene and was stopped by Officer Sail of the West Fargo Police Department. Officer Sail noticed a strong odor of alcohol coming from Hawkins. Officer Sail transported Hawkins back to the accident scene in the back of his patrol car. Hawkins failed field sobriety tests and was arrested for DUI.

[¶ 3] Officer Sail transported Hawkins to a local hospital where Brenda Johnson, a registered nurse, drew a blood sample from Hawkins. Johnson completed and signed the portion of Form 104, included in the blood kit, indicating she had drawn the blood in accordance with the State Toxicologist’s approved method.

[¶4] Officer Sail completed the rest of Form 104, including the checklist indicating the various steps outlined by the State Toxicologist had been followed. One of those checked items states: “Affixed tamper-evident kit box shipping seal on kit box.” Officer Sail admitted at trial that, although he checked that item while still at the hospital, he actually had not at that time placed the shipping seal on the kit box. He testified, however, that the blood kit box remained in his possession at all times, and he placed the shipping seal on the box a short time later.

[¶ 5] The case was originally venued in municipal court, but was transferred to district court upon Hawkins’s request for a jury trial. Although the original uniform traffic complaint erroneously listed the date of the offense as May 28, 1999, the copy of the uniform complaint filed with the district court had been changed to show the correct date, May 29, 1999. Hawkins’s counsel concedes she received a copy of the complaint with the corrected date of the offense prior to trial.

[¶ 6] Defendant’s pre-trial motion to suppress the Form 104 and blood test results, which showed Hawkins’s blood alcohol content at .25 percent, was denied. Trial was held on November 16-17, 1999, and the jury returned a verdict finding Hawkins guilty of DUI.

II

[¶ 7] Hawkins asserts he was entitled to a verdict of acquittal as a matter of law because the complaint charged him with committing the offense on May 28, 1999, but all of the evidence at trial related to conduct occurring on May 29, 1999. He therefore argues this Court must reverse the conviction and dismiss the DUI charge because there was insufficient evidence to convict him of the offense charged.

[¶ 8] The primary purpose of a criminal complaint or information is to fairly inform the accused of the charges against him to enable him to prepare for trial. City of Fargo v. Schwagel, 544 N.W.2d 873, 874 (N.D.1996); State v. Gahner, 413 N.W.2d 359, 361 (N.D.1987); N.D.R.Crim.P. 7(c), Explanatory Note. In considering the sufficiency of the criminal information, technicalities have been abol ished, and mere defects, inaccuracies, or omissions do not affect the proceedings unless, as a result, no offense is charged. City of Grand Forks v. Mata, 517 N.W.2d 626, 628 (N.D.1994).

[¶ 9] There is no argument here that Hawkins was not informed of the charge against him, that he was unfairly surprised at trial, or that he was prejudiced in his ability to prepare a defense. The original uniform traffic complaint indicated the correct day of the week of the offense, Saturday, but erroneously listed the date as May 28 instead of May 29. Hawkins’s counsel received a copy of the complaint with the corrected date in advance of trial. At the suppression hearing on October 19, 1999, a month before trial, Hawkins’s counsel questioned Officer Sail about the incorrect date on the complaint. The record demonstrates Hawkins was aware before trial that the date on the complaint was wrong, and he does not argue he did not have notice or that his ability to present a defense was affected by the error.

[¶ 10] Our prior cases establish that an erroneous date in the criminal complaint or information is not reversible error unless the date is an essential element of the crime charged:

We hold that unless time is an essential element of an offense, it is not required in a criminal prosecution that the crime be proved to have been committed on the precise date or time period alleged in the complaint or information. It is sufficient that the State prove the commission of the crime charged at any time prior to the filing of the complaint and within the period fixed by the applicable limitations statute.

State v. Hatch, 346 N.W.2d 268, 276 (N.D. 1984); see also State v. Vance, 537 N.W.2d 545, 549 (N.D.1995).

[¶ 11] Hawkins asserts the date of the offense is an element of the crime of DUI which must be properly pleaded in the complaint. “Element of an offense” is defined in N.D.C.C. § 12.1-01-03(1):

“Element of an offense” means:
a. The forbidden conduct;
b. The attendant circumstances specified in the definition and grading of the offense;
c. The required culpability;
d. Any required result; and
e. The nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.

[¶ 12] Hawkins argues that, because the “per se” DUI offense requires the prosecution to establish he had a blood alcohol concentration of at least .10 percent within two hours of driving, the time and date become an element of the offense. See N.D.C.C. § 39-08-01(l)(a). The prosecution is only required to show the driving and the blood alcohol testing occurred within two hours of each other. It is entirely immaterial whether those events occurred on May 28 or May 29, as long as they occurred within two hours of each other. The date becomes an element only if there would be no crime if the conduct occurred on the date alleged in the complaint. Under the circumstances in this case, the date of the offense is not an element of the crime of DUI. Accordingly, we reject Hawkins’s argument the evidence was insufficient to convict him of the offense charged.

Ill

[¶ 13] Hawkins argues the trial court erred in admitting the Form 104 and the analytical report showing his blood alcohol content was .25 percent. Hawkins claims the prosecution has failed to show the State Toxicologist’s approved method was “scrupulously” complied with, and therefore has not established fair administration of the blood test.

A

[¶ 14] Hawkins argues Officer Sail’s failure to place the shipping seal on the blood kit box at the hospital, and checking that item on the checklist before he actually performed it, constitutes a deviation from the approved method and renders the blood test results inadmissible.

[¶ 15] Section 39-20-07, N.D.C.C., governs admissibility of blood test results:

Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor, drugs, or a combination thereof, evidence of the amount of alcohol, drugs, or a combination thereof in the person’s blood at the time of the act alleged as shown by a chemical analysis of the blood, breath, saliva, or urine is admissible. For the purpose of this section:
5. The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist. The state toxicologist is authorized to approve satisfactory devices and methods of chemical analysis and determine the qualifications of individuals to conduct such analysis, and shall issue a certificate to all qualified operators who exhibit the certifícate upon demand of the person requested to take the chemical test.
8. A certified copy of the analytical report of a blood, urine, or saliva analysis referred to in subsection 5 and which is issued by the state toxicologist must be accepted as prima facie evidence of the results of a chemical analysis performed under this chapter. The certified copy satisfies the directives of subsection 5.

[¶ 16] In light of this statutory scheme, the State Toxicologist has drafted Form 104, which contains directions and a checklist to ensure proper collection and submission of blood samples. See State v. Schwalk, 430 N.W.2d 317, 322 (N.D.1988). When the State Toxicologist has established methods and procedures for conducting the requisite test, fair administration can be established by proof that those methods have been scrupulously followed. See, e.g., State v. Chihansk, 540 N.W.2d 621, 624 (N.D.1995); Schwalk, at 323. However, “scrupulous” compliance does not mean “hypertechnical” compliance. McPeak v. Moore, 545 N.W.2d 761, 762 (N.D.1996); Chihanski, at 624.

[¶ 17] We have explained the purpose of Form 104:

The directions for sample collection and submission on Form 104 essentially comprise two components: the actual procedure for collecting and preserving the blood sample and the directions for submitting the sample to the State Toxicologist. The first component ensures that the scientific accuracy and reliability of the test are not affected by improper collection or preservation of the blood sample. The second component in effect provides an evidentiary shortcut for establishing chain of custody.

Schwalk, 430 N.W.2d at 322. We have drawn a distinction between deviations which may affect the scientific reliability of the test and those which do not. In Schwind v. Director, North Dakota Department of Transportation, 462 N.W.2d 147, 151-62 (N.D.1990), we concluded that, when there are deviations which go to the scientific accuracy of the test, the prosecution must prove fair administration of the test through expert testimony. However, when the deviation from the approved method could not have affected the reliability or accuracy of the test results, the deviation does not render the test results inadmissable. Id. at 152; Heinrich v. North Dakota State Highway Commissioner, 449 N.W.2d 587, 589 (N.D.1989).

[¶ 18] Officer Sail’s admission he checked the box indicating he had affixed the tamper-evident shipping label to the blood kit box before he actually affixed the label might have affected his credibility, a matter for the trier of fact. But, this step goes to the chain-of-custody component under Schwalk, and could not have affected the scientific accuracy or reliability of the test results. Officer Sail cleared up any gap in the chain of custody when he testified the blood kit box remained in his possession at all times and he affixed the shipping label a short time after leaving the hospital. Under these circumstances, we conclude the trial court did not err in admitting the blood test results.

B

[¶ 19] Hawkins further asserts the trial court erred in admitting the blood test results because N.D.C.C. § 39-20-07(8) requires the prosecution to introduce a certified copy of the analytical blood test report. Section 39-20-07(8), N.D.C.C., provides:

A certified copy of the analytical report of a blood, urine, or saliva analysis referred to in subsection 5 and which is issued by the state toxicologist must be accepted as prima facie evidence of the results of a chemical analysis performed under this chapter. The certified copy satisfies the directives of subsection 5.

[¶20] The challenged exhibit in this case, Exhibit 3, is a two-page document. The first page is an original, notarized statement signed by Aaron Rash, the State Toxicologist, certifying that the attached documents are identical to the originals on file at the Toxicology Laboratory, and that the analysis of Hawkins’s blood had been performed by a certified operator according to the method and with a device approved by the State Toxicologist. Attached to Rash’s certification page is a photocopy of the blood submission portion of Form 104 and the analytical blood test report.

[¶ 21] We have specifically approved use of this exact certification procedure. In Tabert v. North Dakota Department of Transportation, 1997 ND 39, ¶ 9, 560 N.W.2d 883, and State v. Asbridge, 555 N.W.2d 571, 574 (N.D.1996), we held that a separate certification page identical to the one in this case satisfied the certification requirements of N.D.C.C. § 39-20-07. We conclude the trial court did not err in admitting the analytical blood test report.

IV

[¶ 22] We have considered the remaining arguments raised by Hawkins and find them to be without merit. The judgment of conviction is affirmed.

[¶ 23] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., JOHN C. McCLINTOCK, D.J., concur.

[¶ 24] The Honorable JOHN C. McCLINTOCK, JR., D.J., sitting in place of KAPSNER, J., disqualified.

      . For purposes of this issue, we will assume the complaint was never properly amended, although the copy in the district court's file bears the correct date. The prosecution did not show how or when the copy filed with the court was changed to reflect the correct date.

      . For example, a charge of minor in possession which lists an offense date after the defendant’s twenty-first birthday would fail to charge a crime.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2000 ND 169
    Mary M. EGELAND, Plaintiff and Appellant, v. CONTINENTAL RESOURCES, INC.; Flying J Oil & Gas, Inc.; Big West Oil & Gas, Inc.; Samedan Oil Corporation; and M.J. Armstrong, Defendants and Appellees.
    No. 20000042.
    Supreme Court of North Dakota.
    Sept. 14, 2000.

      Michael J. Maus, Hardy, Maus & Nord-sven, Dickinson, N.D., for plaintiff and appellant.
    Lawrence Bender, Pearce & Durick, Bismarck, N.D., for defendants and appel-lees.
   NEUMANN, Justice.

[¶ 1] Mary M. Egeland appealed from a summary judgment quieting title to two oil and gas leases in Continental Resources, Inc.; Flying J Oil & Gas, Inc.; Big West Oil & Gas, Inc.; Samedan Oil Corporation; and M.J. Armstrong (“the defendants”). We conclude, as a matter of law, the defendants did nqt breach the leases under the circumstances of this case, and we affirm.

I

[¶ 2] On March 8, 1991, Egeland entered into an oil and gas lease with Farmers Union Central Exchange, Inc. (“Cenex”), covering about 472 acres of Bowman County property. On the same date, Egeland and Donna Schaefer, individually and as trustees of the Monte A. Egeland Residuary Trust, entered into an oil and gas lease with Cenex covering another 465 acres of Bowman County property. Through various assignments, the defendants became owners of the leasehold estate under both of the Cenex leases.

[¶ 3] Both leases contained the following habendum and continuous drilling operations clauses:

It is agreed that this lease shall remain in force for a term of FIVE (5) years from this date, and as long thereafter as oil, gas, casinghead gas, casinghead gasoline and other hydrocarbon substance or any of them is produced from said leased premises, or drilling operations are continued as hereinafter provided. If, at the expiration of the primary term of this lease, oil or gas is not being produced on the leased premises but lessee is then engaged in drilling operations, then this lease shall continue in force so long as drilling operations are being continuously prosecuted on the leased premises; and drilling operations shall be considered to be continuously prosecuted if not more than sixty days shall elapse between the completion or abandonment of one well and the beginning of operations for the drilling of a subsequent well. If oil or gas shall be discovered and produced from any such well or wells drilled or being drilled at or after the expiration of the primary term of this lease, this lease shall continue in force so long as oil or gas shall be produced from the leased premises.

[¶ 4] Both leases also contained an “Exhibit A”, which included a clause nullifying a preprinted “unitization clause” and a form of a Pugh clause:

Notwithstanding anything contained herein to the contrary, no part or portion of the lands covered by this lease shall be committed to any unit plan of development or operation without the prior express written consent of the Lessor, her successors or assigns[J
A producing well, or well capable of production, will perpetuate this lease beyond its Primary Term ONLY as to those lands as are located within, or committed to, a producing or spacing unit established by Government authority having jurisdiction.

[¶ 5] The property covered by the Cenex leases is within an area designated by the Industrial Commission on June 1, 1995, as the Cedar Hills-Red River “B” Pool. The Commission established this pool for the exclusive purpose of drilling horizontal wells. Under the Commission’s order, the property covered by the Cenex leases was included in five separate spacing units, and the number of horizontal wells which could be drilled on each 640-acre unit was restricted to two. Because each of the five spacing units consisted of fractional tracts, Continental Resources, Inc. (“Continental”), applied for and obtained compulsory pooling orders from the Commission for each of the five spacing units. Egeland did not consent to any of the pooling orders.

[¶ 6] Before the primary term of the Cenex leases expired on March 8,1996, the Commission issued permits and authorized Continental to drill one well in each of the five spacing units. The Skull Creek # 1-13 well was spudded on December 19, 1995, and was completed on February 17, 1996. The Rocky # 1-18F well was spud-ded on February 23, 1996, and was completed on April 13, 1996. The Schaefer # 1-24F well was spudded on March 29, 1996, and was completed on May 19, 1996. The Monte # 1-19F well was spudded on February 3, 1996, and was completed on March 19, 1996. The Clayton # 1-7 well was spudded on March 6, 1996, and was completed on April 23, 1996. The Skull Creek, Rocky and Schaefer Wells were drilled on land covered by the Egeland-Cenex lease. The Monte and Clayton wells were drilled on land covered by the Residuary Trust-Cenex lease.

[¶ 7] In October 1998, Egeland sued the defendants, alleging the Cenex leases were void or should be canceled because they were either breached by the defendants or expired before producing wells on the property were drilled. The defendants counterclaimed, seeking to quiet title. The trial court denied Egeland’s motion for partial summary judgment, granted the defendant’s cross motion for summary judgment, dismissed Egeland’s complaint in its entirety, and quieted title in the leases in the defendants. The court reasoned:

[T]he habendum clause, the continuous drilling operations clause and the Pugh clause in each lease reveal that there is no conflict between the operation provisions of the Cenex leases. Rather, each of these clauses operates in harmony with the others. Moreover, it appears to me that Defendant ]s have performed all that was required or expected under the leases and that everyone has received precisely what they bargained for, no more and no less.

Egeland appealed.

II

[¶ 8] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Dan Nelson Construction, Inc. v. Nodland & Dickson, 2000 ND 61, ¶ 13, 608 N.W.2d 267. A party seeding summary judgment has the burden of clearly demonstrating there is no genuine issue of material fact. Dinger ex rel. Dinger v. Strata Corp., 2000 ND 41, ¶ 14, 607 N.W.2d 886.

A

[¶ 9] Egeland contends the trial court erred in granting summary judgment in the defendants’ favor because the defendants breached the Cenex leases by applying to the Commission to force pool the property without Egeland’s prior written consent, which she argues constitutes committing the lands to “any unit plan of development or operation” in violation of Exhibit A of the leases.

[¶ 10] The same general rules that govern interpretation of contractual agreements apply to oil and gas leases. Johnson v. Mineral Estate, Inc., 343 N.W.2d 778, 780 (N.D.1984). The construction of a written contract to determine its legal effect is a question of law for the court to decide, and on appeal, this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation of it. West v. Alpar Resources, Inc., 298 N.W.2d 484, 490 (N.D.1980). Words in a contract are construed in their ordinary and popular sense, unless used by the parties in a technical sense or given a special meaning by the parties. Grynberg v. Dome Petroleum Corp., 1999 ND 167, ¶ 10, 599 N.W.2d 261. We also construe contracts in light of existing statutes, which become part of and are read into the contract as if those provisions were included in it. Reed v. University of North Dakota, 1999 ND 25, ¶ 22 n. 4, 589 N.W.2d 880. A contract must be read and considered in its entirety so that all of its provisions are taken into consideration to determine the true intent of the parties. Miller v. Schwartz, 354 N.W.2d 685, 688 (N.D.1984).

[¶ 11] At the time the Cenex leases were executed, the Commission had the statutory authority to set spacing units for a pool “[w]hen necessary to prevent waste, to avoid the drilling of unnecessary wells, or to protect correlative rights.... ” N.D.C.C. § 38-08-07(1). The Commission’s statutory authority is designed to further this state’s policy “to foster, to encourage, and to promote the development, production, and utilization of natural resources of oil and gas ... to the end that the landowners, the royalty owners, the producers, and the general public realize and enjoy the greatest possible good from these vital natural resources.” N.D.C.C. § 38-08-01. The Act for the Control of Gas and Oil Resources, N.D.C.C. ch. 38-OS, grants the Commission comprehensive powers to regulate oil and gas development in the state, and this Court has upheld as valid exercises of the state’s police powers various Commission orders spacing or compelling pooling. See, e.g., Continental Resources, Inc. v. Farrar Oil Co., 1997 ND 31, ¶ 17, 559 N.W.2d 841; Texaco Inc. v. Industrial Commission, 448 N.W.2d 621, 624 (N.D.1989); Hystad v. Industrial Commission, 389 N.W.2d 590, 594 (N.D. 1986); Slawson v. North Dakota Industrial Commission, 339 N.W.2d 772, 777 (N.D. 1983). The Commission’s powers are continuous, Amoco Production Co., 307 N.W.2d at 843, and are exclusive. Hystad v. Mid-Con Exploration Co.-Exeter, 489 N.W.2d 571, 574 (N.D.1992).

[¶ 12] Pooling is authorized by N.D.C.C. § 38-08-08(1):

When two or more separately owned tracts are embraced within a spacing unit, or when there are separately owned interests in all or a part of the spacing unit, then the owners and royalty owners thereof may pool their interests for the development and operation of the spacing unit. In the absence of voluntary pooling, the commission upon the application of any interested person shall enter an order pooling all interests in the spacing unit for the development and operations thereof. Each such pooling order must be made after notice and hearing, and must be upon terms and conditions that are just and reasonable, and that afford to the owner of each tract or interest in the spacing unit the opportunity to recover or receive, without unnecessary expense, his just and equitable share.

Under this statute, pooling of a spacing unit can occur either (1) by the parties voluntarily pooling their separately owned tracts or interests, or (2) by the Commission’s order entered upon the application of any interested person. Consent of an individual interest owner is relevant only under the first option. Consent is irrelevant if an interested person applies to the Commission for a pooling order.

[¶ 13] In this case, Continental did not voluntarily pool its interests with other owners under the first option, but applied to the Commission, as “any interested person” under the second option, for a compulsory pooling order. Although N.D.C.C. § 38-08-08(1) required that Egeland receive notice of the proceedings, the law neither requires nor provides a procedure for securing a royalty owner’s consent to a forced pooling. Continental’s application for forced pooling cannot be viewed as “committing] to any unit plan of development or operation without the prior express written consent of the lessor ...” within the meaning of Exhibit A of the Cenex leases. Penalizing as a breach of contract an interested person’s use of the application procedure for forced pooling would inhibit use of a statutory procedure designed to implement the strong public policy of fostering the efficient development and use of the state’s oil and gas resources. See Farrar Oil, 1997 ND 31, ¶ 16, 559 N.W.2d 841. Agreements should not be construed to be injurious to the public or against the public good. See generally N.D.C.C. § 9-08-01; Muscatell v. North Dakota Real Estate Commission, 546 N.W.2d 374, 378 (N.D.1996).

[¶ 14] Construing Exhibit A together with the existing law which became a part of the Cenex lease agreements, we conclude Continental did not breach the leases by applying to the Commission for a compulsory pooling order under N.D.C.C. § 38-08-08(1).

B

[¶ 15] Egeland contends the trial court erred in failing to conclude the Ce-nex leases terminated on March 8, 1996, because of the Pugh clause contained in Exhibit A to the leases. This Court has not previously interpreted the effect of a Pugh clause on an oil and gas lease.

[¶ 16] The general rule is an oil and gas lease is indivisible by its nature. See Shown v. Getty Oil Co., 645 S.W.2d 555, 560 (Tex.Ct.App.1982). Ordinarily, production from, or other operations on, any part of the land included in an oil and gas lease will perpetuate the lease beyond the primary term as to all of the land covered by the lease. See SMK Energy Corp. v. Westchester Gas Co., 705 S.W.2d 174, 176 (Tex.Ct.App.1985). This situation becomes complicated by a government authority’s creation of units which encompass acreage comprised of portions of several different leaseholds. See Rougon v. Chevron, U.S.A Inc., 575 F.Supp. 95, 98 (M.D.La.1983). The majority rule is governmental pooling and unitization orders do not divide a lease, and production anywhere on the pooled acreage holds all leases that may be wholly or partly in the unit. See Mesa Petroleum Co. v. Scheib, 726 F.2d 614, 615 (10th Cir.1984). See also N.D.C.C. § 38-08-08(1) (“Operations incident to the drilling of a well upon any portion of a spacing unit covered by a pooling order must be deemed, for all purposes, the conduct of such operations upon each separately owned tract in the drilling unit by the several owners thereof.”) In other words, “[a] principal effect of the pooling or the unitization of a lease in most states is to preserve the entire lease even if only a portion, however small, of the lease is included in the unit.” 1 B. Kramer & P. Martin, The Law of Pooling and Unitization § 9.01, p. 9-1 (3rd ed. 1999) (“Pooling and Unitization ”). Pooling and unitization can therefore produce undesirable legal consequences for the lessor, whose royalty interest can be diluted by inclusion of only a portion of his leased land in a unit with land held by other interests. See Will-Drill Resources, Inc. v. Huggs Inc., 738 So.2d 1196, 1200 (La.Ct. App.1999).

[If 17] In 1947, a Louisiana lawyer, Lawrence G. Pugh, drafted a clause, eventually named after him, which was calculated to prevent the holding of non-pooled acreage in his client’s lease while certain portions of the lease acreage were being held under pooled arrangements. See Shown, 645 S.W.2d at 560. The main purpose of a Pugh clause “is to protect the lessor from the anomaly of having the entire property held under a lease by production from a very small portion,” and the clause is designed to “foster[] reasonable development of leased property.” Sandefer Oil & Gas, Inc. v. Duhon, 961 F.2d 1207, 1209 (5th Cir.1992). Although a Pugh clause generally provides for a severance of the lease where less than all of the leasehold is included in a single unit, Pugh clauses vary widely in form. See 4 Williams & Meyers 1 at § 669.14; 5 Summers, Oil & Gas § 960 (1966); 4 E. Kuntz, Oil and Gas § 48.4 (1990). To bring about a result contrary to the general rule of indivisibility, a Pugh clause must clearly and explicitly direct a division of the lease into several parts, and direct that production on the pooled portion does not constitute production on the part not pooled. Seheib, 726 F.2d at 615-16. A Pugh clause cannot arise by implication. Id.

[¶ 18] The Pugh clause in this case provides “[a] producing well, or well capable of production, will perpetuate this lease beyond its Primary Term ONLY as to those lands as are located within, or committed to, a producing or spacing unit established by Government authority having jurisdiction.” Egeland argues, because the Pugh clause provides that a producing well will perpetuate the lease beyond the primary term “ONLY” as to those lands as are located within or committed to a producing or spacing unit, and the written part of a contract controls over the pre-printed part when there is a conflict, see N.D.C.C. § 9-07-16, the Pugh clause conflicts with and overrides the habendum and continuous drilling operations clauses contained in the leases. According to Egeland, the net effect is that the Pugh clause operated to terminate the Cenex leases as to those lands not committed to a producing spacing unit on March 8, 1996, and because only the Skull Creek well was producing or capable of producing before March 8, 1996, the leases as to all those lands outside the spacing unit for the Skull Creek well terminated on March 8, 1996.

[¶ 19] The defendants argue there is no irreconcilable conflict between the Pugh clause and the habendum and continuous drilling operations clauses because the Pugh clause does not address drilling at the end of the primary term. Although the Pugh clause modifies the leases by providing that production on the leases extends the leases only as to the specific lands sharing in production, the defendants argue the Pugh clause does not negate the additional language in the leases allowing the leases to be extended by continuous drilling operations. According to the defendants, the clauses, read together, required them to commence drilling operations on or before March 8, 1996 on each of the two leases and to continuously pursue those operations thereafter. Because not more than 60 days elapsed from the completion of one well and the beginning of operations on another well on each lease, the defendants argue the Cenex leases remained in full force and effect as to all lands included within a pooled spacing unit for so long as oil and gas is produced from the spacing unit.

[¶ 20] Egeland relies on three decisions from other jurisdictions to support her construction of the leases. Two of those decisions are not particularly relevant. In Federal Land Bank v. Texaco, Inc., 250 Mont. 471, 820 P.2d 1269, 1273 (1991), the Montana Supreme Court held “statewide” spacing of one well per 320 acres was sufficient to constitute a spacing unit for purposes of invoking a Pugh clause. There is no dispute in this case that the actions of the Commission were sufficient to invoke the Pugh clause in the Cenex leases. The Texaco court also ruled the Pugh clause did not conflict with the ha-bendum clause, but merely modified the habendum clause by terminating the lease as to lands not embraced in a producing oil and gas unit. Id. Because the well was actually producing before the end of the primary term, the court was not required to address the effect of the Pugh clause on the continuous drilling operations clause contained in the lease. Id. at 1272. In Oswell v. Tennessee Land and Exploration Co., 774 F.2d 1556, 1557-58 (11th Cir.1985), the court held a typewritten rider to an oil and gas lease requiring forfeiture of “all rights and claims” to the lease was in irreconcilable conflict with, and therefore controlled over, a printed Pugh clause that exempted only a portion of the lease from forfeiture. We conclude neither Texaco nor Osivell is helpful in resolving the dispute in this case.

[¶ 21] The third case cited by Egeland is more applicable than the other two. In Roseberry v. Louisiana Land & Exploration Co., 470 So.2d 178 (La.Ct.App.1985), the lessor sued to cancel a portion of an oil and gas lease outside a producing spacing unit. The lease provided for a primary term of five years from November 19, 1978, and as long thereafter as oil or gas or other minerals were being produced from the leased property or land pooled therewith, or was maintained in force in any other manner provided in the lease. The lease contained a continuous drilling operations clause, providing if oil or gas was not being produced on the land or land pooled therewith at the expiration of the primary term “but Lessee is then engaged in drilling operations ..., this lease shall remain in force so long thereafter as Lessee ... is engaged in drilling operations ... with no cessation between operations or between such cessation of production and additional operations of more than ninety consecutive days.... ” Id. at 180. The lease form also contained a typewritten modified Pugh clause providing “[t]his lease shall continue in force and effect beyond the primary term and any continuous drilling operations in progress at the expiration thereof, as elsewhere provided herein, only as to that acreage for which production royalties are payable, even though there be one or more wells located upon the property described in this lease.” Id. at 179-80.

[¶22] After spacing units were established by the appropriate government entity for portions of the leased property, the lessees drilled one well in each of three different spacing units. About two months before the expiration of the primary term, the lessees spudded the Alston A-l well on September 20, 1983, and the well was completed on December 4, 1983. The Cook # 1 well was spudded on February 2, 1984, and completed on June 1, 1984. The Slack # 1 well was spudded on June 25, 1984. The lessor sued, alleging drilling operations were in progress only for the Alston well at the expiration of the primary term, and those operations served to maintain the lease only as to that portion of land located within the drilling and production unit for the Alston well. As to the remainder of the leased premises, the lessor argued the lease had expired. The lessees argued drilling operations on the Alston well before the primary term expired and continuous drilling operations thereafter on the Cook and Slack wells operated to maintain the lease in full force and effect as to all lands included in the spacing units for the three wells.

[¶ 23] The trial court in Roseberry granted summary judgment canceling the lease as to that portion of the leased premises outside the Alston unit. The court found, while the modified Pugh clause “was somewhat vague and ambiguous, the only logical interpretation that could be given to the clause was that it in effect divided the lease upon unitization.” Roseberry, at 181. The court also construed the term, “between operations,” in the continuous drilling operations clause to refer to multiple operations on a continuous drilling operation and not to multiple wells. The court concluded the acreage of the lease affected by the Alston well continued to be subject to the terms of the lease, but the remaining portions of the leased premises were no longer subject to the lease.

[¶ 24] The Louisiana Court of Appeals affirmed, concluding the trial court did not err in ruling the modified Pugh clause divided the lease between units, resulting in the partial cancellation of the lease despite the continuous drilling operations. The court found “without merit” the lessees’ argument that ongoing drilling operations in the Alston unit at the expiration of the primary term maintained the lease in full force and effect over all the leased acreage, and their continuous drilling operations on the leased acreage outside the Alston unit maintained the entire lease so long as no more than 90 days passed between completion of one well and commencement of operations on another well. Rosebei'ry, at 183. The court reasoned the lessees’ interpretation of the modified Pugh clause would defeat its purpose of insuring that the lessees “would diligently attempt to explore and develop all of the acreage encompassed within the lease.” Id.

[¶ 25] One judge dissented from the appellate court’s refusal to grant a rehearing:

The modified Pugh clause of this lease, by its own express terms, deals only with continuation of the lease beyond the primary term and any continuous drilling operations period and does not purport to divide the lease or modify its express terms as to continuation in force and effect of the entire lease during the primary term and any continuous drilling operations term....
Consequently, the lease in this case was continued in full force and effect during the period that the lessee was engaged in drilling operations on the Alston well which was commenced prior to the expiration of the primary term. The decisive issue in this ease, addressed by the parties in briefs but not addressed by this court’s opinion, is whether the lease continued in effect after completion of the Alston well and was further continued in effect by drilling operations on the Cook well which was commenced within 90 days after completion of the Alston well and by drilling operations on the Slack well which was commenced within 90 days after completion of the Cook well. The precise determinative issue is whether the drilling operations clause ... contemplates drilling operations on successive wells or is limited in its application to drilling operations on the particular well or wells in progress at the expiration of the primary term.

Roseberry, at 184 (Hall, J., dissenting) (emphasis in original).

[¶ 26] The Roseberry case has been critiqued in 1 Pooling and Unitization § 9.06, at pp. 9-18 — 9-19:

The Roseberry case shows the difficulties that can be caused by inserting typewritten clauses in oil and gas leases when they must interact with other printed provisions. While the holding of the principal case is not clearly incorrect, the reading of the modified Pugh clause by the dissenting judge would also appear to have merit, even proceeding from the rationale given by the majority of the court. The majority opinion states that the “obvious intent of the inserted typewritten clause was to insure that defendants would diligently attempt to explore and develop all of the acreage encompassed within the lease. The defendants’ interpretation of this clause would effectively defeat the purpose of the clause and would not be in accord with the clear intent of the parties.” Here the court seems a bit wide of the mark, because, with the dissenting judge’s reading of the clause, the provision would require that the defendants begin drilling within ninety days on outside acreage to keep the lease alive. The outside acreage could not be left idle even if the unit well were then producing. Thus, diligent exploration and development would also follow from the dissenting judge’s position....

(Footnote omitted). The Roseberry majority opinion tends to support Egeland’s position. The Roseberry dissenting opinion tends to support the defendants’ position.

[¶ 27] Turning to the Cenex leases at issue in this case, we agree with Egeland that the Commission’s forced pooling orders invoked the Pugh clause. However, we see no irreconcilable conflict between the Pugh clause and the habendum and continuous drilling operations clauses of the lease. The Pugh clause is silent about continuous drilling operations. We reject Egeland’s tortured construction that the leases could be extended “ONLY” by production. The language of the Pugh clause provides “[a] producing well” extends the lease “ONLY as to those lands” sharing in production. The word “ONLY” limits the lands held by production from a given well, not the methods for extending the lease. Construing the leases as a whole to give effect to each of their provisions, see Woodworth v. Chillemi, 1999 ND 43, ¶ 9, 590 N.W.2d 446, we conclude the Pugh clauses did not terminate the Cenex leases as to those lands not committed to a producing spacing unit on March 8, 1996, and the leases could still be extended by continuous drilling operations.

[¶28] It is undisputed that the Skull Creek well was producing and that drilling operations were ongoing on the Rocky, Monte, and Clayton wells before expiration of the primary term. The Schaefer well, however, was spudded and completed after expiration of the primary term. The Schaefer, Skull Creek and Rocky wells were drilled on land covered by the Ege-land-Cenex lease. The defendants argue the entire Egeland-Cenex lease was extended by production on the Skull Creek well and drilling operations on the Rocky well before expiration of the primary term, and the drilling operations on the Schaefer well within 60 days of the completion of the Rocky well. The defendants’ argument that the continuous drilling operations clause continues to operate lease-wide, even though the Pugh clause limits the operation and effect of the habendum clause to the confines of each spacing unit, finds support in the RosebeiTy dissent. The RosebeiTy majority, however, appears to hold the Pugh clause modifies both the habendum and continuous drilling operations clauses so the continuous drilling operations clause operates only within each spacing unit, rather than on a lease-wide basis.

[¶ 29] The language of the contract governs its interpretation if the language is clear and explicit and does not involve an absurdity. N.D.C.C. § 9-07-02. We construe, as a matter of law, the continuous drilling operations clause to apply to the primary five-year term of the lease if drilling is ongoing and not more than 60 days have elapsed between completion or abandonment of one well and beginning operations for a subsequent well, and construe the Pugh clause to apply after the expiration of the primary term as extended to the entire lease by the continuous drilling operations clause. The construction urged upon us by Egeland would have a chilling effect on the covenant of reasonable development implied in every lease, a covenant recognized by this Court at least as far back as 1949. See Hermon Hanson Oil Syndicate v. Bentz, 77 N.D. 20, 28, 40 N.W.2d 304, 308 (1949). If the lessee is required to reasonably develop the premises but, once having drilled a well to production on one spacing unit, is faced with the prospect of having the Pugh clause terminate the lease as to any other lands except those on which the lessee might be drilling when the primary term expires, the lessee is faced with either drilling on all possible spacing units at one time or forfeiting the lease on those spacing units on which drilling is not commenced at the expiration of the primary term. Presumably a lessee will be disinclined to continue to develop a lease if the non-drilled portion of the lease will expire regardless of development during the extended primary term.

[¶ 30] We know of no ease in this state holding the covenant of reasonable development requires drilling on every spacing unit in a lease simultaneously. Indeed, the construction urged on us by Ege-land punishes the lessee who has developed a producing well by the expiration of the primary term as compared with the lessee who has just commenced drilling the first well at the expiration of the primary term. Under Egeland’s construction of the effect of the Pugh clause, the lessee who has completed a producing well holds, in addition to the units containing producing wells, only the spacing units on which drilling operations have actually commenced at the expiration of the primary term. The lessee who has only commenced drilling a first well at the time of the expiration of the primary term would continue to hold the entire lease under the continuous drilling operations clause. We decline to construe the lease to reach such a result.

[¶ 81] We conclude the trial court correctly ruled the Cenex leases did not terminate under the circumstances of this case. We therefore affirm the judgment quieting title in the leases in the defendants.

C

[¶ 32] Egeland argues, if the leases are terminated, Continental, as operator of the wells, breached its fiduciary obligations to her and owes her back royalties. Because we have ruled the leases did not terminate, it is unnecessary for us to address this issue.

Ill

[¶ 33] The summary judgment is affirmed.

[¶ 34] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.

      . A habendum clause sets forth "the duration of the grantee's or lessee's interest in the premises.” 8 P. Martin & B. Kramer, Williams & Meyers Oil and Gas Law Manual of Terms, p. 479 (1999) ("Williams & Meyers”). See also Olson v. Schwartz, 345 N.W.2d 33, 36 (N.D.1984).

      . A continuous drilling operations clause provides that "a lease may be kept alive after the expiration of the primary term and without production by drilling operations of the type specified in the clause continuously pursued.” 8 Williams & Meyers, p. 208.

      . The defendants agree the first paragraph of Exhibit A "nullifies” a "unitization clause” contained in the leases, which provided in part "Lessor agrees that the lessee or assigns may include the land covered hereby, or any part thereof, in any unit plan of development or operation as designated or approved by any Federal Law, State Law, Executive Order, or rule or regulation prescribed by a Governmental body having jurisdiction thereof and lessor agrees to execute any such approved unit plan in order to make it effective as to the interests covered by this lease.”

      .A Pugh clause is "a type of pooling clause which provides that drilling operations on or production from a pooled unit or units shall maintain the lease in force only as to lands included within such unit or units.” 8 Williams & Meyers, p. 873. See also Olson, 345 N.W.2d at 41 n. 3 (Schneider, D.J., specially concurring).

      . Spacing and pooling are separate concepts. Amoco Production Co. v. North Dakota Industrial Commission, 307 N.W.2d 839, 849 (N.D. 1981). A pool is a reservoir, or a common source of supply, and constitutes a common accumulation of oil or gas, or both. See N.D. Admin. Code § 43-02-03-01(12) and (49). A spacing unit “is the area in each pool which is assigned to a well for drilling, producing, and proration purposes in accordance with the commission’s rules or orders.” N.D. Admin. Code § 43-02-03-01(52). "A spacing order standing alone without a pooling order does not operate as a de facto pooling of all fractional interests under the drillsite.... ” Schank v. North American Royalties, Inc., 201 N.W.2d 419, 422 (N.D.1972).

      . In its statement of facts, the court listed the completion date for the Alston A-l well as “December 4, 1984.” Roseberry, 470 So.2d at 180. In view of the parties' arguments and the dissenting judge's rationale in Roseberry, we believe the 1984 date is a typographical error.


author: AMUNDSON, Justice. SABERS, Justice KONENKAMP, Justice

text:
    2000 SD 120
    Christina CASAZZA, Plaintiff and Appellant, v. The STATE of South Dakota a Political Entity, Jeff Bloomberg, Secretary for the Department of Corrections of the State of South Dakota and Dwane Russell, Warden of the South Dakota Women’s Prison, Defendants and Appellees.
    No. 21217.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2000.
    Decided Aug. 30, 2000.

      Lee C. “Kit” McCahren of Olinger, Lo-vald, Robbennolt, McCahren and Reimers, Pierre, and Scott G. Hoy of Scott G. Hoy Law Office, Sioux Falls, Attorneys for plaintiff and appellant.
    Neil Fulton of May, Adam, Gerdes and Thompson, Pierre, Attorneys for defendants and appellees.
   AMUNDSON, Justice.

[¶ 1.] Christina Casazza (Casazza) appeals the granting of summary judgment in favor of State of South Dakota (State), Secretary for the Department of Corrections Jeff Bloomberg (Bloomberg), and Warden Dwane Russell (Russell) of the Women’s Prison based upon sovereign immunity and SDCL 3-21-8. We affirm.

FACTS

[¶ 2.] Casazza is an inmate at the South Dakota Women’s Penitentiary. Casazza alleged that in late August of 1998 she was raped by Martin Aponte (Aponte), who was employed as a prison guard. She claims that Aponte had been flirting with her in the past; however, on the day in question, Aponte approached her in the dishroom of the prison, kissed her and asked her to go into the bathroom with him. Casazza refused to go into the bathroom, but Aponte put his hand on her back and lead her into the inmate bathroom.

[¶ 3.] After entering the bathroom, Aponte closed and locked the door. Aponte proceeded to kiss Casazza again. Casazza claims she began to cry and was telling Aponte “no,” but he continued to kiss her and tell her that “it’s okay, they will know if I do something wrong.” Aponte then removed Casazza’s top shirt, pulled down her pants and panties and had sexual intercourse with her- Casazza also claimed that Aponte raped her again a couple days later and the same events occurred in the inmate bathroom.

[¶ 4.] Casazza brought suit against State, Bloomberg and Russell claiming negligent supervision, negligent training, negligent hiring and negligent failure to take action to prevent Aponte from making inappropriate advances towards Casazza. Aponte’s employment with the prison was ultimately terminated after investigations by the Department of Criminal Investigation (DCI), but he was never a party to this action.

[¶ 5.] Casazza provided evidence that Aponte’s advances toward her were public. Michelle Lyons (Lyons), a fellow inmate, testified that she saw Aponte with Casazza several times. Lyons claimed that she saw Aponte put his hands on Casazza by grabbing her butt, running his fingers through her hair and telling Casazza her hair was soft, and would whistle at her and tell her she had a nice butt. Lyons claimed that there were other complaints against Aponte, but nothing was ever done.

[¶ 6.] Russell testified that he became aware of Aponte’s conduct after intercepting a letter from an inmate to her boyfriend. Russell learned several inmate names from the letter and began an investigation which ultimately led to Aponte being terminated for kissing two inmates.

[¶ 7.] Prior to trial, State, Russell and Bloomberg moved for summary judgment. The trial court found that Russell’s and Bloomberg’s actions were discretionary, and therefore, sovereign immunity applied. The trial court also found that SDCL 3-21-8 applied as a basis for granting summary judgment. Casazza appeals, raising the following issues:

1. Is the State and its officers immune from suit for a failure to supervise a guard who raped a prisoner?
2. Is SDCL 3-21-8 unconstitutional?

STANDARD OF REVIEW

[¶ 8.] In reviewing a grant or a denial of summary judgment under SDCL 15 — 6— 56(c), we have often stated,

we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, . must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Dakota Cheese, Inc. v. Ford, 1999 SD 147, ¶ 15, 603 N.W.2d 73, 76 (quoting Campion

v. Parkview Apartments, 1999 SD 10, ¶ 22, 588 N.W.2d 897, 902 (quoting Wildeboer v. South Dakota Junior Chamber of Comm., 1997 SD 33, ¶ 9, 561 N.W.2d 666, 668 (citations omitted))). Further, summary judgment should be granted “ ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.’” Julson v. Federated Mut. Ins. Co., 1997 SD 43, ¶ 5, 562 N.W.2d 117, 119 (quoting Ford v. Moore, 1996 SD 112, ¶ 7, 552 N.W.2d 850, 852 (quoting SDCL 15—6—56(c))). Finally, summary judgment will be affirmed “ ‘only when there are no genuine issues of material fact and the legal questions have been correctly decided.’ ” Id. (quoting Ford, 1996 SD 112, ¶ 7, 552 N.W.2d at 852 (citing Bego v. Gordon, 407 N.W.2d 801, 804 (S.D. 1987))).

[¶ 9.] We are also faced in this case whether SDCL 3-21-8 is unconstitutional. “[Tjhere is a strong presumption that a statute is constitutional and the party challenging the constitutionality of a statute has the burden of proving beyond a reasonable doubt that the statute is unconstitutional.” Beals v. Pickerel Lake San. Dist., 1998 SD 42, ¶ 8, 578 N.W.2d 134, 135 (citing Kyllo v. Panzer, 535 N.W.2d 896, 898 (S.D.1995) (citing Specht v. City of Sioux Falls, 526 N.W.2d 727, 729 (S.D.1995))).

DECISION

[¶ 10.] 1. Is the State and its officers immune from suit for a failure to supervise a guard who raped a prisoner?

Sovereign Immunity

[¶ 11.] It is well-established under the common law and South Dakota Constitution that “the governing acts of the state, its agencies, other public entities, and their employees cannot be attacked in court without the state’s consent.” Hansen v. South Dakota Dep’t. of Transp., 1998 SD 109, ¶ 9, 584 N.W.2d 881, 881 (citing Wilson v. Hogan, 473 N.W.2d 492, 494 (S.D.1991) (citing S.D. Const. art. III, § 27; Blue Fox Bar, Inc. v. City of Yankton, 424 N.W.2d 915, 917 (S.D.1988))). Whether a state employee, who is sued in an individual capacity, is entitled to immunity depends upon “the function performed by the employee.” Kruger v. Wilson, 325 N.W.2d 851, 853 (S.D.1982) (citing High-Grade Oil Co. v. Sommer, 295 N.W.2d 736 (S.D.1980); Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d 454 (S.D.1980)).

[¶ 12.] To be considered immune from suit, an employee’s function must be discretionary, rather than ministerial. See id. at 854. The discretionary determination is made by considering the following factors:

(1) The nature and importance of the function that the officer is performing;
(2) The extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of the coordinate branch of government;
(3) The extent to which the imposition of liability would impair the free exercise of his discretion by the officer;
(4) The extent to which the ultimate financial responsibility will fall on the officer;
(5) The likelihood that harm will result to members of the public if the action is taken;
(6) The nature and seriousness of the type of harm that may be produced;
(7) The availability to the injured party of other remedies and other forms of relief.

Kyllo, 535 N.W.2d at 902 (citing National Bank of South Dakota v. Leir, 325 N.W.2d 845, 848 (S.D.1982) (citing Restatement (Second) of Torts § 895D, comment f (1979))).

[¶ 13.] Unlike discretionary acts which provide immunity to a state employee, a state employee who “ ‘fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such duty.’ ” Leir, 325 N.W.2d at 848 (quoting State v. Ruth, 9 S.D. 84, 90, 68 N.W. 189, 190 (1896)). This Court has previously defined ministerial acts as,

absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed designated facts or the execution of a set task imposed by a law prescribing and defining the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion, being a simple, definite duty arising under and because of stated conditions and imposed by law. A ministerial act envisions direct adherence to a governing rule or standard with a compulsory result. It is performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action. In short, once it is determined that the act should be performed, subsequent duties may be considered ministerial. If there is a readily ascertainable standard by which the action of the government servant may be measured, whether that standard is written or the product of experience, it is not within the discretionary function exception.

Hansen, 1998 SD 109, ¶ 23, 584 N.W.2d at 886 (citing 57 Am.Jur.2d Municipal, County, School & State Tort Liability § 120 (1988)) (emphasis in original).

[¶ 14.] In the present case, the trial court held:

I think it’s very clear that the jobs of the Secretary of Department of Corrections and the Warden of the Women’s Prison are discretionary, are essentially discretionary when it comes to the operation of the prison which, according to the Hansen case, would exempt them from liability for a negligence lawsuit which this is.
If that were not sufficient to warrant summary judgment in their favor, then SDCL 3-21-8 covers it also....
Well, I should indicate also that in making the ruling concerning summary judgment that I have specifically considered the seven aspects set out in the Kyllo case and find that the Warden and the Secretary’s jobs fit squarely in those.

Based upon this rationale, the trial court granted summary judgment in favor of Bloomberg, Russell and State.

[¶ 15.] Casazza argues that the supervision of Aponte is not discretionary. She further claims that by applying the seven factors cited in Kyllo, the supervisory acts are clearly ministerial. Casazza argues that clearly there is no specialized discretion utilized, by allowing this proceeding no judgment will be passed upon the conduct of a coordinate branch of government, no impairment of the free exercise of discretion by defendants would exist, no other remedies exist to allow Casazza relief, and if this case doesn’t proceed, the other inmates will certainly be harmed by the prison officials and guards being allowed to act with no restraint, prudence, caution or accountability. Casazza fails to cite to the part of the record which supports her assertions that the supervisory actions of Russell and Bloomberg are ministerial, rather than discretionary. She merely concludes that by applying the factors this Court set forth in Kyllo, the supervision of Aponte was ministerial. Casazza also fails to provide any authority as to what, if any, supervisory standards applied to Russell and Bloomberg in the employment or supervision of Aponte.

[¶ 16.] Under SDCL 15-6-56(e), “the opposing-party [must] be diligent in resisting a motion for summary judgment, and mere general allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment.” Hughes-Johnson Co., Inc. v. Dakota Midland Hosp., 86 S.D. 361, 364, 195 N.W.2d 519, 521 (1972) (citing Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013 (5th Cir.1967); Engl v. Aetna Life Ins. Co., 139 F.2d 469 (2d Cir.1943)). A review of this case shows that Casazza has failed to “present specific facts showing that a genuine, material issue for trial exists” in regards to the issue of sovereign immunity. See Dakota Cheese, 1999 SD 147, ¶ 15, 603 N.W.2d at 76. Instead, Casazza has only provided conelusory statements as to the ramifications to her fellow prisoners if her action is not allowed to proceed. While we believe the actions alleged against Aponte would be deplorable, our feelings for what Casazza possibly has gone through should not override our obligations on this appeal. Based upon our review of this case, we find that the trial court did not error in granting summary judgment in favor of Bloomberg, Russell and State on the grounds of sovereign immunity.

[¶ 17.] 2. Is SDCL 3-21-8 unconstitutional?

[¶ 18.] Based upon our disposition of issue one, we need not address this issue.

[¶ 19.] We affirm.

[¶ 20.] MILLER, Chief Justice, and GILBERTSON, Justice, concur.

[¶ 21.] SABERS and KONENKAMP, Justices, concur in part and concur specially in part.

SABERS, Justice

(concurring in part & concurring specially in part).

[¶ 22.] I concur in Issue 2 and concur specially in Issue 1.

[¶ 23.] The majority opinion is correct in asserting that the State “is immune from suit in state courts without legislative consent!].]” Bego v. Gordon, 407 N.W.2d 801, 806 (S.D.1987) (citations omitted). However, the legislature consented to suit in this case. The South Dakota Legislature established the Public Entity Pool for Liability (PEPL) fund, effective March 1, 1987. This fund is to provide a “sole source for payment of valid tort claims against all member public entities of the state and their officer and employees for all liability they may incur based upon negligence ... in performing ... acts within an employee’s scope of employment!].]” SDCL 3-22-1. The State is considered a “member, to the extent it elects to participate.” SDCL 3-22-2(9). Clearly, the State has conditionally waived sovereign immunity, but the extent thereof is a question of fact.

[¶ 24.] Under the principles of agency, the State is amenable to suit for the negligent actions or inactions of its employees:

Whether a principal will be held liable for the conduct of an agent is determined by the nexus between the agent’s employment and the activity which actually caused the injury. Liability will be imposed upon the principal when the nexus is sufficient to make the resulting harm foreseeable. In other words, if the agent’s employment puts him in a position where his harmful conduct would not be ‘so unusual or startling that it would be unfair to include the loss caused by the injury among the costs of the employer’s business,’ then the principal is liable for the injury.

Olson v. Tri-County State Bank, 456 N.W.2d 132, 135 (S.D.1990) (internal quotation omitted). Obviously, a nexus existed here between the defendant’s employment (to supervise the prison guards and protect the basic rights of inmates) and the activity causing the injury (a prison guard raping an inmate).

[¶ 25.] However, I concur specially because Casazza failed to establish that there was a genuine issue of material fact. There was testimony that some inmates complained about Martin Aponte’s tendency to sexually assault women within the prison before Casazza was even incarcerated. Yet, there was no showing, other than mere allegations, that any agents of the State were aware of these complaints:

Q: You indicated that complaints had gone out through [an inmate].
A: Uh-huh.
Q: Who were the persons specifically who made the complaints, if you recall?
A: I’m not sure.
Q: Okay. Were you a person who made complaints?
A: No.

[¶26.] There was also testimony from one inmate who stated that she sent five letters to state legislators and state senators referring to “specific incidences with Martin Aponte and his behavior.” However, she further testified that she did not have any information about Aponte’s raping inmates, but simply accused Aponte of bringing contraband into the prison facilities. In fact, she testified that at the time she wrote the letters, she had no information about sexual contact by Aponte with inmates. Even these letters are not in the record.

[¶ 27.] Clearly, all of the allegations that complaints of sexual contact were made to prison personnel were unsubstantiated and there was no showing that these complaints were communicated to any of the defendants or anyone responsible to report to them.

[¶ 28.] In summary, there was no showing that genuine issues of material fact existed and summary judgment should be affirmed.

KONENKAMP, Justice

(concurring in part & concurring specially in part).

[¶ 29.] On Issue 1, I concur with Justice Sabers’ special writing to the extent that the plaintiff has failed to show that corrections authorities were aware of any prisoner complaints about the guard’s sexual assaults. I concur with the majority on Issue 2.

      . It is interesting to note that under SDCL 24-1-26.1 (1998),
      Any person, employed by the state, or employed within any state prison or other detention facility, who knowingly engages in an act of sexual penetration with another person who is in detention and under the custodial, supervisory, or disciplinary authority of the person so engaging, is guilty of a Class 6 felony.

      . Under SDCL 3-21-8,
      No person, political subdivision or the state is liable for failure to provide a prison, jail or penal or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel, programs, facilities or services in a prison or other correctional facility.

      . A review of the record reflects that Casazza made a motion to amend her complaint. At the summary judgment hearing, Casazza informed the court of her desire to amend the complaint to include more defendants and possibly add a claim under 42 U.S.C. § 1983. Neither inclusion was ever made. If Casazza would have brought a § 1983 action, she may have had a better foundation for her suit than under the negligence theory she pled in this case. See, e.g., DeFoor v. Rotella, 2000 WL 305478 (10th Cir.2000) (addressing a 42 U.S.C. § 1983 action against two guards at the jail who allegedly raped an inmate, rejecting guards immunity claim and finding that "the law was clearly established that an inmate has a constitutional right 'to be secure in her bodily integrity and free from attack by prison guards' ”); Giron v. Corrections Corp. of America, 191 F.3d 1281 (10th Cir.1999) (stating in a 42 U.S.C. § 1983 action brought by an inmate against Corrections Corporation of America (CCA) and warden for her alleged rape that "the rape of an inmate by another inmate, sexual abuse of a prisoner by a corrections officer has no legitimate penological purpose, and is ‘simply not part of the penalty that criminal offenders pay for their offenses against society' ”). See also Hart v. Miller, 2000 SD 53, 609 N.W.2d 138 (allowing a § 1983 action to proceed against a police officer based upon his allegedly "leering and provocative look”).