Volume 118 — Washington Reports, Second Series

<bold>[1] Waters — Water Rights — Appropriation — Permits —</bold> <bold>Administrative Discretion.</bold> The Department of Ecology's decision to issue a water appropriation permit under RCW <cross_reference>90.03.290</cross_reference> is reviewed under the abuse of discretion standard. <bold>[2] Administrative Law — Judicial Review — Abuse of Discretion —</bold> <bold>What Constitutes.</bold> An administrative agency abuses its discretionary authority by exercising its discretion in a manner that is manifestly unreasonable or on untenable grounds or for untenable reasons. <bold>[3] Administrative Law — Judicial Review — Question of Law —</bold> <bold>Standard of Review.</bold> An appellate court may substitute its determination of an issue of law for that made by an administrative agency, although the agency's interpretation of the law is entitled to substantial weight. <bold>[4] Waters — Water Rights — Appropriation — Scope of Right.</bold> Once a holder of a water right diverts water and brings it under control and possession, the holder of the water right owns the water as personal property. <bold>[5] Waters — Water Rights — Irrigation Water — Rights in Waste,</bold> <bold>Seepage, or Return Flow Water.</bold> A holder of a water right who appropriates water and uses it for irrigation retains the right to recapture and reuse the waste, seepage, or return flow water left over after the irrigation. <bold>[6] Waters — Water Rights — Appropriation — Duration —</bold> <bold>Boundaries of Appropriator's Property — Effect.</bold> An appropriator of water retains its right to use the water so long as the water remains within the boundaries of the appropriator's property. Only when the water has left the boundaries of the appropriator's property does the appropriator's right to the water depend on the appropriator's intent to recapture the water, whether downstream on another piece of property or otherwise.<page_number>Page 762</page_number> <bold>[7] Waters — Water Rights — Irrigation Water — Federal</bold> <bold>Irrigation Project — Decisionmaking Authority.</bold> Only federal agencies and those entities with whom they contract have authority to make decisions regarding the distribution of water within a federal irrigation project.

<bold>[1] Criminal Law — Punishment — Sentence — Criminal History —</bold> <bold>"Same Criminal Conduct" — Test.</bold> Under RCW 9.94A.400(1)(a), both before and after its 1987 amendment, multiple crimes do not encompass the same criminal conduct for purposes of calculating an offender score unless the crimes: (1) involved the same objective criminal intent, which can be determined by analyzing whether one crime furthered the other; (2) were committed at the same time and place; and (3) involved the same victim.<page_number>Page 774</page_number> <bold>[2] Criminal Law — Punishment — Sentence — Criminal History —</bold> <bold>"Same Criminal Conduct" — Central Victim — In General.</bold> A criminal defendant who committed multiple crimes against multiple victims cannot claim that there was only one central victim of the crimes; the crimes therefore do not encompass the same criminal conduct under RCW 9.94A.400(1)(a). <bold>[3] Criminal Law — Punishment — Sentence — Criminal History —</bold> <bold>"Same Criminal Conduct" — Burglary — Antimerger Statute —</bold> <bold>Effect.</bold> When a criminal defendant commits a burglary and one or more additional crimes that encompass the same criminal conduct under RCW 9.94A.400(1)(a), the sentencing court has discretion to apply the burglary antimerger statute (RCW <cross_reference>9A.52.050</cross_reference>) by imposing separate punishments for all the crimes. [<italic>Dictum.</italic>]

<bold>[1] Appeal — Review — Issues Raised by Amici Curiae — Settled</bold> <bold>Law.</bold> An appellate court may consider an issue raised only by an amicus curiae if the issue concerns the application of well settled principles of law. <bold>[2] Municipal Corporations — Ordinances — Validity — Preemption</bold> <bold>— Test.</bold> Under Const. art. 11, § 11, a local ordinance is not preempted by a state statute that prohibits the same conduct the ordinance prohibits so long as (1) the state statute was not intended to be exclusive and leaves room for concurrent jurisdiction and (2) the ordinance and statute do not directly and irreconcilably conflict. <bold>[3] Municipal Corporations — Ordinances — Validity — Preemption</bold> <bold>— By Implication — Determination.</bold> In determining whether the Legislature's intent to preempt a field is necessarily implied, a court will evaluate the purposes of the statute and the facts and circumstances upon which the statute was intended to operate. <bold>[4] Municipal Corporations — Ordinances — Validity — Preemption</bold> <bold>— Express Grant of Concurrent Jurisdiction.</bold> The Legislature does not intend to preempt a field if its statute expressly grants some measure of concurrent jurisdiction to local governments. <bold>[5] Municipal Corporations — Ordinances — Validity — Preemption</bold> <bold>— Conflict — Test.</bold> For purposes of determining whether a local ordinance is preempted by a state statute, the ordinance and statute do not conflict unless (1) the ordinance permits or licenses that which the statute forbids and prohibits<page_number>Page 827</page_number> or (2) the statute permits or licenses that which the ordinance forbids and prohibits. <bold>[6] Criminal Law — Statutes — Vagueness — Precedential Law —</bold> <bold>Similarity of Language and Structure.</bold> To determine the appropriate precedents applicable to a challenge to a criminal statute for vagueness, a court must analyze the linguistic and structural similarity between the statutory language challenged and the statutory language reviewed in earlier cases. <bold>[7] Criminal Law — Statutes — Overbreadth — Precedential Law —</bold> <bold>Similarity of Language and Structure.</bold> To determine the appropriate precedents applicable to a challenge to a criminal statute for overbreadth, a court must analyze the linguistic and structural similarity between the statutory language challenged and the statutory language reviewed in earlier cases. <bold>[8] Criminal Law — Statutes — Overbreadth — Constitutionally</bold> <bold>Protected Conduct.</bold> A legislative enactment that criminalizes certain behavior is not unconstitutionally overbroad on its face unless it prohibits a real and substantial amount of constitutionally protected conduct. <bold>[9] Criminal Law — Statutes — Validity — Limiting Construction.</bold> A legislative enactment is not unconstitutional if a reviewing court is able to construe it so as to make it fall within constitutional boundaries. <bold>[10] Criminal Law — Statutes — Overbreadth — Standing To</bold> <bold>Challenge — Effect on Constitutionally Protected Conduct.</bold> A criminal enactment is subject to a challenge for facial overbreadth if it chills or burdens constitutionally protected conduct. The fact that a criminal defendant's conduct falls within the "hard core" of the criminal prohibition does not prevent the defendant from raising such a challenge. <bold>[11] Vagrancy — Loitering — Validity — Overbreadth.</bold> A criminal loitering prohibition is not unconstitutionally overbroad if it requires a specific intent to engage in an illicit act. <bold>[12] Controlled Substances — Drug Loitering — Validity —</bold> <bold>Overbreadth.</bold> A legislative enactment making drug loitering a crime is not unconstitutionally overbroad if it prohibits loitering with the intent of soliciting, enticing, inducing, or procuring another person to exchange, buy, sell, or use illegal drugs or drug paraphernalia. <bold>[13] Criminal Law — Statutes — Vagueness — Due Process</bold> <bold>Requirements.</bold> Due process requires that criminal statutes define prohibited conduct with sufficient specificity to put<page_number>Page 828</page_number> persons on notice of what conduct they must avoid and contain sufficient standards to prevent arbitrary and discriminatory law enforcement. <bold>[14] Criminal Law — Statutes — Vagueness — Facial Invalidity —</bold> <bold>Presumption.</bold> When challenged as vague on its face, a criminal enactment is presumed to be constitutional. <bold>[15] Criminal Law — Statutes — Vagueness — Facial Invalidity —</bold> <bold>Limiting Construction.</bold> A criminal enactment is not facially vague if it is susceptible to a constitutional interpretation. <bold>[16] Criminal Law — Statutes — Vagueness — Facial Invalidity —</bold> <bold>Standing.</bold> The fact that a criminal defendant's conduct falls within the "hard core" of a criminal prohibition does not prevent the defendant from challenging the prohibition as vague on its face. <bold>[17] Criminal Law — Statutes — Vagueness — Sufficient</bold> <bold>Definiteness.</bold> A criminal enactment is too vague to satisfy due process if persons of common intelligence are required to guess at its meaning and differ as to its application. <bold>[18] Controlled Substances — Drug Loitering — Validity —</bold> <bold>Vagueness.</bold> A legislative enactment making drug loitering a crime is not unconstitutionally vague if it prohibits, in addition to loitering, overt conduct that is (1) for the purpose of engaging in illegal drug-related activity and (2) commonly associated with illegal drug-related activity, such as soliciting, enticing, inducing, or procuring another person to exchange, buy, sell, or use illegal drugs or drug paraphernalia. <bold>[19] Criminal Law — Statutes — Vagueness — Enforcement —</bold> <bold>Subjective Evaluation.</bold> The fact that a police officer must make a subjective evaluation to determine if a criminal violation has occurred does not necessarily mean that the enactment defining the crime lacks adequate standards to guide law enforcement. The test is whether the terms defining the standards for a violation are inherently subjective in the context in which they are used. <bold>[20] Criminal Law — Review — Issues Not Raised in Trial Court —</bold> <bold>Sufficiency of Evidence.</bold> The issue of the sufficiency of the evidence to support a criminal conviction is of constitutional magnitude and may be raised for the first time on appeal. <bold>[21] Criminal Law — Trial — Taking Case From Jury — Sufficiency</bold> <bold>of Evidence — In General.</bold> Evidence is sufficient to support a criminal conviction if any rational trier of fact, viewing<page_number>Page 829</page_number> the evidence most favorably toward the State, could find that the essential elements of the crime were proved beyond a reasonable doubt. <bold>[22] Criminal Law — Crimes — Elements — Intent — Proof —</bold> <bold>Inference.</bold> Criminal intent may be inferred from circumstantial evidence. <bold>[23] Statutes — Emergency Clause — Validity — Test.</bold> An emergency clause in a legislative enactment is valid unless it is obviously false and a palpable attempt at dissimulation. In determining the truth or falsity of a legislative declaration of an emergency, a court will consider only what appears on the face of the enactment, apart from facts, as aided by judicial knowledge. ANDERSEN, J., concurs in the result only; GUY, J., did not participate in the disposition of this case.