June
20, 2000
|
Colonel
Leo W. Haseman, Director Division
of Enforcement MN
Department of Natural Resources 500
Lafayette Road St.
Paul, MN 55155-4047 |
|
RE: In the Matter of the Appeal of
the Trespass Citation Issued to Keith Patrick Tschida; Trespass Civil
Citation #15648; OAH Docket No. 11-2000-12829-2
Dear Colonel Haseman:
On
June 13, 2000, a prehearing conference was held in this matter. Participating in the telephone conference
call were Keith Tschida, Conservation Officer Jason Jensen, and the undersigned
Administrative Law Judge. After
discussing the facts and circumstances surrounding this matter, it was agreed
that no formal hearing would be needed and that I could decide the matter based
upon the discussion during the prehearing conference. I have reviewed the facts and the law and recommend that the
citation be AFFIRMED.
In late February, 2000, Mr.
Tschida and a group of other snowmobilers left a snowmobile trail and traveled
across an alfalfa field owned by a private landowner. The landowner obtained the registration numbers of the
snowmobiles, one of which belonged to Mr. Tschida. The landowner gave Conservation Officer Jason Jensen the
registration numbers. Mr. Jensen traced
the registrations and issued three civil citations, including one to Mr.
Tschida. The alfalfa field was posted
with some signs indicating that no snowmobiling was allowed, but Mr. Jensen
acknowledged that the signs might have been hard to see and did not contend
that they were posted as frequently as required by statute. However, the field was an agricultural
field. Minn. Stat. § 97B.001, subd. 2,
specifies that, with certain exceptions not relevant here, “a person may not
enter agricultural land for outdoor recreation purposes, without first
obtaining permission of the owner, occupant, or lessee.” Accordingly, it was not necessary for the
land to be posted.
June 20, 2000
Page Two
Mr.
Tschida was not familiar with the area and does not recall seeing any “no
snowmobiling” signs. He agreed that it
was possible that he traveled on the field at issue, but stressed that it was
inadvertent and he was following other snowmobile tracks. He submitted a letter after receiving the
citation in which he apologized to the DNR officers and the farmer, indicated
that he used to live on a farm and would never intentionally travel on an
agricultural field, and emphasized that he was not aware that he had left the
trail and gone into the field. Mr. Jensen
recommended that the citation stand rather than issuing a warning, since crop
damage can result from the snowmobile traffic.
Accordingly, the matter could not be resolved at the prehearing
conference and it was agreed that I could decide the matter based upon the
discussion during the conference call.
Based upon the testimony, it appears that the land at issue was “agricultural land” within the meaning of Minn. Stat. § 97B.001, subd. 1, and that Mr. Tschida inadvertently drove his snowmobile off the approved trail onto the land without first obtaining permission. Winter sports such as snowmobiling are included within the definition of “outdoor recreation” within the meaning of Minn. Stat. § 97B.001, subd. 1a. The statute does not require that trespass be intentional in order for a civil citation to issue. Those using recreational vehicles are responsible for ensuring that they do not trespass on agricultural land. Accordingly, Mr. Tschida was in violation of Minn. Stat. § 97B.001, subd. 2, when he entered upon the agricultural land without first obtaining permission. The Conservation Officer has the discretion to decide to issue a written citation rather than a verbal warning. The citation issued to Mr. Tschida was, therefore, validly issued.
The
law provides that the final decision in this matter must be made by the
Commissioner (or his designee). The law
further requires that the Commissioner must wait at least five (5) days after
receipt of this recommendation before he makes the final decision. Mr. Tschida may, during that five (5) day
period, comment to the Commissioner on this recommendation, and the
Commissioner must consider the comments.
Once the Commissioner has made his final decision in this matter, a copy
of that decision must be served upon Mr. Tschida and the Administrative Law
Judge.
June 20, 2000
Page Three
I am
closing our file in this matter and returning the record to you.
Respectfully
submitted,
BARBARA
L. NEILSON
Administrative
Law Judge
Telephone:
612/341-7604
cc: Keith Tschida
Jason Jensen