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Colonel William C. Bernhjelm, Director Division of Enforcement Minnesota Department of Natural Resources 500 Lafayette Road St. Paul, Minnesota 55155-4047
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RE: In the Matter of the Appeal of the Trespass Citations Issued to Tim Allan McClure, Mark John Ruesch, and Bradley Rolland Wendland, OAH Docket Nos. 11-2000-13238, 13239, and 13240-2; Trespass Civil Citation Nos. 42201, 42202, and 42203
Dear Colonel Bernhjelm:
The above-entitled matter came on for a prehearing telephone conference call on November 28, 2000, at 10:30 a.m. Participating in the telephone conference call were the undersigned Administrative Law Judge, Conservation Officer Michael T. Gruhlke, and the Respondents, Tim Allan McClure, Mark John Ruesch, and Bradley Rolland Wendland. All participants agreed that no formal hearing would be needed and that I could decide the matter based upon what was discussed during the telephone conference call. They also agreed that it was appropriate to consolidate these three matters since the three citations involved the same incident. The record remained open until December 15, 2000, for the receipt of a response from the Respondents to materials submitted by the Conservation Officer.
I have reviewed the facts and the law, and recommend that the citations be AFFIRMED. I am persuaded that the Department of Natural Resources has established by a preponderance of the evidence that the Respondents were trespassing in violation of Minn. Stat. § 97B.001 while hunting on the Clark property on October 21, 2000, and that imposition of a civil penalty of $50 for that trespass is appropriate under Minn. Stat. § 97B.002, subd. 2. I find specifically that the requests for hearing were not frivolous or made for purposes of delay. The basis for this recommendation is set forth below.
January 12, 2001
Page Two
The facts in this matter are found to be as follows. Jerald Clark is the authorized manager of a 40-acre plot north of County Road 4 in Jackson County (Minneota Section 30) that consists of partially agricultural land and partially non-agricultural property. The plot is split by a creek, and there is agricultural land on either side of the creek bed. On October 21, 2000, Mr. McClure, Mr. Ruesch, and Mr. Wendland were hunting together in Jackson County. They had permission to hunt on Larry Sather’s land, which is adjacent to the Clark property and is well-posted. While walking along the creek bed, the Respondents entered the Clark property without realizing that they had entered a new piece of property, since there is no distinct property line. They did not see a “no trespassing” sign in the corner where they entered the property. The three Respondents had hunted on the property before and had never seen any “no trespassing” signs. They believed that they were still on Larry Sather’s land. They agreed that agricultural land was located along either side of the creek bed where they were walking. After Mr. Clark confronted the Respondents and accused them of trespassing, they left the property.
At approximately 3:00 p.m. on October 21, 2000, Conservation Officer Gruhlke received a call from his dispatcher notifying him that Mr. Clark had complained that three individuals were trespassing on his property. Mr. Clark provided the license number of the truck the Respondents were driving. Mr. Gruhlke saw the vehicle shortly thereafter and talked to the Respondents. Mr. Gruhlke also spoke to Mr. Clark about the situation. Mr. Clark signed a statement in which he declared that the land in question was either agricultural land or was posted on the corners and primary access points on October 7, 2000, and that the Respondents did not have his permission to enter the property.[1] Mr. Gruhlke observed one tire on the property that said “no trespassing” and was posted in the vicinity of the creek bed, but did not walk to the “back end” of the property to verify that there was a sign at that location. Mr. McClure testified that there was no signature on the “no trespassing” sign located on the tire in front of Mr. Clark’s property. Mr. Gruhlke later issued trespass citations to the Respondents on the ground that they had entered private land without permission in violation of Minn. Stat. § 97B.001, subd. 4(a).
January 12, 2001
Page Three
Ruesch went back to the property the week after he received the citation, he did not see any signs posted on the corners of the property.
The Administrative Law Judge is convinced that the Respondents did not know that they had entered the Clark property, did not intend to trespass, and did not see any “no trespassing” signs before they entered the property. The civil trespass statute does not, however, require that individuals intend to trespass in order for a trespass citation to be properly issued or require that “no trespassing” signs be visible for a citation to issue. The civil trespass statute specifies that, except to retrieve wounded game or hunting dogs, “a person may not enter agricultural land for outdoor recreation purposes, without first obtaining permission of the owner, occupant, or lessee.” The statute further specifies that, except to retrieve hunting dogs, “a person may not enter, for outdoor recreation purposes, any land that is posted under this subdivision without first obtaining permission of the owner, occupant, or lessee.”[4] The statute provides that the owner, occupant, or lessee of private land may prohibit outdoor recreation on the land by posting “no trespassing” signs once each year.[5] As long as the signs are posted once each year, the statutory requirement is met. Thus, there is no requirement that the signs continue to be visible at the time the trespass citation is issued. Moreover, it is evident under the statute that “corners only accessible through agricultural land need not be posted.”[6]
Here, the areas on each side of the creek bed were admittedly agricultural in nature and were not required to be posted. In addition, the manager of the property signed a statement declaring that the required posting had been made, and the Conservation Officer noticed at least one sign while he was present on the property. It appears from the later photographs taken by the Conservation Officer that the “no trespassing” letters on the tire were at least two inches high, since the letters cover the rim of the tire. Even if the signature had been detached from the sign and even if other signs on the property were no longer visible, the posting is effective under the statute if it is made once a year. Moreover, the fact that the Respondents testified that the Larry Sather property on which they had permission to hunt was well-posted suggests that they should have known when they left the Sather property. Those engaged in outdoor recreational activities are responsible for ensuring that they do not trespass on agricultural or posted private land.
January 12, 2001
Under the circumstances, I recommend that the citations be affirmed. I am closing our file in this matter, and returning the record to you. 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 days after receipt of this recommendation before he makes that final decision and permits Mr. McClure, Mr. Wendland, and Mr. Ruesch to make any comments to him on the recommendation within that five-day period.[7] The Commissioner must send a copy of his final decision to Mr. McClure, Mr. Wendland, and Mr. Ruesch.
Respectfully submitted,
BARBARA L. NEILSON
Administrative Law Judge
Telephone: 612/341-7604
Enclosure
cc: Tim McClure
Bradley Wendland
Mark Ruesch
Mike Gruhlke