February 12, 2001
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Kanabec County Board Kanabec County Courthouse 18 North Vine Street Mora, MN 55051 |
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RE: In the Matter of the Appeal of the Trespass Civil Citation #43701
Issued to Jason Scotty Ives; OAH Docket No. 9-2000-14039-2
TO THE BOARD:
This matter came on for hearing on January 12, 2001 by telephone conference call initiated by the Administrative Law Judge. Participating in the hearing were Deputy Tom Knickerbocker on behalf of Kanabec County Sheriff’s Office and Jason Scotty Ives, who was issued the trespass civil citation #43701. The complaining landowner, James Allen Black was not available to testify at this hearing. Mr. Ives called two witnesses, James S. Ives and Byron Lester Dosterhost, who provided testimony under oath. As a result of the facts elicited at the hearing, I am recommending to you that the trespass civil citation issued to Jason Scotty Ives be dismissed and the $50.00 fine which he paid be returned to him. The basis for this recommendation is set forth below.
At approximately 9:30 a.m. on November 5, 2000, Jason Scotty Ives was hunting in a state owned wildlife management area located near the property of James Allen Black at 1527 220th Avenue in Mora, Kanabec County, Minnesota. Mr. Ives shot a deer on the wildlife management area. The deer was quite large and difficult to drag. Mr. Black’s property is located adjacent to the wildlife management area. Mr. Ives had previously hunted with Mr. Black. On that previous occasion, Mr. Black had assisted Mr. Ives in the removal of a deer from the wildlife management area. There is an access driveway from Mr. Black’s property to the wildlife management area. On November 5th, Mr. Ives walked from the wildlife management area across Mr. Black’s property, to the front door of his residence in an effort to seek his permission to remove the deer over his property. Mr. Ives proceeded to Mr. Black’s front door and rang the bell two times. No one answered the door. Mr. Ives returned to the wildlife management area to inform his hunting party that they would have to drag the deer over the wildlife management area because the property owner was not available to give them permission to remove the deer over his private land. Mr. Ives’ hunting party then proceeded to drag the deer over the wildlife management area.
At approximately that same hour, Mr. Black contacted the Kanabec County Sheriff’s Department to report that he has seen a hunter wearing blaze orange walking around his private property by the outbuildings located approximately 50 to 75 feet south of his residence. The wildlife management area is located to the north and east of Mr. Black’s residence. Deputy Tom Knickerbocker, from the Kanabec County Sheriff’s Office was dispatched to Mr. Black’s residence at 1527 220th Avenue in Mora. Mr. Black informed Deputy Knickerbocker that he had observed a hunter in blaze orange walking around his outbuildings to the south of his property, and that he had not provided permission to anyone to hunt on his property. He further informed Officer Knickerbocker that he had later confronted a group of hunters including Jason Ives' brother, Jim Ives and first accused Jim Ives of trespassing on his property without permission. Jim Ives denied any trespass. Mr. Black took down several license plate numbers parked in the vicinity of the wildlife management area and provided the information to Deputy Knickerbocker. One of the vehicle license plate numbers was 778-LBG and was registered to Jason Scotty Ives. Later that day, Jason Ives spoke with Mr. Black and Mr. Black's brother who had also been hunting in the wildlife management area. Jason Ives informed Mr. Black that he had walked to Mr. Black's front door to seek permission to remove the dead animal across his property, but when no one was at the residence, he left by way of the driveway. Mr. Black and his brother expressed dissatisfaction with Mr. Ives explanation. Mr. Black’s brother was upset because he claimed to have fired a shot at the same deer and disputed Mr. Ives claim to it. After some discussion, Mr. Black’s brother acknowledged that Mr. Ives had made a good shot and they shook hands. Mr. Black indicated that he was still going to file a complaint of trespass claiming it was unreasonable for Mr. Ives to be walking around his outbuildings to the south. Mr. Ives denied walking around Mr. Black’s outbuildings.
Several days later, Jason Scotty Ives met with Deputy Knickerbocker at the Kanabec County Sheriff’s Department. He brought in his jacket that he was wearing on the date of the incident which was not blaze orange, but a camouflage orange. He explained to Deputy Knickerbocker that he did not hunt on Mr. Black’s property nor did he trespass. He explained that he entered the property unarmed, by walking over the driveway to seek permission to drag the deer across the private property. Mr. Ives then paid the $50.00 fine and indicated his desire to appeal the trespass civil citation. On November 12, 2000, Mr. Ives filed his appeal to the Commissioner of Natural Resources requesting a hearing. On December 21, 2000, a Notice of Hearing was issued scheduling the hearing to be held on January 12, 2001.
Minn. Stat. § 97B.001, subd. 3, prohibits remaining on land for recreational purposes after the landowner gives oral notice that the person is trespassing. Section 97B.001 subd. 4(a) states in pertinent part:
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.[1]
In this case, Mr. Ives did not see a “No Hunting” sign posted. Nor did he enter Mr. Black’s property for outdoor recreation purposes. He did attempt to obtain permission from Mr. Black to remove a dead deer across his land to avoid dragging it an additional 150 to 200 yards across the wildlife management area. When Mr. Black could not obtain such permission, Mr. Ives immediately left the private property and proceeded to drag the animal over the state owned wildlife management area. At no time did Mr. Ives trespass as that term is defined in Minn. Stat. § 97B.001, subd. 3 and 4. Entering onto private property by way of a driveway, unarmed, to seek permission from a landowner to access the private property, does not constitute a civil trespass. There was no intent to enter onto the private property for outdoor recreation purposes.
The landowner, Mr. Black, did not testify at this hearing. The testimony provided by Officer Knickerbocker was based on information that he was told by the landowner. The testimony provided by Mr. Ives and his witnesses are credible and the Administrative Law Judge accepts their testimony as truthful with respect to the purpose of Mr. Ives entry onto Mr. Black's property. Jason Ives testified under oath that he did not walk around Mr. Black’s outbuildings to the south of his residence. There was testimony that there were quite a few hunters hunting in the vicinity of the state wildlife management area on November 5th. Mr. Black’s observation of a hunter in blaze orange by his outbuildings could be a case of mistaken identity. It is possible that some other hunter may have accessed his land. There is no evidence to support a finding that Jason Scotty Ives committed an intentional trespass in this case. I THEREFORE RECOMMEND that the citation be DISMISSED and the $50.00 fine paid by Jason Scotty Ives be returned to him.
The law provides that the final decision in this type of matter must be made by the Commissioner or County Board. Since the citation originated from the County, the final decision rests with the Kanabec County Board. Under Minn. Stat. § 116.072, subd. 6, the County Board must wait at least five days after receipt of this recommendation before making that final decision. The parties may, within that five days make any comments to the County Board to the recommendation under consideration. The law does not require, however, that either party make comments. The County Board must send a copy of the final decision to Jason Scotty Ives.
Respectively submitted,
PHYLLIS A. REHA
Administrative Law Judge
Telephone: 612/341-7602
PAR: aws
cc: Pat Watts, DNR
Colonel William C. Bernhjelm
Jason Scotty Ives
Deputy Tom Knickerbocker