January 24, 2002
|
Col.
William C. Bernhjelm, Director |
|
RE: In the Matter of the Appeal of
the Trespass Citation Issued to Roger Ives Nelson; Trespass Civil Citation
No. 44942; OAH Docket No. 11-2000-14622-2
Dear Colonel Bernhjelm:
On
January 23, 2002, a prehearing conference was held in this matter. Participating in the telephone conference
call were Roger Nelson, Conservation Officer Timothy Jenniges, 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.
On October 19, 2001, Mr.
Nelson and his sons, Galen and Patrick, were hunting pheasants in the Waterfowl
Production Area in Cottonwood County near Windom. The Waterfowl Production Area is owned by the Federal Government
and is open to public hunting. The
property adjoining the Waterfowl Production Area is privately owned by a couple
whose last name is Schultz. The Schultz
property is hilly and overlooks a lake.
The Schultz property is enrolled in the federal Conservation Reserve
Program (“CRP”). As a consequence, it
has been taken out of rotation for crop planting and remains idle, with native
grasses growing on it. Mark Hall leases
hunting rights on the Schultz property.
While hunting in the Waterfowl Production Area,
Roger Nelson inadvertently crossed onto the Schultz property by walking through
an open gate in a barbed wire fence that separated the Waterfowl Production
Area from the Schultz property. A
pathway was worn into the ground where the gate was located and there were not
any “no trespassing” signs posted at the gate.
The four-strand barbed wire fence separating the Waterfowl Production
Area from the
Letter to Colonel Bernhjelm
January 24, 2002
Page Two
Schultz property was the same type of fence that was present elsewhere within the Waterfowl Production Area. The topography of the Schultz property is indistinguishable from that of the Waterfowl Production Area. Although there were signs that were visible from the Schultz property looking toward the Waterfowl Production Area stating, “Waterfowl Production Area – Open to Public Hunting,” those signs were not visible to Mr. Nelson as he walked from the Waterfowl Production Area onto the Schultz property. Consequently, Mr. Nelson did not realize that he had walked onto private property.
Once on the Schultz property, Mr. Nelson discovered that his son, Galen, had also entered the Schultz property in an attempt to retrieve a pheasant that he had wounded. Mr. Nelson tried to help Galen find the wounded pheasant on the Schultz property and also proceeded to hunt for additional pheasants on that property. He did not realize that he had entered private property until Mr. Hall noticed the hunters and confronted the hunting party. During his confrontation with Mr. Nelson, Mr. Hall initially said that he did not have to post signs, later said he had posted the signs “during the summer,” and finally said he had posted the signs “this summer a week before the season started.” The Sheriff’s Department and Conservation Officer Jenniges were summoned by Mr. Hall. On October 29, 2001, Conservation Officer Jenniges issued civil trespass citations to Mr. Nelson and Galen Nelson and a warning to Patrick Nelson (who is 15 years old) when he was unable to persuade Mr. Hall to drop the matter. Because Galen Nelson apparently did not file a timely appeal, the citation issued to Roger Nelson is the only citation at issue in this proceeding.
Although blank sign boards
were posted at the proper intervals along the barbed wire fence separating the
Waterfowl Production Area from the Schultz property, none of them bore “no
trespassing” signs on the date in question (October 19, 2001). Mr. Hall told Mr. Jenniges that he had, in
fact, posted “no trespassing” signs within the past year along the fence
line. He showed Mr. Jenniges the type
of sign he had used, which complied with statutory requirements concerning the
size of the letters and content of the sign.
Although the staples on the blank sign boards were quite rusty, they
were not so rusty as to suggest to Mr. Jenniges that the signs could not have
been posted within the past year.*
Letter to Colonel Bernhjelm
January 24, 2002
Page Three
Mr.
Nelson agreed that he had entered private property, but stressed that it was
inadvertent and he was following a well-traveled path through an open
gate. He indicated that he grew up on a
farm and was a longtime hunter who would never intentionally trespass on
agricultural land, and emphasized that he was not aware that he had left the
Waterfowl Production Area. Mr. Jenniges
was sympathetic to Mr. Nelson’s circumstances and the difficulty he would have
in discerning that the Schultz property was not part of the Waterfowl
Production Area in the absence of “no trespassing” signs, but recommended that
the citation stand in light of the strict prohibition in the statute against
trespassing on agricultural land regardless of whether the property is posted. 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.
The civil trespass statute, in Minn. Stat. § 97B.001, subd. 2, 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 was amended effective August 1, 2001, to define “agricultural land” to include land “that is planted native or introduced grassland or hay land.” The Schultz CRP property thus constituted agricultural land. Accordingly, it was not necessary for the land to be posted “no trespassing.” While the statute would have permitted limited entry upon the Schultz property to retrieve the wounded pheasant, Mr. Nelson acknowledged that he and Patrick entered the Schultz property before they knew that Galen was already there looking for the wounded pheasant and admitted that he and his sons continued to hunt on the Schultz property when they were unable to locate the wounded bird.
January 24, 2002
Page Four
hunting are responsible for ensuring that they do not trespass on agricultural land. Accordingly, Mr. Nelson was in violation of Minn. Stat. § 97B.001, subd. 2, when he entered the Schultz property without first obtaining permission. The citation issued to Mr. Nelson 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. Nelson 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. Nelson and the Administrative Law
Judge.
I am
closing our file in this matter and returning the record to you.
Respectfully
submitted,
/s/
Barbara L. Neilson
BARBARA
L. NEILSON
Administrative
Law Judge
Telephone:
612/341-7604
cc: Roger Nelson
Timothy Jenniges
* Minn. Stat. § 97B.001, subd. 4(b), 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. Thus, as long as the signs are posted once each year, the statutory requirement is met, even if the signs are no longer visible at the time the trespass citation is issued. Moreover, subdivision 4(b)(ii) specifies that “corners only accessible through agricultural land need not be posted.”