March 9, 1998
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Col. Leo W. Haseman Director, Division of Enforcement Minnesota Department of Natural Resources 500 Lafayette Road St. Paul, MN 55155-4047 |
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RE: In the Matter of the Trespass Citation Issued to Duane Dennis Johnson; OAH Docket No. 6-2000-11504-2
Dear Colonel Haseman:
A prehearing conference was held amongst Conservation Officer Jim Smith, Duane Johnson and myself on February 18, 1998. The matter could not be resolved during that prehearing conference, so a hearing was scheduled for March 6.
On March 6, a formal hearing by telephone conference call did occur. Participating in the hearing were Conservation Officer Smith, Mr. Johnson and Neil Seiffert, the landowner. Testimony was taken, under oath, from all three. Based on that testimony, I conclude that Mr. Johnson did, in fact, trespass upon posted land while hunting, and thus the citation should be upheld.
Essentially, on December 28, 1996, Johnson was bow-and-arrow hunting in Wright County, southwest of Annandale. He was walking along a fork of the Crow River, but found that his feet were getting wet because there was approximately six inches of water on the ice. So he left the river and began walking alongside it for approximately one-half mile. He did not cross any fences, nor did he see any "no trespassing" signs. He encountered Neil Seiffert's son, who informed him that he was trespassing. Neil Seiffert contacted Officer Smith. Officer Smith then spoke with Mr. Johnson, who essentially confirmed these facts, and Officer Smith decided a citation should be issued.
Based upon the testimony, I believe that the land was properly posted, as Mr. Seiffert maintains appropriate signage all year long. However, I further find that this was not "agricultural land", even though Seiffert's cattle were free to use it for pasture, because there was no maintained fence.
Mr. Johnson did not see any "no trespassing" signs, which is entirely possible. I explained to him during the hearing that the Legislature has struck a balance with regard to how much signage to require, and so long as the primary corners of each parcel and any access roads or trails are posted, that is enough. It is entirely possible to enter land, as Mr. Johnson did, via a river which is not situated at a corner or near an access point, and not have any signs be visible. I believe that that is what happened here.
The law provides that a final decision in this matter shall be made by the Commissioner (or his designee). Before making that decision, however, the Commissioner must wait at least five days and allow Mr. Johnson an opportunity to file exceptions or present argument to him. I would point out that the record does contain a letter from Mr. Johnson, which was mailed on January 2, 1997, setting forth his version of events, which is the same as he testified to before me. Should Mr. Johnson desire to file additional exceptions or present argument, he should get in touch with you (Colonel Haseman) to determine the appropriate procedure. After five days, the Commissioner or his designee may make a final decision in this matter. A copy of that final decision must be sent to Mr. Johnson and to the undersigned.
In summary, I conclude that Mr. Johnson was in violation of Minn. Stat. § 97B.001, subd. 4 when he entered upon the posted land of Neil Seiffert without first obtaining permission. The citation issued to him was, therefore, validly issued, and he must pay the $50.00 fine once the decision becomes final.
If I can be of any further assistance to you in this matter, please do not hesitate to contact me. I am, however, closing our file and returning the record to you.
Sincerely,
ALLAN W. KLEIN
Administrative Law Judge
Telephone: 612/341-7609
AWK:lr
Enclosures
cc: Duane D. Johnson
Jim Smith
Neil Seiffert