March 30, 2001
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Allen Garber, Commissioner MN Dept. of Natural Resources 500 Lafayette Rd. St. Paul, MN 55155 |
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RE: In the Matter of the Appeal of the Trespass Citations
Issued to John Charles Wendt, Steven Charles Peterson,
And Shawn Charles Clark
Citation Nos. 41402, 41403, and 41404
OAH Docket Nos: 15-2000-14114; 15-2000-14054; 15-2000-14052-2
Dear Commissioner Garber:
On March 12, 2001, a hearing was held on the trespass citations listed above at the Mille Lacs County Courthouse. John C. Wendt, Steven C. Peterson and Shawn C. Clark each appeared on their own behalf. Conservation Officers Jeff Humphrey, Bradley Schultz and Bruce Hall and landowner Russell Los testified in support of the citations. The hearing was tape-recorded.[1]
The issue presented is whether, on November 11, 2000, the defendants trespassed on land leased by Russell Los. The land was posted to prohibit hunting. The three defendants were together. All agree that the facts and law governing their citations are the same. Thus, the three matters have been consolidated.
The facts are as follows: On November 11, 2000, the three defendants were hunting in Daily Township, Mille Lacs County. Mr. Wendt owns a hunting cabin, and takes hunters onto nearby land. He has been hunting in the area for approximately 35 years, and has accurate maps showing the surrounding property ownership. Several deer stands have been erected, and Mr. Wendt is quite familiar with the area. On November 11, 2001, the DNR sent several conservation officers into the area because of landowner complaints that hunters were trespassing. Officers Schultz and Hall found the three defendants on public land. A discussion took place about how the hunters had gotten on to the property, and Mr. Wendt was asked to lead the hunters and officers back out of the property, retracing the route the hunters had taken when they entered. Mr. Wendt’s first attempt was unsuccessful; he could not find the small trail that would
Commissioner Allen Garber
3/29/01
Page 2
have led the group back to the route Mr. Wendt ordinarily followed. The officers then led the group out the way that the officers had entered.
Officers Schultz and Hall were not very familiar with the area. They met up with Officer Humphrey at Mr. Wendt’s cabin, and efforts were made using the maps to reconstruct the routes that the groups followed entering and leaving the area where the defendants were hunting. A few weeks later, Officers Humphrey and Schultz returned to the property. Officer Schultz retraced the route he believed that the group had taken to leave the property, and, using a global positioning system, Officer Humphrey determined that the exit route had crossed Mr. Los’s property. Exhibit 3 is a map with Mr. Los’s property outlined in yellow, and with a green line marking the exit route.
At the hearing, Mr. Wendt produced the notice he had received from Mr. Los, notifying Mr. Wendt that hunting and other recreational use was not permitted on Mr. Los’s property. Attached were maps that Mr. Wendt used to guide hunting parties. He had marked the maps to show the property lines and identified the route that he ordinarily followed across public land to access the areas where hunting was permitted.[2]
There was conflicting testimony about the exit route taken. All agreed that Mr. Wendt tried one route, but could not find the way and that the group started off again, as directed by the officers. The terrain was swampy, and some of the vehicles got stuck on the way out, but there was conflicting testimony about where that occurred. All agreed that the group passed some “No Trespassing” signs, but there was disagreement about just where the signs were located, and because of the poor terrain, whether the signs were accurately placed on the boundaries of Mr. Los’s property.[3]
Conclusion: The DNR has not demonstrated by a preponderance of the evidence that the defendants trespassed. It is unclear how the defendants entered the area where they were hunting when the officers met up with them. It is also unclear what route the men followed on the way out, but even if they came back across Mr. Los’s land, it is not clear whether they did so because the officers told them to follow, after Mr. Wendt had difficulty finding his route. The officers reconstructed the route with the global positioning system, but Officer Schultz admitted his lack of familiarity with the area, and could not place the location of the “No Trespass” signs that the men had seen
Commissioner Allen Garber
3/29/01
Page 3
while leaving. Conversely, Mr. Wendt had trouble locating the route that he testified that he follows routinely. With such conflicting evidence, and because the burden of proof is on the Department, I can not conclude that a trespass occurred.
IT IS HEREBY RECOMMENDED that the Department of Natural Resources dismiss the trespass charges against the defendants.
Pursuant to Minn. Stat. § 116.072, subd. 6(e), the commissioner may not issue a final order until at least five days after receipt of the report of the administrative law judge. The persons to whom the order is issued may, within those five days, comment to the commissioner and the commissioner will consider the comments. The final order of the commissioner may be appealed.[4]
Sincerely,
BEVERLY JONES HEYDINGER
Administrative Law Judge
Telephone: 612/341-7606
BJH:cr
cc: Shawn C. Clark
Steven C. Peterson
John C. Wendt
Officer Jeff Humphrey
Officer Bradley Schultz
Pat Watts, DNR