November 12, 2003

 

 

 

Gene Merriam, Commissioner MN Dept. of Natural Resources 500 Lafayette Rd. St. Paul, MN  55155

 

          RE:     In the Matter of Trespass Citation No. 40185 issued to Duane D. Koep;

                    OAH Docket No. 6-2000-15420-2

 

Dear Director Mooney:

 

          On October 10, 2003, I conducted an in-person hearing in Eagle Bend, MN.  The purpose of the hearing was to determine whether or not the trespass citation issued to Duane Koep should be affirmed, or dismissed.  For the reasons set forth below, I am recommending to you that the citation be affirmed.

 

          Maple Lake Wildlife Acres, Inc. is a hunting club which has been organized for more than 40 years.  The club owns land in Section 4 of Eastern Township in Ottertail County.  This is roughly seven miles northeast of Parkers Prairie.  The land abuts North Maple Lake and a large wetland fringe that surrounds the lake.  Club members use the land for duck hunting and general recreation.  The plat book (Exhibit 3) lists the Club’s parcel at 35.2 acres.

 

          Duane Koep owns 80 acres northeast of the club’s parcel.  His land does not directly abut the club’s property, nor does it abut the lake or wetland fringe.  The shortest distance between his land and the wetland fringe is roughly a half-mile.

 

          Koep bought his property in 1977, and soon thereafter talked with two of the club members.  They told him that their primary interest was duck hunting, and that they had no objection to Koep’s trapping or deer hunting on the property so long as he left the ducks alone.  Since that time, Koep has felt free to go onto the club’s property in order to hunt mushrooms and access the wetland area near the lake.

 

          Thomas Campbell has been a Conservation Officer serving this area for at least the last seven or eight years.  At some point during the late 1990’s, club members contacted Campbell about Koep’s trespassing on their land.  Campbell advised them to tell Koep he had to stay off of the land, and to post it.  Then, in 2001, club members again contacted Campbell and indicated that Koep was still trespassing on their land. 

Gene Merriam, Commissioner

11/12/03

Page 2

 

 

 

Campbell advised them to send Koep a certified letter and to notify the Sheriff of any future problems.  The club followed Campbell’s recommendations, and sent Koep a letter, dated November 1, 2001 (Exhibit 1) by certified mail.  Koep signed for it on December 20, 2001.  The letter makes it abundantly clear that any prior permission to use the club’s land was rescinded as of January 1, 2002, and that the land would be posted effective January 1, 2002.  The letter was signed by most, if not all of the members, and copies were sent to Officer Campbell, and the County Sheriff.

 

          The club did post the land in the fall of 2001 and in February of 2003, club members again posted it.  Sometime after May of 2003, Officer Campbell checked the posting, and found it met the legal requirements.  I have determined that on May 8, 2003, the land was properly posted and Koep was on notice, by virtue of the earlier letter, that he was not allowed to trespass on the land.

 

          On May 8, 2003, Paul Amundson, who is the adult son of David Amundson, the club president, encountered Koep collecting mushrooms on the club’s property.  Amundson saw Koep twice that day.  Once was near the northern boundary, in the eastern half of the club’s property.  The other time was down near the wetland fringe, on the western edge of the club’s property.  Koep acknowledges being in both places.  He states that he crossed the fence on the north boundary just to get around some water that was blocking his way as he walked along the property of Ralph Dittberner, who is the club’s neighbor to the north.  He also admits to being down by the wetland fringe, but argues that any member of the public has a right to be there, so long as they are below the tree line that forms the ordinary high water mark.  All persons agree that the tree line is a well defined, easily identified line, at least on that part of the lakeshore.  Koep argues that because the state owns land on the other side of the lake, abutting the lake and the wetland fringe, that any member of the public has the right to be on the wetland fringe area anywhere around the lake, so long as they don’t go further inland than the tree line.

 

          Due to the small amount of money in controversy in this matter, I have not exhaustively researched the law of accretion and reliction, nor have I actually gone out and viewed the wetland fringe and the tree line.  However, based on my limited legal research and legal materials made available to me by Officer Campbell (Exhibit 1), as well as the descriptions of the wetland fringe and tree line provided at the hearing, I have determined that a property owner, such as the club, may exclude the public from lands that were once part of the bed of a navigable lake, but are now dry land.  The following quotation applies to this case:

 

 

Gene Merriam, Commissioner

11/12/03

Page 3

 

 

 

If lakeshore property was once a part of the bed of a navigable lake or stream and is now dry land formed by the natural accession or recession of the waters, the property belongs to the upland owner as natural accretions or relictions to which he is entitled as part of his riparian rights.  Schmidt v. Marschel, 211 Minn. 539, 2 N.W. 2d 121 (Minn. 1942); Lamprey v. State, 52 Minn. 181, 53 N.W. 1139 (Minn. 1893).  Accordingly, the state would have no interest or ownership in such lands.  (Exhibit 1)

 

          This is bolstered by a statement found on the Department’s website (www.dnr.state.mn.us/waters/watermgmt_section/pwpermits viewed on November 10, 2003).  At that location, the Department is providing an overview of water law basics.  Under the heading “Trespassing on Private Property,” the following appears:

 

The belief that the state owns a strip of land around all Minnesota lakes for public use is absolutely false.  Riparian property (property abutting a lake, river, or wetland) is either privately or publicly owned.  The general public can access water bodies or water courses via public property, but not through private property.  Individuals entering private property without permission from the landowner are trespassing…  It is illegal to trespass on private property in order to gain access to a water body or water course without first obtaining the verbal or written permission from the land owner.  (Emphasis in original)

 

          Koep was trespassing on privately owned property both along the northern boundary and along the wetland fringe.  He had been told, both orally and in writing, that he was not welcome on the land.  The citation issued to Koep by Officer Campbell should be affirmed.

 

          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. Koep may, during that five 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. Koep and the Administrative Law Judge.

Gene Merriam, Commissioner

11/12/03

Page 3

 

 

 

          I am closing our file in this matter, and returning the record to you.

 

     Respectfully submitted,

 

 

                                                                

S/ Allan W. Klein

ALLAN W. KLEIN

Administrative Law Judge

 

 

cc:      Conservation Officer Thomas Campbell

Duane E. Koep

Maple Lake Wildlife Acres