October 14, 2005
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Gene Merriam, Commissioner MN Department of Natural Resources |
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Re: In the Matter of the Appeal of the Trespass Citation Issued to Donald Wayne Suchomel, Citation Number 72071;
OAH Docket No. 15-2000-16745-2
Dear Commissioner Merriam:
On September 1, 2005, a prehearing conference was held in this matter by telephone. Donald Wayne Suchomel and Conservation Officer Jeff Humphrey participated. Mr. Suchomel was issued a civil citation for violation of Minn. Stat. § 84.90 which prohibits any person from operating a recreational motor vehicle (including an all-terrain vehicle) on private property outside the metropolitan area if the property is properly posted. The citation states that the penalty is $50.00.[1] The facts concerning the citation issued to Mr. Suchomel for trespassing on private property are not in dispute. However, Mr. Suchomel and Officer Humphrey disagreed on whether the private property where the alleged trespass had occurred had been properly posted, and whether or not Mr. Suchomel violated the law.
Because the facts were not in dispute, the parties agreed to submit information, including photographs, to me, along with their position concerning the alleged violation. The final submission was received on September 30, 2005.
The facts are as follows:
On June 4, 2005, Donald Suchomel was riding an All Terrain Vehicle, and was stopped by Officer Humphrey and Lieutenant Rita Frenzel, District 10 Enforcement Supervisor. In the opinion of the officers, Mr. Suchomel was coming out of a private trail that they believed had been properly posted to prevent trespassing. Both officers were aware that the trail was heavily used, so they issued a civil citation rather than a criminal citation that requires a court appearance.
There
is a “No Trespassing” sign[2]
posted at the end of a public cartway known as
The position of the parties:
The conservation
officers concede that the pathway is heavily used and well worn, but illegal,
that the signs clearly notify people that they are entering on private land,
and that the “No Trespassing” signs are properly placed. They have had many complaints about trespass
onto the private property and into the nearby
Mr. Suchomel contends that he has ridden on the pathway since 1993 and was never told that it was closed to the public. He believes that the placement of the sign implies that the adjoining woods are posted, but not the pathway. Mr. Suchomel points out that trails are not as clearly marked as highways are, that the placement of the “No Trespassing” sign was confusing, and that greater effort should be made to clearly block the entrance so that it is obvious to riders where the private property begins and ends. He also notes that the nearby presence of a regular street sign, visible in his photos, adds to the confusion.
Analysis:
Mr. Suchomel was cited for a violation of Minn. Stat. § 84.90 which states in relevant part:
Outside the seven county metropolitan area, no person shall enter on any land not owned by the person for the purpose of operating a recreational motor vehicle after being notified, either orally or by written or posted notice, by the owner…not to do so. Where posted notice is used, signs shall bear letters not less than two inches high and shall state one of the following: “Recreational Vehicles Prohibited,” Snowmobiles Prohibited,” “Trail Bikes Prohibited,” “All-Terrain Vehicles Prohibited,” or words substantially similar….The notice or sign shall be posted at corners and ordinary ingress and egress to the property and when so posted shall serve so as to raise a conclusive presumption that a person operating a recreational motor vehicle thereon had knowledge of entering upon such posted lands….
However, the conservation officer relies on the statutory language governing entering on posted land – the more general “trespass” provisions. It requires the sign to include the words “no trespassing,” and additional requirements concerning the name of the landowner. Like the markings for recreational vehicles, this provision also requires posting of access roads and trails at the point of entrance. It appears that the posted notice does meet this requirement, but it is equally clear that the posted notice does not meet the requirement of Minn. Stat. § 84.90, which is the basis of the citation.
Because the sign does not contain the language required by Minn. Stat. § 84.90, I conclude that the land was not correctly posted to support the citation that was issued. It is possible that Mr. Suchomel could have been cited under the statute that prohibits entering posted land, but he was not. Also, in this instance, the incorrect signage added to the confusion that Mr. Suchomel pointed out. The location and wording of the sign could reasonably lead a person to conclude that it was not the pathway, but the adjoining land, that was posted.
Now Mr. Suchomel is clearly informed that this is private property and that he may not take a recreational vehicle on it without obtaining the property owner’s permission. He emphasized that, since receiving the citation, he has told many others that the pathway is private property and may not be used without permission. It is apparent that he did not intentionally enter on to posted property. Correctly posting the property at the access point should decrease the improper use.
IT IS HEREBY RECOMMENDED: That the Commissioner dismiss the civil citation issued to Mr. Suchomel on September 1, 2005.
Notice: 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 person 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.[3]
Sincerely,
/s/
Beverly Jones Heydinger
BEVERLY
JONES HEYDINGER
Administrative
Law Judge
Telephone:
(612) 341-7606
BJH:cr
cc: Doanld W. Suchomel
Conservation Officer Jeff Humphrey