December 5, 2005
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Gene Merriam, Commissioner Department of Natural Resources 500 Lafayette Road St. Paul, MN 55155-4047
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Re: In the Matter of the Appeal of OHV Registration, Operation, and Trespass Civil Citation No. 73207 Issued to Kevin Charles Pullis; OAH Docket No. 12-2000-16878-2
Dear Commissioner Merriam:
An administrative appeal hearing on this citation was held on November 22, 2005. The hearing was conducted by telephone and taped by the Administrative Law Judge. Kevin C. Pullis and Conservation Officer Bob Mlynar participated in the hearing.
On September 4, 2005, Officer Mylnar issued the Citation to Mr. Pullis. The citation was for operating an OHV in a closed area on September 2, 2005, in violation of Minn. Stat. § 84.773, subd. 1(2). That statute provides, in relevant part:
84.773 Restrictions on operation.
Subdivision 1. Restrictions. A person may not intentionally operate an off-highway vehicle:
. . .
(2) on restricted areas within public lands that are posted or where gates or other clearly visible structures are placed to prevent unauthorized motorized vehicle access;
The area in question is a wooded area on the western edge of Aitken County, several miles north of the City of Aiken, and just north of Blind Lake. The land is mostly tax-forfeited land owned by the County. For most of the summer, the County had closed the land to OHV use, but in early August had opened the main road through the area to OHV use. The primary purpose of that was to allow bear hunters to begin bear baiting. OHV use was restricted to the road, with posted signs at the north and south entrances to the area and along the road. Hunters could drive their ATVs along the road, but had to walk into their sites on foot to do their baiting and to set up their stands.
Mr. Pullis owns a cabin on Blind Lake. He is a bear hunter and sets up about six bear hunting sites in the area for himself, friends, and family. During August, Mr. Pullis, sometimes with a neighbor, would drive an ATV into the area to do the baiting.[1] He would generally leave his ATV on the road and walk into the sites to do the baiting.
Officer Mylnar was aware of the bear baiting activity in the area. He was also aware that bear baiters and others were riding ATVs in the area, sometimes off the road. He had noticed fresh ATV tracks going right past some of the signs and off the road into the woods. He followed one of those sets of tracks about 200 yards into the woods to a bait site. It had been properly tagged by Mr. Pullis showing it to be his bait site. Officer Mylnar followed another set of tracks off the road 300 to 400 yards and again found a baiting site marked by Mr. Pullis. The ATV tracks to both sites went directly from the road to the sites, turned around at the sites, and returned directly to the road. Officer Mylnar concluded from that that the ATV tracks were from the person doing the baiting, not from other persons riding ATVs through the woods.
On September 2, 2005, Mr. Pullis hunted at one of the sites. He shot a bear. He drove his ATV into the woods and used it to drag the bear out.
On September 4, 2005, Officer Mylnar came across two ATVs parked on the road. Shortly, two hunters walked out of the woods. He checked the hunters, then they all drove on the road out of the area where they met several other people on ATVs, including Mr. Pullis.
Officer Mylnar questioned Mr. Pullis about whether he had driven an ATV into the woods to do baiting. After a fairly lengthy discussion with Officer Mylnar describing the bait sites and ATV tracks he had seen, Mr. Pullis told Officer Mylnar that he had walked in to the sites to do the baiting, but had used an ATV to carry stands to the sites. Mr. Pullis did so in part because he did not want to argue any more and because he felt that Officer Mylnar was intent on tagging somebody.
Based on the record, I find that Mr. Pullis committed the violation for which he was cited. He had admitted to Officer Mylnar that he had driven an ATV into the woods with a stand. He denied that during the telephone hearing, but admitted that he had driven an ATV into the woods on September 2, 2005, to drag out the bear that he had shot. It is also possible that Mr. Pullis was accepting responsibility for others in his party who drove ATVs into the sites. Officer Mylnar did not observe Mr. Pullis in the woods on an ATV, but the evidence of ATV tracks to his sites, coupled with Mr. Pullis's own admissions, demonstrate that Mr. Pullis drove into a restricted area. Therefore, Civil Citation No. 73207 was properly issued and should be affirmed.
The law requires the final decision in this matter to be made by the Commissioner or his designee. The law[2] further requires that the Commissioner wait at least five days after receipt of this recommendation before making that final decision and allow Mr. Pullis to submit comments to the Commissioner on this recommendation within that five-day period. The Commissioner must send a copy of his final decision to Mr. Pullis. If the Commissioner fails to act within 90 days after the record before the Commissioner closes, this recommendation will become the final decision in this matter.[3]
I am closing our file in this matter. The record is enclosed.
Sincerely,
/s/ Steve M. Mihalchick
STEVE M. MIHALCHICK
Administrative Law Judge
612-349-2544
steve.mihalchick@state.mn.us
cc: Kevin C. Pullis
Conservation Officer Mylnar
Maj. William Spence