On May 29, 2007, a prehearing conference was held in this matter by telephone

June 21, 2007

Mark Holsten, Commissioner

Minnesota Dept. of Natural Resources

500 Lafayette Road

St. Paul, MN 55155

Re: In the Matter of the Appeals of the Trespass Citations Issued to

John Maust, Dale Yohnk and Steven Rausch;

Citation Numbers 1551701, 155702 and 155703

OAH Docket Nos. 7-2000-17715-2. 7-2000-17716-2

and 7-2000-17717-2

Dear Commissioner Holsten:

On May 29, 2007, a Prehearing Conference was held in this matter by telephone. John Maust, Dale Yohnk, Steven Rausch and Conservation Officer Mike Gruhlke participated. At that time, Mr. Maust, Mr. Yohnk and Mr. Rausch agreed that the citations issued to each of them could be considered together, and thus their appeals were consolidated for consideration. Mr. Maust, Mr. Yohnk and Mr. Rausch understood that they were entitled to an Evidentiary Hearing, and waived their right to a Hearing. The parties agreed to submit the matter to me for decision without further hearing in order to resolve the matter, and they each affirmed that the facts as stated to me were true. Additional photographs and memoranda were received after the Prehearing Conference. For the reasons set forth below, I am recommending to you that the citations be affirmed.

On November 18, 2006 Mr. Maust, Mr. Yohnk, and Mr. Rausch were pheasant hunting in Minneota Township, Jackson County. They entered near the northern boundary of a Waterfowl Protection Area and walked west along a fence line for about one-third of a mile. The fence line ended at the edge of a wetland area. A north-facing WPA sign was posted at the end of the fence, in-line with the fence. Although there were no other signs indicating this was a corner of the WPA, based on the nature of the terrain, Mr. Maust, Mr. Yohnk and Mr. Rausch interpreted the WPA sign as a corner marker and walked to the north beyond the sign and fence line until they reached tilled land. The landowner met the hunting party, and told them they were on private property. The landowner pointed out that the fence continued in a straight line on the other side of the

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wetland. The hunters had not observed the fence on the other side of the wetland until it was pointed out to them. The hunters apologized and left the private land. The landowner then called a conservation officer to report trespassing.

Conservation Officer Mike Gruhlke received a telephone call reporting hunters trespassing on his property. Officer Gruhlke met with landowner, who signed a written statement that he had posted his property on September 1, 2006, but that the signs had been taken down by others. The landowner asked that civil trespass citations be issued. Officer Gruhlke then interviewed the hunting party, who told him that they knew the WPA area was irregularly shaped. They acknowledged that they had entered private property and that they had left when they were requested to leave by the landowner. After concluding his investigation, Officer Gruhlke issued civil trespass citations to Mr. Maust, Mr. Yohnk and Mr. Rausch for trespassing on private property.

During the Prehearing Conference, Mr. Maust, Mr. Yohnk and Mr. Rausch asserted that the WPA signage is confusing and provided photographs of other the signs in the WPA. Officer Gruhlke observed that the photographed signs were far from the area where the trespass occurred. Officer Gruhlke also provided a series of photographs of the sign and the area where the trespass occurred.

Minn. Stat. § 97B.001, subd. 4, provides as follows: “A person may not enter, for outdoor recreation purposes, any land that is posted under this subdivision without first obtaining permission of the owner, occupant, or lessee. …The owner…of private land may prohibit outdoor recreation on the land by posting signs once each year…”

In this case, the trespass was unintentional, but Mr. Maust, Mr. Yohnk and Mr. Rausch nevertheless did violate the law, and I must recommend that the citations be AFFIRMED.

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. Mr. Maust, Mr. Yohnk and Mr. Rausch may, within those five days, comment to the Commissioner, and the Commissioner must consider the comments. Once the Commissioner has made a final decision, a copy of that decision must be served upon John Maust, Dale Yohnk, Steven Rausch and the Administrative Law Judge. The final order of the Commissioner

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may be appealed.[1] If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2. The record closes upon the filing of exceptions to the report, or upon the expiration of the deadline for doing so. The

Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

I am closing our files in this matter, and returning the records to you.

Very truly yours,

/s/ Richard C. Luis

RICHARD C. LUIS

Administrative Law Judge

Telephone: (612) 349-2542

RCL:mo

cc: John Maust

Dale Yohnk

Steven Rausch

Officer Mike Gruhlke

Pat Watts, DNR