June 21, 2007
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Mark Holsten, Commissioner |
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Re: In the Matter of the Appeals of the Trespass Citations Issued to
Nicholas John Marshall and Jeremiah Joseph Marshall (Juveniles)
Citation Numbers 39551 and 39552
OAH Numbers 7-2000-17757-2 and 7-2000-17758-2
Dear Commissioner Holsten:
On May 29, 2007, a Prehearing Conference was held in this matter by telephone. Joe Marshall, father of Nicholas John Marshall and Jeremiah Joseph Marshall, juveniles, and Conservation Officer Karl Hadrits participated. During the Prehearing Conference, 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. They are as follows:
On
November 5, 2006, during the first week of the deer-hunting season, Nicholas
Marshall and Jeremiah Marshall were hunting deer with their father, Joe
Marshall, in
Nicholas and
Jeremiah left their father and walked down
Dave Elstrom
leases approximately 240 acres from Northwest Paper Company land. Northwest Paper Company owns land on both
sides of
Page 2
June 21, 2007
Conservation Officer Hadrits, who investigated the matter, spoke with the Marshalls and Elstrom. Jeremiah and Nicholas freely admitted that they had seen the signs. After concluding his investigation, Officer Hadrits issued civil trespass citations to Nicholas and Jeremiah Marshall for trespassing on Elstrom’s leased property.
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.”
Joe Marshall was very candid during the hearing. He stated that the land was posted. He said that any mistake was his and should not be held against his sons. But the land was clearly posted. The deer was shot only a few feet away from a sign. In this case, the trespass was unintentional, but Nicholas and Jeremiah Marshall 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. Nicholas and Jeremiah Marshall 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 Nicholas and Jeremiah Marshall and the Administrative Law Judge. The final order of the Commissioner may be appealed.[3] 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.
RCL:mo Very
truly yours,
/s/
Richard C. Luis
cc: Jeremiah Marshall
Nicholas
Joseph
Officer Karl Hadrits
Pat Watts, DNR Telephone:
(612) 349-2542