June 3, 2008
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Col. Mark Johanson Division of Enforcement |
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Re: In the Matter of the Appeal of ATV Trespass
Citation Issued to
Terrance
Wayne Suess; OAH Docket No. 7-2000-19315-2
Dear
A Prehearing Conference was conducted in this matter by Administrative Law Judge (ALJ) Richard C. Luis on April 21, 2008. The ALJ, Conservation Officer Karl Hadrits, and the Appellant/Respondent, Terrance Wayne Suess, participated by means of a telephone conference. At the conclusion of the Prehearing Conference, Conservation Officer Hadrits and Mr. Suess decided that they had nothing further to add to what they had said that day, and that they would waive a subsequent hearing. The record in this matter closed on May 30, 2008, after the receipt of after-filed documents and the audio tape of a conversation between Officer Hadrits and Mr. Suess prior to the time the citation in question was issued. The tape is admitted to the record as Exhibit 5.
On
September 13, 2007, Officer Hadrits issued a civil citation to Mr. Suess for
trespassing by means of driving his All Terrain Vehicle (ATV) on posted private
land, in violation of Minn. Stat. §
84.90. The land is leased by Terry
Peterson, in Sections 8 and 17 of
The Citation is based on an incident from August 11, 2007, when Mr. Peterson allegedly observed Mr. Suess operating his ATV at a junction of trails located inside the property Peterson leases from Potlatch Paper Company. Peterson alleged that Mr. Suess turned the ATV around, and went back on the trail in the direction of his own property, and that Peterson was able to call his wife, Candice Peterson, on a cell phone to let her know that Mr. Suess was coming. Mrs. Peterson stopped Suess as he was returning to his own property, and accused him of having trespassed on the Peterson’s leased land. Mr. Suess denied any trespass, and told Mrs. Peterson that he had driven up to the property line, which is posted with “No Trespassing” signs, and turned around to come back.
June 3, 2008
Page 2
The Petersons contacted Crow Wing County Deputy Sheriff Jon Vukelich, who investigated the situation on August 11, 2007. Vukelich then contacted Conservation Officer Hadrits, who met with Terry and Candice Peterson on August 30, 2007. During that meeting, Mr. Peterson told Hadrits that he looked on August 11 in the area where the trail crosses the county land on to the leased property for any tracks or evidence of an ATV turning around, and found no signs or tracks of any ATV having turned around.
On the weekend after having met with the Petersons, September 7-9, 2007, Conservation Officer Hadrits met with Mr. Suess in a taped conversation, Mr. Suess stated that, on August 11, 2007, he drove on the county land to the No Trespassing sign, turned around and came out onto the road where he met Mrs. Peterson, and told her the same thing he just told Conservation Officer Hadrits. Conservation Officer Hadrits did not believe Mr. Suess, and issued the Citation based on the report from Deputy Vukelich and his interviews with the Petersons. Hadrits decided to accept the account given by Terry Peterson because Mr. Suess was evasive in his responses and did not answer questions directly regarding the incident, and because Mr. Suess admitted that a Potlatch employee had told him to stay off the property. After Suess gave a detailed explanation of the place where the trails meet and Terry Peterson allegedly observed him, Officer Hadrits asked how he knew about that location. Suess told Officer Hadrits that he had been going back there “forever, way before it was leased.” Hadrits had previous encounters with Mr. Suess and believed generally that Mr. Suess acts with “little regard” for the law.
Conservation Officer Hadrits issued the Citation under appeal on September 13, 2007. Conservation Officer Hadrits’s Citation was issued based entirely on hearsay, and no eyewitness to the alleged action of Mr. Suess participated in the Prehearing Conference. Mr. Suess adamantly denies venturing past the “No Trespassing” signs on August 11, 2007. In addition to presiding at the Prehearing Conference, the Administrative Law Judge has reviewed Mr. Suess’s audio-taped statement from September, 2007, and he maintained the same denial clearly and unequivocally at that time.
The Administrative Law Judge recommends that the Commissioner DISMISS the Citation issued to Terrance Wayne Suess on September 13, 2007. He concludes that the Department has not met its burden of proof, which is to establish that facts exist to support the issuance of the Citation, and to prove those facts by a preponderance of the evidence.
“Preponderance of the evidence” means that the evidence establishes it is more probable that something occurred than that it did not occur. In this case, the Administrative Law Judge has discounted the evidence put forth by Conservation Officer Hadrits because it is based entirely on second and third-level hearsay. The only eyewitness to appear before the Administrative Law Judge was Mr. Suess, and the Administrative Law Judge does not find his testimony to lack credibility.
June 3, 2008
Page 3
Pursuant to Minn. Stat. § 116.072, subd. 6(e), the Commissioner of Natural Resources must wait at least five days after receipt of this Recommendation before making a final decision. Within those five days, the parties may comment on this Recommendation. The Commissioner must send a copy of the final decision to Mr. Suess. If the Commissioner fails to act within 90 days after issuance of this Recommendation, the Recommendation will become the final decision in the case.
Dated: June _3_, 2008
_/s/
Richard C. Luis _
RICHARD
C. LUIS
Administrative
Law Judge
RCL:mo
Encl.
cc: Terrance Wayne Suess
Conservation Officer Karl Hadrits