April 14, 2008
Mark Holsten
Commissioner
Minnesota Department of
Natural Resources
Re: In
the Matter of the Appeal of the Trespass Citation Issued to Billy Joe Finke,
Citation No. 31965;
OAH Docket
No. 3-2000-19551-2
Dear Commissioner Holsten:
The undersigned Administrative Law Judge
(ALJ) conducted a telephone prehearing conference in this case on Thursday,
April 3, 2008. The ALJ, Deputy Paul
Burke of the Wright County Sheriff’s Office, and the Respondent Billy Joe Finke
participated. During the course of the
telephone conference, the ALJ determined that the testimony of the complaining
witness, Scott Carlen, was material and necessary to resolution of this
matter. The ALJ therefore set this
matter for a subsequent telephone hearing to give Mr. Carlen an opportunity to
present his testimony, as well as to take testimony from Deputy Burke and Mr.
Finke. The ALJ convened that telephone hearing
at 1:30 p.m. on April 8, 2008. Deputy
Burke, Mr. Finke, and Mr. Carlen all testified under oath. The OAH hearing record closed when the
telephone hearing ended.
The following facts are undisputed facts: On December 18, 2007, at approximately 4:45
p.m., Mr. Finke was driving his pickup truck, Minnesota License No. UJD 637, northbound
on
drove northward on
Mr. Carlen called the Wright County
Sheriff’s office at approximately 4:45 p.m. on December 18, 2007, and
approximately two hours later Deputy Burke drove out to Mr. Carlen’s farm
and took his statement. Mr. Carlen also
showed Deputy Burke footprints and dog tracks extending eastward from
There are, however, material facts that
were in dispute. Although the testimony both
Mr. Carlen and Mr. Finke gave at the hearing essentially repeated the
statements they had given to Deputy Burke, both added some relevant details. Mr. Carlen was emphatic that Mr. Finke had
been in the field when he shot the pheasant.
Although he testified that his view of Mr. Finke had been partially
obscured by trees on the property, he had heard shots fired while Mr. Finke was
clearly in the field. Mr. Carlen also
testified that Mr. Finke was armed with a breach loading shotgun when Mr.
Carlen encountered him walking out of the field. Both the testimony and the existence of dog
tracks in the field establish that Mr. Finke was accompanied by his dog when he
was coming out of the field. Mr. Finke,
on the other hand, was equally emphatic in testifying that he had initially
shot the bird when it was on the west side of the Quinnell Avenue right-of-way,
and that the pheasant, which was still alive, had then run across the road to
the east side and into Mr. Carlen’s field.
Mr. Finke further testified that he had then placed his shotgun back
into his pickup truck and had walked unarmed into Mr. Carlen’s field to
retrieve both his dog and the bird. Mr.
Finke also testified that he does not own a breach loading shotgun but only
owns a pump action shotgun that ejects shell casings. Mr. Finke stated that if Deputy Burke had
inspected the west side of the road right-of-way, he would have found shell
casings, which would have tended to corroborate his own version of events.
Minn. Stat. § 97B.001, subd. 2, provides
that a person may not enter posted agricultural land for outdoor recreation
purposes without first obtaining permission of the owner, occupant, or
lessee. The statute further prohibits a
person from taking a wild animal on any land where the person is prohibited
from entering. See Minn. Stat. § 97B.001, subd. 7. However, Minn. Stat. § 97B.001, subd.,
contains an exception to that general rule that allows a person to enter even
posted land without the owner’s permission to retrieve a hunting dog so long as
that person is not carrying a firearm while on the property. Thus, the citation should be affirmed here either
if Mr. Finke was on Mr. Carlen’s property when he shot the pheasant or if he
was armed when he admittedly entered the property to retrieve his dog.
Mr. Carlen’s and Mr. Finke’s versions of
events contain two irreconcilable contradictions about material facts—that is,
whether Mr. Finke was in Mr. Carlen’s field when he shot the bird and whether
he was armed while he was admittedly in that field. There were no other witnesses to what occurred,
and there is no physical evidence that tends to support one version over the
other.
The party
with the burden of proof shall have the burden of supporting its proposed
action by a preponderance of the evidence.
If another party asserts any affirmative defenses, that party shall have
the burden of proving the defense by a preponderance of the evidence.
“Preponderance of the evidence” means that the
evidence establishes that it was more probable that something occurred than
that it did not occur. An illustration
frequently used by courts when instructing juries is that if scales weighing
the evidence were to tip one way or the other, a preponderance has been
established. In this case, in order to support
the citation, a preponderance of the evidence must establish that Mr. Finke
shot the pheasant while either he or the pheasant was in Mr. Carlen’s field. Alternatively, if he did shoot the pheasant
outside of the field and the wounded bird ran into it, a preponderance of the
evidence must establish that Mr. Finke was armed while he was in the field
retrieving his hunting dog. Here, there
is no evidence in the record tending to tip the scales in favor of the
contradictory testimony of either Mr. Carlen or Mr. Finke. The burden of proof is therefore not met in
this case, and the ALJ recommends that the Commissioner DISMISS Citation No. 31965
that was issued to Billy Joe Finke on December 22, 2007.
Pursuant to
Dated: April 14, 2008
s/Bruce
H. Johnson
|
BRUCE H. JOHNSON Assistant Chief
Administrative Law Judge |
Enclosure
cc: Deputy Paul Burke
Billy Joe Finke