July 14, 2008

 

Colonel Mark Johanson

Acting Chief Conservation Officer

Division of Enforcement

Minnesota Department of Natural Resources

500 Lafayette Road

St. Paul, Minnesota  55155-4047

 

Re:     In the Matter of the Trespass Citation Issued to Bernard Kenneth Lindly, Citation No. 142842

OAH Docket No. 3-2000-19754-2

 

Dear Colonel Johanson:

 

            The above-entitled matter came on for a prehearing telephone conference call at 10:30 a.m. on July 11, 2008.  The Administrative Law Judge, Conservation Officer Adam Block, and Bernard Lindly participated in the telephone conference.  All participants agreed that no formal hearing would be needed and that the ALJ would make a recommendation in this matter based on the record created during the telephone conference.

 

          The relevant facts are not disputed.  On or about May 24, 2008, Mr. Lindlly drove his Yamaha RT dirt bike onto DNR land situated in the Minnesota River Valley north of the City of Belle Plaine and west of Highway 25 in Scott County.  Mr. Lindly accessed the property from Grove Street in Belle Plaine and went down an embankment to a sand bar area near the river bottom.  The land is not posted with any signs either allowing or prohibiting entry by recreational vehicles.  Mr. Lindly did not know whose land it was, but incorrectly believed it to be either City property or private property.  He has been there in the past with his dirt bike and has observed many other off-highway vehicles.

 

          Conservation Officer Adam Block was patrolling the area and issued Mr. Lindly civil trespass citation # 142842, alleging violation of Minn. Stat. § 84.90, subd. 2 (2006).  Conservation Officer Block issued citations to several other persons driving recreational motor vehicles in the area that day.  Conservation Officer Block agreed that many people drive vehicles into this area, and he said that both administrative and criminal citations have been issued as an enforcement tool to get the word out that this conduct is illegal.

    

          Minn. Stat. § 84.90, subd. 2 (2006), provides in relevant part:

 

Within the seven county metropolitan area, no person shall enter and operate a recreational motor vehicle on lands not owned by the person, except where otherwise allowed by law, without the written or oral permission of the owner, occupant, or lessee of such lands. Written permission may be given by a posted notice of any kind or description that the owner, occupant, or lessee prefers, so long as it specifies the kind of vehicles allowed, such as by saying "Recreational Vehicles Allowed," "Snowmobiles Allowed," "Trail Bikes Allowed," "All-Terrain Vehicles Allowed," or words substantially similar.

 

           Accordingly, unless land located within the seven county metropolitan area is posted with notice to permit entry, any person seeking to enter it must first obtain the permission of the owner, occupant, or lessee.  In addition, Minn. Stat. § 84.777, subd. 1(a)(2006), prohibits the use of off-highway vehicles on state land administered by the Commissioner of Natural Resources except on roads and trails specifically designated and posted by the Commissioner for use by off-highway vehicles.  Mr. Lindly has acknowledged entering the property without knowing who owned it or seeking permission from the owner.  The property is state land administered by the DNR, and it is not specifically designated or posted for use by off-highway vehicles.  The Administrative Law Judge accordingly recommends that the Commissioner affirm civil trespass citation # 142842 and require Mr. Lindly to pay the $100 fine.  I am closing our file in this matter and returning the record to you. 

 

          Pursuant to Minn. Stat. § 116.072, subd. 6(e), the Commissioner must wait at least five days after receipt of this recommendation before making a final   

decision. Within those five days, the person to whom the order is issued may comment on this recommendation. The Commissioner must send a copy of the final decision to Mr. Lindly.  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.

                                                                      Sincerely,

                                       

                                                                      s/Kathleen D. Sheehy

                                                                      _____________________

                                                                      KATHLEEN D. SHEEHY                                                                                     Administrative Law Judge

Encl.

cc:      C.O. Adam Block, Bernard Lindly