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OAH 16-2000-20090-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF NATURAL
RESOURCES
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In the Matter of the Appeal
of the Trespass Citation Issued to Jeffrey David Walden |
RECOMMENDATION
OF CONTINUANCE FOR DISMISSAL FOLLOWING PREHEARING CONFERENCE |
This matter came before Administrative
Law Judge Manuel J. Cervantes on a Notice of Prehearing Conference held on
December 16, 2008. Conservation Officer
Carey Shoutz appeared telephonically on behalf of the Department of Natural
Resources (Department). Appellant
Jeffrey David Walden appeared telephonically pro se.
The undisputed facts are as follows:
on October 14 and 15, 2008, Appellant was bow hunting for deer. On October 14, Appellant shot a deer but lost
track of it, believing that the injured deer may have fled through adjacent
private property. On October 15, Appellant
returned to the area where he last saw the fleeing deer. It was Appellant’s understanding at the time that
he could enter upon the private property of another to search for an injured,
or dead deer, so long as the search was done without possession of a weapon,
and this is what he did. During the
search, Appellant saw a Conservation Officer drive up to a neighbor’s
house. Appellant, who had been in the nearby
woods, had not been seen by the Conservation Officer. Nonetheless, Appellant approached the
Conservation Officer to discuss the situation.
Appellant admitted he was searching for a deer on the private property
of another without the permission of the land owner or rightful lessee. Appellant was issued a civil citation for
trespass.[1] Appellant has been a hunter for many
years. This is his first and only trespass
citation.
A fact controverted by Appellant is whether the
private property in question was properly posted for no trespass. This would be an issue, if this matter were
to go to an evidentiary hearing.
In the interest of expediency and to avoid the
expenditure of further time and resources, the parties have agreed to resolve
this matter without an evidentiary hearing based on the following conditions: Appellant understands that the department has
the burden of supporting its proposed action, a $50 civil penalty, by a
preponderance of the evidence.[2]
Preponderance of the evidence means that
the evidence establishes that it was more probable that something occurred than
it did not occur. An illustration used
by the courts when instructing juries is that if the scales weighing the
evidence were to tip one way or the other, a preponderance has been
established. Notwithstanding this
understanding, Appellant agrees to forgo his right to an evidentiary hearing and
the attendant due process rights[3]
under Minn. Stat. § 116.072, subd. 6 (2000) and
In exchange for Appellant’s admission to the elements
of the citation, the Conservation Officer has agreed not to object to the
Administrative Law Judge’s recommendation to the Commissioner that prosecution
of this matter be suspended and continued for dismissal. If the recommendation is accepted by the
Commissioner, Appellant agrees to refrain from any same or similar conduct
(trespass) that resulted in this citation.
Appellant further agrees to pay $50 as costs to the Department within 30
days of the date the Commissioner’s final decision is received by Appellant.[4] If Appellant is not cited for the same or
similar conduct (trespass) in the State of
RECOMMENDATION
Based on the agreement of the parties, the
fact that Appellant was forthright and honest by coming forward to the
Conservation Officer during the investigation, the fact that this is Appellant’s
only infraction over many years of hunting, and in interest in expediency and
to avoid the expenditure of further time and resources, the undersigned
recommends that the Commissioner accept the agreement, suspend the prosecution
of this matter for a period of a year, and if Appellant complies with the
afore-mentioned conditions, dismiss the matter.
Dated: December 19, 2008
s/Manuel
J. Cervantes
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MANUEL
J. CERVANTES Administrative
Law Judge |
Reported: Prehearing Conference was not recorded.
NOTICE
This report is a recommendation, not a final
decision. The Commissioner will make the
final decision after review of the record.
The Commissioner may not issue a final order until at
least five days after receipt of the report of the administrative law judge.
The appellant may, within those five days, comment to the Commissioner on the
recommendations and the Commissioner will consider the comments. The final order may be appealed in the manner
provided in Minn. Stat. §§ 14.63 to 14.69.
[1]
[2]
[3] Generally, these rights include the right to have the issues in a case be adjudicated by an impartial tribunal, the right to question any witnesses the department may call against him, the right to testify or not to testify, and the right to call witnesses to testify on his behalf.
[4]