October 2, 2009
|
Col.
Jim Konrad, Director Division
of Enforcement |
|
RE: In the Matter of the Appeal of the Civil
Citation Issued to Larry Herbert Engel, Citation No. 145614; OAH Docket No.
11-2000-20686-2
Dear
Col. Konrad:
A Prehearing Conference was conducted
in this matter on September 3, 2009. Administrative
Law Judge Barbara L. Neilson, Conservation Officer Colleen Adam, and Larry
Herbert Engel participated in the conference call. At the conclusion of the Prehearing
Conference, all participants agreed that no formal hearing would be needed and
that the Administrative Law Judge would make a recommendation in this matter
based on the record created during the telephone conference.
On April 10, 2009, Officer Adam issued
a civil citation to Mr. Engel for violating Minn. Stat. § 84.773, subd.
1(1). That statute prohibits the
intentional operation of an off-highway vehicle on a trail on public land that
is designated or signed for nonmotorized use only.
The Citation is based on an incident that
occurred on November 9, 2008, during firearms deer hunting season. On that date, Officer Adam observed a gray
Jeep Cherokee parked on a designated snowmobile trail located on
County-administered tax-forfeited lands off of
Letter to Col. Konrad
October
2, 2009
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Two
and
a younger male open the closed gate and put it back on the post with the gray
jeep right behind them.” Officer Adam
took photographs of the open gate, post, and chain/lock that had been ripped
out of its anchor point. She asserted
that she had checked the area at issue on November 7, 2008, two days before the
incident, and observed that there was a “closed, chained and locked gate”
across the trail at that time. Officer Adam
thereafter left the area to respond to another call. Later that day, she saw the gray Jeep parked
outside Mr. Engel’s home.[1]
Officer Adam apparently did not take pictures on
November 9, 2008, of the sign restricting the use of motorized vehicles on the
trail. Her Initial Complaint Report does
not mention the sign or describe its condition at that time. Officer Adam returned to the same area in
February 2009 and took photographs of the sign,[2] which
she testified had been damaged by bird shot.
Based upon the photograph, the only words that are clearly visible on
the sign are the heading (“Forest Access”) and a portion of the statement below
the heading: “This walking trail [unclear] constructed to encourage timber
harvest that will improve Hunting [unclear] Wildlife [unclear]”. A reference to “Hubbard [unclear] Dept”
appears at the bottom of the sign.[3] When this sign is compared to other signs in
Hubbard County that are depicted in the photographs provided by Officer Adam,
it is evident that this sign does not include the clear restrictions on motorized
traffic that are found on many of those signs.[4]
Because Mr. Engel left the area for the winter,
Officer Adam did not issue the citation until April 10, 2009. During a recorded conversation with Officer
Adam that day, Mr. Engel admitted that the Jeep was his and that he had been
deer hunting on the land in
Letter to Col. Konrad
October
2, 2009
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Three
trail
during the 2007 hunting season and that Officer Adam and another conservation
officer (Mike Lawrence) had told him that it was permissible because logging
activity was occurring in that area.[5]
The Initial Complaint Report prepared
by Officer Adam acknowledged that, in 2007, the gate was locked open for all to
access the area due to ongoing logging activity. In the Report, Officer Adam asserted that,
during 2007, she and retired Conservation Officer Mike Lawrence told a hunting
party that included Mr. Engel that they “would not be able to drive back to
‘their’ hunting spot beyond 2007 season due to changes in
Mark Juberian, Natural Resource Manager for the
Hubbard County Natural Resource Management Office, sent Officer Adam a letter
dated August 19, 2009, regarding the use of this trail. The contents of this letter are at odds in
certain respects with Officer Adam’s contention that the trail was customarily
gated and motorized vehicles were customarily prohibited on the trail in
question during deer hunting season. In
the letter, Mr. Juberian noted:
This road was constructed by our department in 1982
as a timber access road. I flagged the
route, and it was all new road until a point is [sic] section 1 when I followed
an existing “jeep” trail. This road was
used by hunters who access the area from the west via private land. As is department policy all “new” roads were
gated and vehicle access restricted.
Gates were placed at the start of the road and also where it merged with
the existing road in section 1. This
road, as you know, has been a constant source of problems as we have no way to
control the vehicle access from the private land to the west, nor should
we. The gate in section 1 has been torn
down several times. It was for this
reason that we decided to simply open the gate on the east side during rifle
deer season to allow hunters the same access as those who were privy to use the
private access to the west. The
understanding was that it would be
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October
2, 2009
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Four
opened, barring wet weather conditions that would
compromise the integrity of the timber access road. Such was the case in 2008. The problem was it started raining just days
before the opener and people did not check to see if it was opened and just
assumed it was. Bottom line is
this: the road will be open this year
for all the aforementioned reasons coupled with the fact that with the ATV exemptions
and open access from the west it is, as you know, an enforcement
nightmare. I have a couple letters from
disgruntled hunters and I will inform them of the situations as well, as
several of their statements are erroneous.[7]
The Administrative Law Judge recommends that the
Commissioner DISMISS the Citation issued to Mr. Engel on April 10, 2009,
because the Department has not met its burden 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.
Officer Adam admittedly did not herself observe Mr. Engel take down the
trail gate on November 9, 2008, and the other hunters to whom she spoke saw two
individuals riding in another vehicle take down the gate. The further statement of these hunters that
the Jeep was “right behind” the first vehicle is ambiguous and does not
necessarily imply that Mr. Engel observed the gate being taken down and should
have known the trail was closed. The
other hunters did not testify and were not even identified by name in the
report.
Most importantly, regardless of the condition of the
Forest Access sign on November 9, 2008, and the words used on that sign, and
regardless of whether the gate was open or closed, Mr. Juberian’s letter provides
support for Mr. Engel’s contention that the County has been inconsistent in its
approach to this trail and has in recent years permitted motorized vehicles
during deer hunting season, at least under most circumstances. Mr. Juberian indicated that the gate
installed on the trail had been torn down several times, and the County
ultimately had decided to open the gate during rifle deer season. He further stated that there was an
“understanding” that the trail would be opened during the 2008 firearms deer
hunting season barring wet weather conditions.
However, there is no evidence of how or whether this “understanding” was
communicated to hunters or how they otherwise would have known that the rain
prior to the opening of the 2008 season trail would cause the trail to be
considered closed to
Letter to Col. Konrad
October
2, 2009
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Five
vehicles. Under all of these circumstances, the
Department simply has not demonstrated that facts exist to support issuance of
the citation.
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. Engel. If the Commissioner fails to act within 90
days after issuance of this Recommendation, the Recommendation will become the
final decision in the case.
Sincerely,
s/Barbara
L. Neilson
BARBARA L. NEILSON
Administrative
Law Judge
Tel.: 651-361-7845
cc: Larry H. Engel
Conservation Officer Colleen Adam
[1] Initial Complaint Report at 1, 2, 4-6.
[2] Initial Complaint Report at 2, 7-9.
[3] Photographs of the sign are attached to the Initial
Complaint Report and the Supplemental Report.
[4] For example, some of the other signs specify that
there is “LIMITED Motor Vehicle Use, identify “PERMITTED Motorized Uses,” or
announce that the roads and trails are “CLOSED TO ALL MOTORIZED USE UNTIL
FURTHER NOTICE.” (Emphasis in original.)
[5] See
informal transcript of taped conversation between Officer Adam and Larry Engel.
[6] Initial Complaint Report at 2; see also materials
supplied with Supplemental Report.
[7] August 19, 2009, Letter to Colleen Adam from Mark
Juberian.