April 13, 2011
Tom
Landwehr
Commissioner
Minnesota
Department of Natural Resources
Re: In the
Matter of the Appeal of the Trespass Citation Issued to Terry Leroy Pickar
OAH
16-2000-21893-2 (Citation number: 45241)
Dear Commissioner Landwehr:
This matter came before Administrative
Law Judge Manuel J. Cervantes (ALJ) on a Notice of Hearing, filed March 16,
2011. The telephone hearing was held on April 6,
2011. Conservation Officer Al Peterson
(Officer), Anthony Beck (Land Owner or Beck), and John Tholen (Invitee or
Tholen) appeared as witnesses on behalf of the Department of Natural Resources
(Department or DNR). Terry Leroy Pickar (Appellant)
appeared on his own behalf. The record
closed at the conclusion of the hearing that morning.
The facts are as follows: Anthony Beck is a land owner in
On the morning of October 16, 2011, Tholen
saw three men walking across the Beck property in a westerly direction. By the time Tholen retrieved his All Terrain Vehicle
(ATV), the men had walked off the Beck property and onto adjacent land. Tholen saw a fourth man enter Beck’s
property, approaching from the east. Tholen
approached this man with his ATV. This
man identified himself as Terry Pickar, Appellant herein. Tholen told Appellant that he was on private
property and that he did not have permission to be there. Appellant replied that he had been asked to
help find a wounded deer that had crossed onto Beck’s property. Appellant then located his party of three by
cell phone. Tholen overheard the telephone
conversation and recognized the party’s current location. He offered to take Appellant there. When they arrived, Tholen told the party that
when they leave, that they should leave along the edge of the tree line out to
the road so as to avoid crossing the Beck field again.
Shortly thereafter, Tholen called Beck
to tell him there were four people who walked across his property. Beck joined Tholen and together they found a
deer stand on Beck’s property. Beck and
Tholen identified the location where a deer had been shot on Beck’s property,
by the traces of blood on the grass and foliage. Beck and Tholen also found bait piles of
apples lying on the ground on his property, not far from where the deer had
been shot. This irritated Beck because
baiting deer is unlawful. Beck, in turn,
called the local law enforcement tip-line to make a complaint. DNR was contacted.
Beck has never spoken to these men nor
did he give them permission to hunt or enter onto his property.
On October 17, 2011, the DNR Officer
met Beck at the property in question to conduct an investigation. The Officer confirmed the location of the
hunting stand, the bait piles of apples, and the traces of deer blood. The blood trail started on Beck’s property
and traveled from east to northwesterly across the Beck property.
On November 11, 2010, the Officer
interviewed the Appellant by telephone.
The Appellant admitted to the Officer that he saw the No Trespass/No
Hunting signs and was on the Beck property when he was approached by Tholen. He also admitted that he had trespassed but
he was under the assumption that the hunting party knew what they were doing. It was his belief that there was an
understanding among adjacent property owners that they could cross each other’s
land.
Beck was not aware of any such an
agreement. No adjacent landowner has
ever spoken to him about this understanding.
Appellant admitted that he had not received permission from Beck to
cross his land.
On February 2, 2011, the Officer
issued civil trespass citations to the four persons, including Appellant, who crossed
over the Beck property on October 16, 2010.
In his defense, Appellant stated that
he spoke to Tholen for about twenty minutes in an amicable fashion. Tholen offered to take him to where the
hunting party was located. Tholen did
not ask him to leave the property but drove Appellant farther back onto the Beck
property. Appellant believed everything
was “fine.” Appellant believes that he
got a trespass ticket was because Brandon Jacob did not cooperate with the DNR
in turning over the bow he hunted with on October 15, 2010, and that the ticket
was “personal.”
Minn. Stat. § 97B.001, subd. 4(a), in relevant part, states
“a person may not enter, for outdoor recreational purposes, any land that is
posted under this subdivision without first obtaining permission of the owner,
occupant, or lessee.”
Minn. Stat. § 97B.001, subd. 4(b), in
relevant part, states, “[t]he owner, occupant, or lessee of private
land … may prohibit outdoor recreation on the land by posting signs once each
year that state ‘no trespassing’ or similar words….”
The material facts in this case are
not in dispute: Appellant admitted that
the Beck property was posted “No trespassing/No hunting on October 16, 2010.” Appellant saw the signage but walked onto the
property anyway, incorrectly believing that the hunting party had permission to
enter. He acknowledged that he did not
personally receive permission from Beck to cross his land.
Appellant indicated that Tholen did
not tell him to leave, but offered to give him a ride to where the rest of the
hunting party was, and therefore, he thought everything was fine, inferring
that he had been granted permission by Tholen to be there. While there was no testimony to the effect
that Appellant was asked to leave, the trespass statute does not require
this.
Minn. Stat. § 97B.001, subd. 4(a),
requires anyone one who wishes to enter another’s property to get permission
from the owner first. Appellant admits that
neither he nor anyone in his party received such permission.
In addition, there appears to be a discrepancy
between Appellant’s testimony and that of Tholen. Tholen indicated that when he approached
Appellant, he told Appellant that he (Appellant) was on private property and
that he did not belong there. Appellant contradicts
this. The ALJ finds Tholen’s version of
the facts to be the more credible of the two.
From this finding, the ALJ concludes that Tholen did not grant Appellant
permission to be on the Beck property even if Tholen, as an invitee, had
authority to grant such permission. The
DNR has established, by a preponderance of the facts, an ample basis for the
issuance of a trespass citation to Appellant
Based upon the facts and law as stated
above, the ALJ recommends that Appellant pay the $50 scheduled civil penalty.
Sincerely,
s/Manuel
J. Cervantes
MANUEL
J. CERVANTES
Administrative
Law Judge
Telephone:
(651) 361-7945
MJC:dsc
cc: Conservation Officer Al Peterson
Terry Pickar
Pat Watts