CADDNAR
[CITE: Zieg v. DNR, 15 CADDNAR 85 (2019)]
[VOLUME 15, PAGE 85]
Cause #: 19-087L
Caption: Zieg v. DNR
Administrative Law Judge: Jensen
Attorneys: Petitioner, pro se; Respondent by Matthew Rea
Date: December 18, 2019
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER
Case Summary and Jurisdiction
1. Richard J. Zieg (Zieg) filed correspondence with the Natural Resources Commission (Commission) on July 12, 2019 after being issued a “Notification of Ejection from DNR Property” (Property Ejection) by the Department of Natural Resources’ (DNR) on July 12, 2019.
2. The DNR is authorized to order a person to leave or to restrict a person’s access to a DNR Property. 312 IAC 8-5-3.
3. The DNR’s ejection of a person from a DNR Property is subject to administrative review under I.C. 4-21.5-3. 312 IAC 8-5-3(c).
4. Procedurally, this matter is governed by the Administrative Orders and Procedures Act, codified at I.C. 4-21.5 et seq. and administrative rules adopted by the Commission at 312 IAC 3 et seq.
5. With respect to the subject matter of this proceeding, the Commission is the “ultimate authority” for the DNR. I.C. 4-21.5-1-15, I.C. 14-10-2-3.
6. The Commission possesses jurisdiction over the subject matter of and the persons involved in this proceeding.
7. Administrative Law Judge (ALJ) Jensen was appointed to preside.
8. On September 18, 2019, a Prehearing Conference was conducted as scheduled[1]. During the Prehearing Conference the matter was scheduled for an Administrative Hearing to be conducted on November 7, 2019.
9. Zieg has proceeding in a self-represented capacity while DNR has been represented by Counsel, Matthew Rea.
10. On November 7, 2019, Zieg appeared for the Administrative Hearing prepared to proceed. On that date, the DNR appeared by Counsellor Rea, who explained that he had not secured the attendance of necessary witnesses and requested a continuance. Zieg did not object to the DNR’s motion and it was granted. The Administrative Hearing was rescheduled to occur on November 22, 2019, at a location convenient to Zieg.
11. The Administrative Hearing was conducted on November 22, 2019, as scheduled.
Findings of Fact: [2]
12. The Property Ejection was issued by Conservation Officer Brent Bohbrink (Bohbrink).
13. On its face the Property Ejection reflects that the date and time of the incident that prompted its issuance was July 12, 2019 at 11:00 a.m.
14. The Property Ejection specifies that Zieg is prohibited from entering Brown County State Park for a period of one year beginning July 12, 2019 at 11:30 a.m. and ending July 12, 2020 at 11:30 a.m.
15. The Property Ejection states, as a reason for prohibiting Zieg from entering Brown County State Park, that Zieg “stole entire contents from Room 310 at Abe Martin Lodge.”
16. Bohbrink testified that on July 12, 2019, while responding to a separate incident at the Brown County State Park, the Property Manager reported the theft of the contents of Room 310.
17. Bohbrink testified that he located Zieg on the Brown County State Park property and identified property belonging to the Abe Martin Lodge in the vehicle Zieg was driving. The property taken from the Abe Martin Lodge found in Zieg’s vehicle included bedding, towels, a hair dryer, an iron, batteries from the television remote control, and the “do not disturb” sign. (These items will hereafter be referred to as “the Subject Property”.) Testimony of Bohbrink.
18. Bohbrink testified that the vehicle Zieg was using was registered to Zieg’s mother.
19. Bohbrink testified that it is customary prohibit a person’s entry to a state park if the person is found to have committed a theft from the property. Bohbrink added that he has had previous occasions to prohibit a person’s entry to a state park after the person had committed theft of State property.
20. Zieg testified that on the evening of July 11, 2019 he had been driving through Brown County State Park when two young individuals threw rock at the van he was driving breaking the windshield and another window in the van.
21. Zieg also testified that throughout his stay at the Abe Martin Lodge he had repeated problems with electronic room keys failing to work and the front desk simply issued a new key card each time. Zieg reported that other Abe Martin Lodge patrons experienced the same problem.
22. On the morning of July 12, 2019, Zieg testified that he awoke in Room 310 with a severe headache and a black eye but could not recall the events of the previous evening following the rock throwing incident that broke the windows in the van he was driving. Zieg could not explain his injury and expressed concern that he had been assaulted in his room in the overnight hours.
23. Zieg acknowledged having removed the Subject Property from the Abe Martin Lodge and the Brown County State Park. Zieg Testimony.
24. Zieg explained that he had taken the Subject Property with him to report the potential assault to the Brown County Superior Court Judge and the Brown County Prosecutor on the morning of July 12, 2019. Zieg acknowledged that neither official would see him or take a report and noted that his actions might not have been wise. Id.
25. Zieg testified that he returned to the Brown County State Park and the Abe Martin Lodge before check-out time for the purpose of returning the Subject Property and it was only at this time that he was stopped by Bohbrink.
26. Records submitted with Zieg’s request for administrative review of the Property Ejection includes a quote from Wright’s Auto Parts, Inc. for the replacement of the windshield and a right rear door glass in the van he was driving. This document reflects the date July 12, 2019 with a time of 10:40:29 a.m.
27. Evidence offered by the Department is lacking in detail that would have been useful to the ALJ’s full understanding of the events.
28. While it is not a fact in evidence, the ALJ is aware that a typical check out time for overnight lodging is not before 11:00 a.m.
29. It is reasonably concluded from the available evidence that Bohbrink first made contact with Zieg at 11:00 a.m. on July 12, 2019 because that is the time reflected on the Property Ejection.
30. From the fact that Zieg had been at Wright’s Auto Parts, Inc. at 10:40:29 a.m. on July 12, 2019 it is also reasonably concluded that Zieg had removed the Subject Property from the Abe Martin Lodge and entirely off the Brown County State Park property but had return with the Subject Property before or near check out time for the Abe Martin Lodge.
31. The facts that Zieg removed the Subject Property from the Abe Martin Lodge and the Brown County State Park some time before 10:40:29 a.m. but returned and was found in possession of the Subject Property within Brown County State Park by 11:00 a.m. more reasonably supports a conclusion that Zieg was intending to return the Subject Property before check out time than do those same facts support a conclusion that Zieg intended to steal the Subject Property.
32. Despite the ALJ’s determination that the evidence available fails to support a conclusion that Zieg committed or intended to commit a criminal offense of theft as was stated on the Property Ejection, the ALJ fully recognizes the impropriety of Zieg removing the Subject Property from the Abe Martin Lodge and the Brown County State Park.
33. If Zieg believed he had been assaulted in Room 310 of the Abe Martin Lodge in the overnight hours before July 12, 2019, the reasonable course of action would have been to report the incident to law enforcement or to personnel of the Abe Martin Lodge.
Conclusions of Law
34. A “DNR Property” includes land or water that is owned or managed by the DNR. 312 IAC 8-1.5-6(a).
35. Brown County State Park and the Abe Martin Lodge are “DNR Properties”.
36. A property manager or other authorized DNR representative may restrict access to Brown County State Park and the Abe Martin Lodge for a period of time ranging from 24 hours to one year. 312 IAC 8-5-3.
37. Zieg’s removal of the Subject Property from the Abe Martin Lodge, for any reason, is sufficient justification for the DNR’s issuance of the Property Ejection.
Final Order
38. The Property Ejection is affirmed as issued.
[1] A “Notice of Prehearing Conference” was initially issued to Zieg at the address noted on the Property Ejection and not at the address included with Zieg’s correspondence seeking administrative review. Following Zieg’s failure to appear, a “Notice of Proposed Dismissal” was issued. The ALJ discovered the error with respect to the service address for Zieg, withdrew the “Notice of Proposed Dismissal”, and issued notice rescheduling the Prehearing Conference for September 18, 2019.
[2] A Finding of Fact more appropriately construed as a Conclusion of Law or a Conclusion of Law more appropriate considered a Finding of Fact shall so be considered.