10/26/2017 7:29:00 AM It's time to rein in the DNR's trespassing
As we report in today's edition, the state is pushing forward with the re-prosecution of a man who has already served a year in prison for intentionally pointing a firearm at DNR wardens but whose conviction the state Supreme Court recently overturned.
As our article details, back in 2012, as the sun set on the last day of hunting season, Robert Stietz of Lafayette County was minding his own business on his own property, checking his fences, when two wardens wearing blaze orange blazed onto his property, confronted him with firearms, and demanded that he surrender his own firearms.
On a hunch, they were looking for illegal hunters. The problem was, Stietz claimed the wardens never clearly identified themselves and he thought they were illegal hunters. A standoff ensued, with everybody pointing guns at everybody else.
The article has the details, but suffice it to say here, Stietz has always maintained that the wardens were trespassing on his property, and that he feared for his life. He was arrested and convicted - after the circuit court refused to instruct the jury that the government has the burden to disprove his claim of self-defense - and sent to prison.
The failure to properly instruct the jury led the Supreme Court to overturn the conviction.
But there's a larger issue the court's majority never addressed, and that was whether the DNR wardens were in fact trespassers.
In a concurring opinion, three justices believed they were because the DNR wardens decided to enter private property with no reasonable suspicion that anything illegal was occurring there. They simply saw a car parked on private land, assumed that somebody was hunting illegally, and used their hunch to go looking for trouble.
Here's how justice Rebecca Bradley put it: "No attempt was made to contact the owners of the private land, there was no evidence of dead or diseased wild animals on the land, there was no audible noise suggesting illegal hunting or suspicious activity, and there was no evidence that a crime had been or was about to be committed ... Based on this record, there was no legal basis for the wardens to be on Stietz's (or his uncle's) private property. By entering it merely on a hunch, the wardens exceeded their authority under the law and should be treated as trespassers."
Bradley also took issue with what she called the DNR's bald assertion in court that wardens "do not need reasonable suspicion to believe that a crime has been committed before they enter private land."
That's wrong, Bradley wrote: "The state has not cited and I cannot locate any authority permitting DNR wardens to traverse privately owned lands without any legal justification."
Well, it may be wrong, but as of today, it's still the DNR's policy because the court majority never addressed that particular issue, only the technical one of jury instruction.
After the court decision, state Rep. Adam Jarchow introduced legislation to codify Bradley's position in state law. The bill would require reasonable suspicion of a crime for the DNR to enter private land, but it has remain buried in committee.
The Legislature should pass this bill, and the governor should sign it. If that doesn't happen, new DNR secretary Dan Meyer should craft a new policy identical to Jarchow's bill and ask the Natural Resources Board to enact it.
And Meyer should act quickly, because without a policy change the DNR will continue to trespass and continue to threaten not only the private property rights of average citizens but, as this case showed, the safety, welfare, and lives of innocent citizens.
This case, caused by unnecessary and unconstitutional government intrusion, could have ended in tragedy. As it was, Stietz, doing nothing more than walking his property, spent a year in prison.
We know such cases of invasive trespassing will continue - with dire consequences for innocent property owners - because it has happened before.
In 2007, in a similar case, the state DNR and the U.S. Fish & Wildlife Service brought all the legal firepower they could muster, as well some sketchier tricks of the law-enforcement trade, in their pursuit of Alvin and Paul Sowinski of Sugar Camp for the purported poisoning of wildlife.
In the end, they got at least some of what they wanted: a confession by each to a single misdemeanor count of illegally possessing a bald eagle and an acceptance of responsibility for inappropriate predator control practices.
As it turned out, though, the Sowinskis had been on-again, off-again targets of law enforcement for nearly 20 years, during which time government special agents tried every trick in the book to catch them poisoning wildlife. They never really did.
That is to say, they installed secret surveillance cameras in the woods, chased uncorroborated confidential source information, they sent in an undercover agent to try and lure the Sowinskis into illegal acts (the agent failed), they planted dead animals and fake animal tracks to entice them to set out poison bait piles (they didn't), they used mapping and aerial imaging programs, they searched the property multiple times without warrants in addition to executing early morning raids with warrants, and interrogated the Sowinskis repeatedly in efforts to gain confessions.
Finally, they charged onto the Sowinski property with throngs of armed federal and state agents, terrorizing their families.
With all that, they managed to find one "probably" poisoned bald eagle, which might or might not have been poisoned at a bait pile, and a video of Paul Sowinski moving a dead eagle that-wait for it- was planted on the property by DNR agents.
What prompted the entire case was a DNR hunch similar to that in the Stietz case. In 2007, after earlier surveillance cameras had recorded no violations in the wake of rumors and gossip, a DNR warden decided to go to the property to check out more rumors and gossip. That's right, according to the warden himself, no specific allegation or evidence sparked Pat Novesky's visit to the Sowinski property in 2007.
Rather, he had a "hunch" after hearing "several nonspecific bits of information."
Once again, the DNR was trespassing. He had no business on the property. A family was effectively terrorized because of a DNR warden's misguided hunches.
Apparently, DNR wardens have a lot of hunches about crimes they imagine are being committed. These might be more accurately called fantasies that government agents use as excuses to invade private property.
We also know the DNR will continue to trespass in the future because they are re-prosecuting the Stietz case. That's the only reason to do that, given that Stietz has already served his prison time.
It's not that they want to put him away again. It's that they want him branded as the criminal they think he is - you know, the kind of people, like the Sowinskis, who stand up against a rogue government to defend life and property - and they want to preserve their prerogative to trespass.
Otherwise there would not be a reason to retry the case.
And so there are more victims out there waiting to happen - prison sentences, harassment, terrorized families, and possibly bloodshed - unless the power of a rogue agency is checked.
Now is the time.
Pretty soon, we'll see what this Legislature is really made of. Pretty soon we'll see what DNR secretary Dan Meyer is really made of.
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