This Just In ...

Big WI gov't says it can enter your property without notification or permission

Posted by Kevin Fischer on Jan. 18, 2011

No Wisconsin news outlet has given more scrutiny to and leveled more criticism at the state Department of Natural Resources (DNR) than the Lakeland Times. In a stunning story, the newspaper reports:

“Officials of the Wisconsin Department of Natural Resources say they have the right to enter private property without the permission or notification of property owners when performing work as representatives of the state Department of Transportation, documents obtained from the town of Minocqua reveal.

For its part, the DOT insists it has statutory authority to enter private property for agency projects without notifying or obtaining permission from property owners; that authority would presumably be conferred upon contractors or agents working for the DOT.”

Last October, Lakeland Times publisher Gregg Walker filed a trespassing complaint with the Minocqua Police Department after the DNR entered property owned by his father on Highway 51. DNR workers were conducting a review as part of a proposed reconstruction of the highway. The DOT and the DNR have an agreement in place allowing the DNR to act as a branch of the DOT during any review of water resources.

Walker opposed the highway reconstruction because he felt it would reduce access to local businesses.

On September 23, 2010 a neighbor of Walker’s father saw a man and four women on Walker’s father’s land. When the neighbor approached the four who were DNR workers to inquire what they were up to, the man said they were doing survey work for a proposed road project.

Walker submits notification was never given about the visit nor was permission given to the state. He also claims notification and permission are required despite the opposite contention held by the DOT and DNR.

A DNR official admitted in a police report the agency did not contact Walker before entering. Walker had informed the DOT that he did not want them on the property.

Walker’s trespassing complaint was tossed on the opinion of the Minocqua town attorney who cited the DOT's Facilities Development Manual and said “the DNR is appropriately and legally delegated as a representative of the DOT to conduct field inspections of proposed DOT projects."

Walker calls that bad legal advice.

The Lakeland Times writes:

“The language of the law to which Walker refers is clear: ‘The department or its authorized representatives may enter private lands to make surveys or inspections.’

Still, as far back as 1967, in Camara v. Municipal Court, the U.S. Supreme Court has said that nonemergency regulatory inspections require warrants for access if property owners deny permission to enter.

Then, too, Walker said, for the DOT - or the DNR, as its authorized agent - to enter private property without both notification and permission would violate the DOT's policy as outlined in the same facilities development manual (Town Attorney) Harrold cited.

‘The agency clearly requires its employees and agents to gain permission to enter private property and to seek a warrant if that permission is denied,’ Walker said. ‘I'm amazed that Mr. Harrold didn't read that part of the manual. If he had, it would have been clear to him that the DNR was violating the terms of its agreement with the DOT, and that in fact the DNR was trespassing'."

The newspaper adds this about that DOT manual:

"Department personnel, the manual continues, should contact the owner before beginning work.

The department is also keenly aware a warrant might be required, and that they cannot enter without it if a property owner refuses to relent and consent.”

There’s more. Walker not only claims trespassing but harassment. After Walker purchased the Rhinelander Daily News last September, an angry DNR worker in cancelling his subscription wrote a letter to the editor comparing Walker to Hitler.

The original plans to reconstruct Highway 51 have been scrapped. Even so, the power grab by the DOT and DNR is startling.

Put this one in the Why People Hate Government file.