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8/6/2010 1:58:00 PM
DOT officials entered private land without permission, notice
Citing statute, staff insist they donít need permission to enter private property

Richard Moore
Investigative Reporter

They say they can go anywhere and for just about any reason.

And that's exactly what they are doing. Staff for the Wisconsin Department of Transportation (DOT) is entering or threatening to enter private land without receiving permission, without seeking court authorization with an inspection warrant, and, in at least one case, without even notifying the property owner.

They say state law gives them the absolute right of access to anybody's property.

The problem is, the U.S. Supreme Court has said just the opposite, and the practice runs contrary to one of the DOT's own policies and procedures handbooks, the Facilities Development Manual.

The latest reported incident happened several weeks ago in Hazelhurst, where Dawn Eccleston lives with her husband off Hwy. 51.

One day she returned home to find survey flags flapping in the summer breeze around three good-sized ponds on her property - none of them within or even near the highway right of way - and didn't have a clue who had put them there or for what purpose.

She figured it was a government agency, though, and she was furious.

"Going on your property without permission, well, that's not right," Eccleston said in a recent interview, and so she set out to find who was responsible.

The first agency she thought to finger was the Wisconsin Department of Natural Resources.

Upon investigation, however, it turned out they weren't the culprits.

"They said they knew nothing about it," Eccleston told The Lakeland Times July 28. "They gave me a lot of numbers to call."

And call them she did, one after another, even contacting the federal U.S. Army Corps of Engineers.

Nobody knew a thing.

Forming a posse

Finally, Eccleston went to the Oneida County Sheriff's Department to see if law enforcement could get to the bottom of things.

Sure enough, the sheriff found the responsible survey crew, Eccleston said, and obtained a phone number for her to call, as well as the name of a DOT official, a man by the name of Tom Nelson.

When she talked to Nelson, she said, Nelson said he had been unaware of the situation and had only discovered that the crew was on her land by accident.

"I finally got a call on Wednesday from a guy named Tom and he told me, yeah, he knew what was going on and the only reason he knew was because he happened to see their trucks out there, and he stopped to ask them what they were doing," Eccleston said.

Eccleston said the crew was surveying wetlands within 500 feet of the Hwy. 51 centerline in advance of a 2012 road-widening project.

"He also told me that the DOT can go on your property at any time," she said.

Any time, any property

This week, the DOT project director for that section of Hwy. 51, Anna Wisner, confirmed the department's work in the area, and repeated Nelson's claim to Eccleston that the DOT can enter private property without permission.

Wisner said contracted consultants had been completing wetland survey work along the U.S. 51 highway corridor near Hazelhurst and were gathering wetland information, including their locations, types, and depths, to help the agency determine the potential impacts of highway improvements.

In a statement to The Lakeland Times, she reiterated the agency's right of access but said the policy was to notify the property owner.

"Although, per the statute, the department does not have to ask for permission, our process is to notify the owner/occupant that entry will occur, when it will occur and why it will occur," Wisner said.

Wisner also confirmed Eccleston's conversation with Nelson, saying Eccleston had contacted the DOT and Nelson had told her he wasn't the project director but was aware that a consultant was completing wetland delineation activities in the area. 

Wisner said Nelson passed along department policy about notification after Eccleston asked questions about the activities and why she had not been contacted for permission to enter the property; he also told her he did not believe the agency was required to get permission to enter private property for those types of activities, Wisner said.

Eccleston said she told Nelson that wasn't right.

"What I told him was that nobody notified us that they were going to be coming out to the property," she said. "We still haven't received any word or any letter (as of July 28) saying, 'Oh yeah, somebody will be out there.' It took me a day, a day and a half, to track down anybody who knew anything. You can say whatever you want, that you can go on my property and whatever, but I don't have to listen to you. I can go further if I have to, but I asked him point blank, 'Don't you think they should notify me,' and he said right out, 'Well that would just be common courtesy.'"

It was a lot more than that, Eccleston said.

"Well, it's not just common courtesy," she said. "It's my land. I feel that somebody was here and I don't know what they did on my property. It's (the ponds) far enough out that they shouldn't have been there. It's close enough to my house where they should not have been there."

The bottom line is, she said, it was an inappropriate and worrying intrusion.

"It's trespassing, and that's what I told the sheriff, too," Eccleston said. "I just wanted to let him know that I felt this is wrong . . . It's just disturbing that people are on here without telling you."

For her part, Wisner did not deny that the agency failed to notify Eccleston - and perhaps other landowners - but said the DOT is reviewing the situation to determine why she was not notified.

"We are reviewing the facts to determine what occurred," Wisner said. "It is unclear whether all property owners were notified in this instance. It is our expectation that we communicate with all property owners prior to entering their property to ensure that they understand what is being done and why. If this was not done in this case we will do what is necessary to ensure that this does not happen again."

Not the first time

It's not the first time in the area the DOT has tried to assert its authority to enter property at will.

This past winter, DOT officials made the same argument to Lakeland Times publisher Gregg Walker. Walker was acting as agent for Donald Walker, the owner of property at 8700 Hwy. 51, the site of the former Country Kitchen.

In that case, DOT technical services supervisor David Kircher called Walker to notify him of a proposed entry on the property but did not ask for permission. DOT officials planned to enter the parcel for surveying and soils work related to a possible new road.

Walker objected, and, at Walker's request, Kircher emailed a copy of the statute and reasserted his right of entry.

"The department does not have to ask for permission, but shall notify the owner/occupant that entry will occur, when it will occur, and why it will occur ... that was the purpose of my call," Kircher wrote in a Jan. 12 email.

Nonetheless, the agency backed off and did not enter the property after Walker again refused access.

Walker says he refused their entry because of DOT plans along Hwy. 51, which he said would be detrimental to area businesses.

"I was opposed to their plans to a put a median on Hwy. 51 from Paul Bunyan's to Hwy. J," Walker said. "There hasn't been proper public input, and that plan would be disastrous for businesses in that area."

The statute and the Court

It's not hard to see why DOT officials tell people they can enter private property when they want to - as they repeat often, that's exactly what that state statute says they can do.

The statute, entitled "Right of Entry," is short, but the language is clear and unambiguous: "The department or its authorized representatives may enter private lands to make surveys or inspections."

There's not a word about notification, not a syllable about permission.

That could be problematic, however, because the statute could be unconstitutional. 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.

In that case, court records state, the appellant was charged with violating the San Francisco Housing Code after he refused to allow housing inspectors to conduct a warrantless inspection of the space he rented, the residential use of which allegedly violated the apartment building's occupancy permit. They had made three attempts to gain his consent.

Camara sued, claiming the inspection ordinance was unconstitutional for failing to require a warrant for inspections.

He won.

The decision was considered a landmark ruling because it established a number of principles about state and municipal regulatory inspections. Those legal doctrines remain intact today.

According to the court ruling, the justices held that the Fourth Amendment prohibits prosecution of a person who has refused to permit a warrantless code enforcement inspection of his personal residence and that Fourth Amendment interests are not peripheral in matters of fire, health, housing and other government inspection programs.

In addition, the court papers state, warrantless administrative searches cannot be justified on the grounds that they make minimal demands on occupants. Neither can officials claim it is not feasible to get warrants in routine inspections or say area inspection programs could not function under reasonable search warrant requirements.

Perhaps most important, with certain carefully defined exceptions, the majority stated, an unconsented warrantless search of private property is "unreasonable."

"In the nonemergency situation here, appellant had a right to insist that the inspectors obtain a search warrant," justice Byron White wrote for the majority.

Americans, White stated, don't forfeit their constitutional rights just because a municipal inspection - also known as an administrative search - is usually fairly benign. Indeed, while a routine inspection of a private property is far less hostile that a typical policeman's search for evidence of a crime, he wrote, that doesn't lessen the search's constitutional weight.

"But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely 'peripheral,'" White wrote. "It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior."

Warrants help keep government honest by making officials justify even the most limited entry, he continued. For instance, he wrote, even the most law-abiding citizen has a very tangible real interest in limiting the circumstances under which government authorities can enter property, for there is always the possibility of criminal entry under the guise of official duty.

"Under the present system, when the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization," White wrote. "These are questions which may be reviewed by a neutral magistrate without any reassessment of the basic agency decision to canvass an area."

Indeed, White continued, the lack of a warrant requirement when a property owner or resident refuses entry strips property owners of any way to seriously challenge an inspector's decision to search.

"The practical effect of this system is to leave the occupant subject to the discretion of the official in the field," White wrote. "This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search."

In sum, White concluded, administrative searches of the kind at issue represented significant intrusions upon the interests protected by the Fourth Amendment, and such searches, when authorized and conducted without a warrant procedure, lacked the traditional safeguards the Fourth Amendment guarantees to the individual.

Since 1967, the Camara decision has consistently stood the test of time. It has been modified in only one significant way, in fact, and that was in the commercial realm.

In United States v. Biswell, the court recognized an exception to the search warrant requirement for "pervasively regulated businesses," such as firearms, and for industries "long subject to close supervision and inspection."

A tough tune to hum

The Camara decision has prompted many municipalities and other states to craft policies warning against illegal entry on private property by government agents.

For example, a 2009 risk management information memo published by the Minnesota League of Cities warned that, though public workers have many work-related reasons to enter private property, doing so "is not as easy as a song."

"If a city unlawfully enters private property, it may violate a person's constitutional rights," Rylee Retzer wrote. "The Fourth and Fourteenth Amendments to the U.S. Constitution prohibit unreasonable searches and seizures of persons or property. Individuals have a reasonable expectation of privacy, and the city should take care before entering private property to perform public works functions."

If the city is found to have violated a person's property rights, it may be subject to legal liability including but not limited to civil rights claims and trespass claims, Retzer cautioned.

So just how do they do things in Minnesota?

Get permission, or get a warrant, Retzer wrote.

"Generally, staff must (o)btain the consent of a property owner to enter the property, or (o)btain an administrative search warrant," the paper stated.

Exceptions, Retzer added, built on past court decisions - such things as emergencies, or where a code violation was clearly visible from an abutting public property or from a private property where the city had permission to be present.

Retzer's conclusion was to the point.

"Whatever the work reason for entering private property, it is imperative to gain consent from the property owner or person with authority to give consent," Retzer stated. "In the alternative, barring one of the few exceptions, the city should seek an administrative search warrant to enter the property to inspect or perform work on the property."

It's not only municipalities that have trod carefully on private property; so also have a slew of other state departments of transportation.

In California, for instance, here's what the state has to say about transportation surveyors:

"These individuals perform field surveys and monument property lines to delineate and map the Department's right of way needs," the agency stated in 2009. "They are also authorized by law to enter real property to perform such tasks. It is the Department's policy that owners and tenants of property will be notified prior to such surveys."

In South Dakota, to cite another example, surveyors who enter private property must get written consent.

"When surveying activities require that we survey or travel off the roadway right-of-way, the Area Engineer or Survey Party Chief shall provide a copy of form DOT-238 . . . to the property owner for his/her signature," the state's Highway Survey Manual states. "By signing this form the property owner grants permission to the State of South Dakota to enter the property for purposes of collecting data."

Indeed, the South Dakota statutes underscore private property rights.

While any certified engineer or land surveyor working for the state "may enter upon lands within the boundaries of this state" for surveying purposes, "this section shall not be construed as authorizing any unnecessary interference with private rights," the statute reads.

Et tu, Wisconsin DOT?

As it turns out, Wisconsin's DOT has a similar policy, and those officials who are entering private property without consent, much less notifying the property owner, are apparently violating it.

Interestingly, in both the Hazelhurst and Minocqua incidents reported in this article, officials cited the right-of-entry statute but not the policy the agency says employees must follow when surveying.

That procedure is outlined in Chapter 9 (Surveying), Section 10 (Public Relations), Subject 5 (Entry and Operations on Private Land) of the DOT Facilities Development Manual, a handbook of departmental policies, procedures and standards.

The section was last updated Dec. 13, 2006, according to the DOT website.

Sure enough, as its employees often recite, the section begins with the statute giving the department right of entry.

But that's where the similarities end.

"The department does not have to ask for permission, but shall notify the owner/occupant that entry will occur, when it will occur, and why it will occur," the manual states. "It may be necessary to contact more than one person (e.g., owner of the land, renter, occupant, caretaker, and neighbor) to adequately provide information of the proposed project to everyone concerned or affected by the project."

Department personnel, the manual continues, should contact the owner/occupant before beginning surveying operations.

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.

"Although the statutes allow the right of entry on private land, the exercise of this right may require a Special Inspection Warrant when an owner/occupant steadfastly refuses entry," the DOT manual states. "Neither the department nor the department's representative may 'breach the peace' when entering private land."

Notification is always required, the DOT manual states, when land is clearly posted, when entering an enclosed or cultivated area, when work performed is destructive, when walking around the entire parcel of privately owned land, when walking close to buildings, and when entry on private land is to be by more than a few feet.

"When only walking on private land is required and the walking is near the edge of the private land, good judgment should be used to determine whether prior contact is necessary to avoid a trespass encounter," the manual states.

As for notification, the manual states, up close is best.

"Notify the owner/occupant in a personal way," the manual states. "A visit is best; a telephone call is next best. Leaving a message on the owner/occupant's answering machine to call the project manager does not satisfy the requirement of notifying the owner/occupant. A letter with return receipt may be the best method for contacting an owner/occupant who cannot be reached by visit or telephone call."

If the property owner refuses, the manual states, the first step for DOT personnel is to discuss alternatives to collecting the needed information.

"For example, aerial photogrammetry could provide required topographic information originally planned to be acquired by ground surveys," the manual states.

If there are no reasonable alternatives, at that point DOT personnel is supposed to ask the sheriff's department for assistance in explaining the statutes. Region management should contact the sheriff's department, the DOT states.

"Usually a visit to the owner/occupant by the sheriff's department, confirming the department's authority, will suffice to secure entry," the manual states. "The sheriff's department may refuse to proceed without a Special Inspection Warrant."

If everything fails, and the sheriff cannot convince the property owner to allow entry, the department's manual instructs DOT personnel to consider modifications to the surveying operations "before beginning the expensive and time-consuming process to obtain a Special Inspection Warrant."

"Only after all attempts to gain entry have failed and no alternative surveying operations can be used to acquire the needed data should region management seek a Special Inspection Warrant," the DOT manual states.

At that point, the department would prepare an affidavit explaining the public need to enter the private property.

"The employee who was denied access must personally swear out this affidavit at the courthouse of the county in which the land is located," the manual states. "A judge will review this affidavit and issue a Special Inspection Warrant ordering the local sheriff's department to assist the department in gaining access."

Richard Moore can be reached at rmmoore1@verizon.net.

Reader Comments

Posted: Saturday, May 11, 2013
Article comment by: Allen Drewry

I live in the city of Franklin,Va,and I had workers from the city come on my property,remove my chain link fence and install a storm drain. They did all of this without even contacting me that this work would be done.They also reinstalled the chain link fence differently than it was originally without my input and, I feel they have violated my constitutional rights. please advise.

Posted: Monday, January 17, 2011
Article comment by: Brett

Nice article. This hits literally 'home' for me. I had a city inspector walk in my back door and now I'm being prosecuted for not having proper permits.

Posted: Thursday, August 12, 2010
Article comment by: Think it over

To Mr. Joe Concerned -
The 2nd amendment has nothing to do with your right to shoot anyone. You might want to read up on your responsibilities and limitations regarding self-defense: http://www.examiner.com/x-5103-Wisconsin-Gun-Rights-Examiner~y2009m3d30-Wisconsin-self-defense-laws

and - try not to shoot your kids or neighbors accidentally.

Posted: Thursday, August 12, 2010
Article comment by: gunhunter

seems dnr wardens also feel they can enter private land at any time.
used to have the statement in the hunting regulations the "DNR wardens, is the performance of their duties, can enter lands at any time."

Older big game reg's had this but the recent small game reg's don't anymore.

Posted: Wednesday, August 11, 2010
Article comment by: J

a note to Joe Concerned - you might want to check on that 2nd amendment - it does not give you the right to blow away anyone who is crossing your property. I would hate to see what you would do if someone actually provoked you - you sound like you would probably accidentally shoot your dog nefore you would hit anyone who was remotely dangerous.

Posted: Wednesday, August 11, 2010
Article comment by: Concerned

In this day of (cough cough) hope and change, I see this event as the norm within today's complacent society.

Great research and article. Once again, the mainstream media misses the story but The Lakeland Times comes through.

Posted: Tuesday, August 10, 2010
Article comment by: Daniel Nicolay

Another great mountain from a mole hill being constructed by moore in his irrational vendetta against all government agencies.

Posted: Saturday, August 7, 2010
Article comment by: Joe Concerned

All I can say about this article is if the state or anyone who is not invited onto my property will end up on the business end of my 12 gauge shotgun. That is what the 2nd amendment is for...The right to bear arm and to protect our lands from enemies.

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