254 Wis. 2d 625 647 N.W.2d 865 2002 WI App 129

Department of Natural Resources, Plaintiff-Respondent, v. Bruce D. Bowden, Defendant-Appellant.

Court of Appeals

No. 01-2820.

Submitted on briefs January 22, 2002.

Decided April 4, 2002.

2002 WI App 129

(Also reported in 647 N.W.2d 865.)

*626On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy L. Angel of Angel & Angel, S.C., Dodgeville.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Erik C. Peterson, district attorney, Dodgeville.

Before Vergeront, EJ., Dykman and Roggensack, JJ.1

DYKMAN, J.

¶ 1. Bruce Bowden appeals from a judgment of conviction for violating Wis. Admin. Code § NR 45.05(l)(c) (Nov. 2001). He argues that Wis. Stat. § 59.73(2) (1999-2000)2 authorizes land surveyors to drive motor vehicles on land managed by the Department of Natural Resources. We disagree and affirm.

Background

¶ 2. Bruce Bowden is the land surveyor for Iowa County. On December 2, 2000, Bowden went to Blue Mounds State Park in a pickup truck to "reestablish the section corners ... along the east side of Section 2 [of the park]." Before starting work, Bowden stopped at the ranger station to speak to Karl Heil, the park ranger *627and an officer for the Department of Natural Resources. Bowden informed Heil that he needed to survey inside the park on one of the trails. Heil told Bowden that he could go back on the trail, but that he could not drive on it; he would have to walk back. When Bowden assured Heil that he would not damage the trail, Heil warned Bowden that he would issue a citation for operating a motor vehicle in an unauthorized area if Bowden insisted on driving on the trail.

¶ 3. The conversation ended and Bowden returned to his truck. He drove it onto the trail, parking near the area he was going to survey. When he returned to the parking lot after he was finished surveying, Heil issued him a citation for driving the pickup truck on the trail, contrary to Wis. Admin. Code § NR 45.05(l)(c).

¶ 4. Bowden filed a motion to dismiss, which the circuit court denied. After a bench trial, the court found Bowden guilty of violating Wis. Admin. Code § 45.05(l)(c). Bowden appeals.

Decision

¶ 5. This case requires us to interpret Wis. Stat. § 59.73 and Wis. Admin. Code § NR 45.05. These are questions of law, which we review de novo. Gilbert v. DOR, 2001 WI App 153, at ¶ 7, 246 Wis. 2d 734, 633 N.W.2d 218.

¶ 6. Bowden makes two interrelated arguments. First, he argues that he did not violate Wis. Admin. Code § NR 45.05(1)(c). Second, he contends that to the extent that he violated the regulation, Wis. Stat. § 59.73 provides him with immunity from prosecution. We disagree with both of these contentions.

*628¶ 7. Wisconsin Admin. Code § 45.05(1)(c) provides:

No person may operate or park any vehicle as defined in s. 340.01(74), Stats., which is required to be registered by law on lands under the management, supervision and control of the [DNR] except:
1. On highways as defined in s. 340.01(22), Stats.
2. In posted parking areas and boat ramps.
3. Overnight by permit at state trail parking areas.
4. As otherwise specifically authorized by law or administrative rule.

There is no dispute that Bowden's pickup truck is a vehicle within the meaning of Wis. Stat. § 340.01(74), or that the trail is under the management, supervision and control of the DNR. It is also undisputed that the trail was not a highway or a posted parking area. Bowden contends, however, that the fourth exception applies because he was "specifically authorized" to drive his truck on the trail by Wis. Stat. § 59.73(2).

¶ 8. Wisconsin Stat. § 59.73(2) provides:

Subdividing sections. Whenever a surveyor is required to subdivide a section or smaller subdivision of land established by the United States survey, the surveyor shall proceed according to the statutes of the United States and the rules and regulations made by the secretary of the interior in conformity to the federal statutes. While so engaged a surveyor and the surveyor's assistants shall not be liable as a trespasser and shall be liable only for any actual damage done to land or property.

Bowden focuses on the last sentence of subsection (2) to make his argument. He asserts that because surveyors *629are not liable as trespassers, this authorizes him to drive a truck on trails controlled by the DNR. We reject this argument.

¶ 9. The DNR did not charge Bowden with trespassing, it charged him with operating a motor vehicle in an unauthorized area. Therefore, Wis. Stat. § 59.73(2) simply does not apply. The statute grants surveyors only a right of access. It does not give a surveyor the right to bring a vehicle of his or her choice onto park trails. Following Bowden's argument to its logical conclusion would prevent the DNR from restricting surveyors in any way. But Bowden himself acknowledges that it is appropriate for the DNR "to impose time, place and manner restrictions" on surveyors. This is what the DNR has done. It has concluded that driving vehicles on certain trails creates a risk of damaging the land, and has therefore prohibited such conduct. Although Bowden protests that he did not damage the land, whether that is so is ultimately irrelevant. Preventing property damage may be the general purpose of Wis. Admin. Code § NR 45.05(l)(c), but it is not an element of the regulation. Bowden violated the regulation the moment he drove his truck in an unauthorized area. Had he damaged the land as well, he could have been subject to additional penalties.

¶ 10. We do not doubt, as Bowden contends, that trucks are normally used in the course of surveying, that a motor vehicle is "the most efficient and cost effective way to gain access to property" and that the denial of motor vehicle use makes surveying more "burdensome." But knowing this does not change the plain language of Wis. Admin. Code § NR 45.05(l)(c). Bowden has not argued that the DNR rule makes it physically impossible to perform his statutorily pre*630scribed duties under Wis. Stat. § 59.45.3 And although it might be desirable to include an exception for sur*631veyors in § NR 45.05(1)(c), we cannot read one in by judicial fiat. Bowden must persuade either the DNR to create an exception or the legislature to override the DNR regulation by statute.

¶ 11. We conclude that Bowden does not meet the exception under Wis. Admin. Code § NR 45.05(l)(c)4. Further, there is no conflict between § NR 45.05(l)(c) and Wis. Stat. § 59.73(2).

By the Court. — Judgment affirmed.

Department of Natural Resources v. Bowden
254 Wis. 2d 625 647 N.W.2d 865 2002 WI App 129

Case Details

Name
Department of Natural Resources v. Bowden
Decision Date
Apr 4, 2002
Citations

254 Wis. 2d 625

647 N.W.2d 865

2002 WI App 129

Jurisdiction
Wisconsin

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