***  DNR POLICIES & PROCEDURES ***

26.26-19 - Non-Timber Trespass Procedure
 (Issued 07/11/2005)

Supersedes

NOTE: The content of this document has not been revised since 07/11/2003. 
The only change involves the conversion and numbering to the current DNR Policies & Procedures Manual Structure.

Approval Signature

K. L. Cool, Director, Department of Natural Resources

Supersedes

POLICY:

The department shall develop guidelines and procedures for reporting and prosecuting acts of trespass on state lands, and all departmental employees shall be constantly on the alert for trespass involving state property.

PURPOSE:

The State of Michigan owns and manages millions of acres of public lands under the provisions of part 5, general powers and duties, section 504, and part 21 (subpart 15), protection of state owned lands, of the Natural Resources and Environmental Protection Act (NREPA), 1994 P.A. 451, as amended. The department has the legal authority and responsibility to control trespass on state lands.   

DNR procedures that provide guidance to staff on how to identify and classify a non-timber trespass, and how to identify the necessary actions to be taken to resolve a non-timber trespass that has been committed on state-owned lands is necessary to maintain the integrity of state-owned lands. 

DEFINITIONS:

  1. Criminal Trespass:  Section 324.2156 (1) and (2) of Part 21 of the NREPA states, in part: “(1) … a person shall not injure or remove, or induce or direct any other person to injure or remove, any buildings, fences, improvements, sand, gravel, marl or other minerals, or other property belonging to or appertaining to state owned land.  (2) A person shall not accept or receive by purchase or otherwise a forest product, improvement, or other property unlawfully cut or removed, or both, knowing the property to have been unlawfully cut or removed, or both, in violation of this subsection.”  The bold portions of the section relate to non-timber trespasses.  In addition, the State Land Rules, R299.922 (f.) states that it is unlawful for a person “To place or erect a fence or barrier, to construct or occupy improvements, or to enclose the lands.”

  2. Civil Trespass:  An invasion of an individual’s interest in the exclusive possession of his land or entering one’s land without permission. 

  3. Non-timber trespass on state land:  All trespasses on state land, not dealing with timber removal.  These may include, but are not limited to, houses, garages, barns, fences, improved yards and gardens, storage areas and roads. 

CLASSIFICATION:

I.        Building Trespass:  A structure has been placed partially or entirely on state-owned property.  Examples of building trespasses include garages, homes, and storage sheds.  A building trespass may be resolved in one of three ways as follows:

 

A.     Trespasser voluntarily removes the building.

B.   DNR is willing to resolve via a land exchange or direct sale. 

1.   Resolution by land sale or exchange shall be the minimum acreage necessary and will only be considered when: 

a.   The owner of the building owns adjoining land.

b.   Sale or exchange of the state-owned land occupied by the building would not be detrimental to the public interest and/or the management of state lands.

c.   In addition, if conditions 1 and 2 above apply, special consideration may be given when such disposal complies with Natural Resources Commission Policy 2606, which states that:

  1.   The owner had made a “reasonable effort*” to properly locate the property lines before the building was constructed but later surveys show the corners used were in error, or
     * “Reasonable Effort” shall be interpreted to mean that a person experienced and licensed in land surveying established the property lines and the survey corners used to locate those property lines and that there is substantial evidence as to their being correct.

  2.   An error was made due to an ambiguity in the deed, or when the wrong legal description was recorded in preparation of the deed.

d.   In the absence of evidence or indication that either of the conditions under "c" existed, the Department may still consider an exchange if conditions i and ii apply, and an ownership adjustment is offered where public values and ownership would be substantially improved beyond the normal settlement ratio.  See item 2(A) below for an explanation of the normal settlement ratio. 

2.   If the Land Exchange Review Committee (LERC) approves land sale or exchange, a recommendation shall be submitted to the Director for final action.

a.   If the land transaction is approved by the Director, the land transaction value ratio shall be a minimum of three times the appraised value of the land in trespass, or three times the transaction cost, whichever is greater, unless otherwise recommended by the LERC and approved by the Director.  In addition, the trespasser shall be responsible for the cost of any survey, appraisal, or other special actions made necessary by the trespass. 

3.   If the LERC or the Director denies the land sale or if the trespasser fails to respond or comply with the LERC decision and notice for settlement within the time period designated, the trespass will be referred to the Attorney General’s Office for legal action.

C.   Trespasser does not remove the building and the DNR is not willing to settle via a land transaction or the land transaction is denied by the LERC or the Director.  In this case, the DNR pursues removal of the structure through the Attorney General’s Office.

II.       Non-Building Trespass:  A trespass that does not involve the placement of a building on state-owned property.  Examples of non-building trespasses include (but are not limited to) fences, trash or other debris, improved yards or gardens, storage areas, roads, driveways, utility lines, septic fields, etc.  A non-building trespass may typically be resolved in one of two ways:

  1. Trespasser voluntarily removes the items.

  2. Trespasser does not remove items in trespass and the DNR pursues removal of the items through the Attorney General’s Office or the Law Enforcement Division (LED).

NOTE:  Specific trespass cases may require a different resolution method than indicated above.

RELATED FORMS & DOCUMENTS:

  1. Trespass Report (R0501) (MSWord template, File, New, ..."General" tab)
  2. Notice of Trespass Placard (PR0502) (MSWord template, File, New, ..."General" tab)
  3. Notice of Trespass sample letter
  4. Notice of Referral sample letter
  5. Referral to Land Use Specialist or Equivalent sample memo
  6. Request for Law Enforcement Division (LED) Assistance sample memo
  7. Request for Attorney General (AG) Assistance (completed by Land Use Specialist or Equivalent)  sample memo
  8. Telephone Conversation Report sample
  9. Trespass Case Closed Letter sample letter
  10. Chronology sample Excel
  11. Land Survey Request (R6050) (MSWord template, File, New, ..."OLAF" tab)
  12. Land Transaction Application (PR6345) (MSWord template, File, New, ..."OLAF" tab)

Trespass Procedure

WHO

DOES WHAT

WHEN

Land Administering Division (LAD) Field Staff

  
 

1.    Discovers potential trespass and verifies location, type, and extent of trespass.

2.    Posts the Notice of Trespass Placard (Sample Attached) on site with pertinent contact information completed.

3.    If the location and extent of trespass onto state land cannot be verified by LAD Field Staff, then staff should submit a survey request (R6050) to the Office of Land and Facilities (OLAF).

During
daily work

LAD Field Staff

    
 

4.    Determines contact information for the individual in trespass.  This information can be obtained at the County Court House. 

5.    Current status of ownership of state lands should be obtained from LOTS and verified.

Immediately
after trespass
has been
 discovered and
 verified.

LAD Field Staff (with Unit Manager approval)

  
 

6.    Completes a Trespass Report (R0501-Sample Attached). 

7.    Following discussion of the file with the Unit Manager, the LAD Field Staff notifies the trespasser of the trespass.  This can be done verbally but must be documented, in writing (via certified mail), with the Notice of Trespass.  Include a copy of the completed trespass report and any site drawings staff has created. The notice should advise that:

A.     The party is in trespass.

B.     They should remove their property/structures and restore the site within 30 days (this timeframe may be lengthened with LAD Field Staff approval in extenuating circumstances). 

In addition, it may be appropriate to follow-up the Notice of Trespass with a phone call to the trespasser to insure receipt of the Notice and understanding of the requirements.

NOTE:  All telephone conversations must be documented.  The Telephone Conversation Report can be used or a brief note may be made.  Documentation must include the persons involved in the conversation, date and time of call.

8.    Initiate use of the file Chronology.  Chronology is to be maintained throughout the life of the trespass.

Following
 verification and
 demarcation of
 trespass in the
 field.

LAD Field Staff

    

 

9.    Forwards a copy of the trespass report, written notice, available surveys and other pertinent information to the District Supervisor and Land Use Specialist or equivalent (If other staff have been involved in the trespass to date and the  LAD Field Staff deems it appropriate, other staff (conservation officer, unit manager, etc.) may be sent a courtesy copy. 

NOTE:  Both the originator of the trespass file and the Land Use Specialist or Equivalent must keep a complete file on each trespass case.  This file is a public record and may be obtainable by external parties under the Freedom of Information Act (FOIA) or through discovery in litigation.  As such the file must be factual and professional. 

Immediately
 following
 notification of
 trespass.

LAD Field Staff

  

 

 

10.  If the items in trespass are voluntarily removed by the trespasser and the issue is resolved, complete the Final Disposition Section of the Trespass Report. 

11.  Send the Trespass Case Closed Letter to the trespasser.

12.   A copy of the Trespass Report (with the Final Disposition Section completed) and the Case Closed letter should be forwarded to the District Supervisor and the Land Use Specialist or Equivalent.

 

Immediately
 following
 verification by the
 LAD Field Staff
 that the items in
 trespass have
 been removed.

LAD Field Staff, Unit Manager or Equivalent

 

 

13.   If the trespasser fails to remove the items by the date specified in the initial Notice of Trespass, staff should send the Notice of Referral to the trespasser via certified mail.

14.   Refer complete copy of file to the Land Use Specialist or Equivalent for review and possible escalated enforcement (See Notice of Referral)

Immediately
 following field
 confirmation that
 the items in
 trespass have not
 been removed by
the specified date.

Land Use Specialist or Equivalent

 

 

15.  The Land Use Specialist or Equivalent will work with Lansing Division Staff, LAD Field Staff, the Office of Legal Services, and/or the LED, and/or the AG’s office to have items legally removed. 

16.  If a determination is made to refer the file to the LED, a Referral to LED (Sample Attached) shall be completed by the Land Use Specialist or Equivalent.

17.  If a determination is made to request AG assistance, Request for Attorney General (AG) Assistance will be completed by the Land Use Specialist or Equivalent for the LAD Chief’s signature.

NOTE: If the trespass is not a building trespass and the trespasser fails to remove the items, a land sale or exchange will generally not be considered.

Will determine
 course of action
 within 90 days of
receipt of Referral
 to Land Use
Specialist or
Equivalent

Trespasser

  

 

 

18.  If the trespass is a building trespass and the trespasser appeals to the DNR in an attempt to offer extraordinary and compelling reasons for continuing to occupy the State-owned land, the trespasser should submit a Land Transaction Application (Sample Attached) and the appropriate application fee to the DNR’s Cashier’s Office. The Land Transaction Application shall be processed in the same manner as other land exchange and land sale requests, which may involve a complete field review and a recommended decision by the LERC. Refer to the Classification Procedure in this document.

Within 30 days
of notification
of trespass.

LAD Field Staff

  

 

 

19.  Upon resolution of the case (either by land sale, exchange, or litigation), the Final Disposition Section of the Trespass Report is completed.  

20.  Send Notice of resolution and a copy of the completed trespass report to the Land Use Specialist or Equivalent, Division Lansing Office, and the Division District Supervisor (Additional staff may be copied if LAD Field Staff finds it appropriate). 

21.  Send the Trespass Case Closed Letter to the trespasser. 

NOTE: The originating office and the Land Use Specialist or Equivalent must maintain a complete copy of the file.

Immediately
Following
Closure of Case.