COURT OF APPEALS DECISION DATED AND FILED May 18, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Appellant, v. Gary W. Blinkwolt,
Defendant-Respondent. |
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APPEAL
from a judgment of the circuit court for
¶1 BRUNNER, J.[1] The State of Wisconsin appeals from a judgment finding Gary Blinkwolt not guilty of hunting over illegal deer bait contrary to Wis. Admin. Code § NR 10.07(2) (Oct. 2009). The State contends Blinkwolt failed to sufficiently prove he was engaged in a normal agricultural practice and therefore exempt from § NR 10.07(2)’s prohibition. Based on the evidence presented, we conclude a reasonable trier of fact could find Blinkwolt was engaged in the normal agricultural practice of composting. Consequently, we affirm.
BACKGROUND
¶2 Evidence adduced at trial and accepted by the circuit court establishes that Blinkwolt has grown and sold pumpkins on his farm since 2004. Blinkwolt primarily grew the pumpkins in a patch near his farmhouse, but also established a small field near his tree stand in which he grew pumpkin, squash and corn. Blinkwolt returned unsold crop to the small field to decompose.
¶3 On November 19, 2008, Department of Natural Resources Warden Susan Miller investigated suspected baiting observed by air. She discovered Blinkwolt in his tree stand, bow hunting over piles of corn, squash, and shattered pumpkins. Blinkwolt explained his composting practice and that he harvested seeds from large pumpkins for the next year’s crop. In addition, Blinkwolt stated his tractor was broken and he could not till the compost because the ground was frozen by the time the tractor was repaired. Miller cited Blinkwolt for hunting deer over more than two gallons of bait in violation of Wis. Admin. Code § NR 10.07(2).
¶4 Blinkwolt contested the citation, arguing he was engaged in a normal agricultural practice as allowed under Wis. Admin. Code § NR 10.07(2)(b)5. (Oct. 2009). The circuit court agreed, finding Blinkwolt “was growing pumpkins there. He’s clearly in the business of selling pumpkins …. When you harvest pumpkins, you have to deal with them, and returning them to the soil where they were grown is a reasonable agricultural practice.”
DISCUSSION
¶5
¶6 The State’s argument presents a mixed question of law and
fact.[3] We will uphold the trial court’s findings of
historical fact unless clearly erroneous.
State v. Lala, 2009 WI App 137, ¶8, 321
¶7 The trial court determined Blinkwolt deposited unsold
pumpkin, corn and squash at the location they were grown to revitalize the
soil.
¶8 Having determined that composting is a normal agricultural
practice, the sole remaining question is whether Blinkwolt presented sufficient
credible evidence of that activity. Blinkwolt
testified he brought some unsold crop back to the field near the tree stand to
compost. He explained he smashed large
pumpkins to remove seeds for future use and left the remnants to decompose. Blinkwolt elucidated his failure to till the
decaying crop, noting his tractor was broken and, by the time it was repaired,
the ground was frozen. The trial court
accepted Blinkwolt’s testimony, and we will not reverse a credibility
determination unless the testimony is incredible as a matter of law.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Wisconsin
Stat. § 29.336(4) permits deer feeding for hunting purposes in
certain counties (including Washburn) if:
(a) Not more than two gallons of material are at the feeding site.
(b) No feeding site is closer than 100 yards of another feeding site.
(c) The person does not place more than two gallons of material in any area comprising forty acres or less.
(d) The material used to feed deer does not contain any animal part or animal byproduct.
See also Wis. Admin. Code § NR 10.07(2m) (Oct. 2009). Blinkwolt concedes the crop beneath his tree
stand exceeded two gallons. Wisconsin Stat. § 29.336 therefore
does not apply.
[3] Citing Michels Pipeline Construction,
Inc. v. LIRC, 197
[4] Wisconsin Department of Natural Resources, Pub WA-182, Home Composting: The Complete Composter 2 (2005), http://www.dnr.state.wi.us/org/aw/wm/ publications/anewpub/WA182.pdf.