The Pacific Legal Foundation (PLF) is following up a 2021 property rights win in the U.S. Supreme Court with a lawsuit over right-to-retrieve law in Virginia, a key piece of dog-hunting practice in the Commonwealth. The PLF says that allowing hunters to go onto private property to retrieve dogs can harm property owners’ privacy, safety, and business.
“A fundamental aspect of property rights is the ability to exclude trespassers from your property. The government cannot grant third-party access that violates your property rights and disturbs your use of your property even if that access is in the form of retrieving a hunting dog,” the PLF said in a Thursday announcement of the lawsuit. “The Supreme Court made this clear in PLF’s 2021 win in Cedar Point Nursery v. Hassid, which held that grants of access like this are uncompensated takings of property under the Fifth Amendment.”
In the lawsuit Medeiros v. Virginia Department of Wildlife Resources, four plaintiffs state that although their property has posted “No Trespassing” signs, their “properties have been overrun frequently by hunting dogs and their owners. The dogs run loose and loudly on Plaintiffs’ properties, disturbing the peace of their private homes, agricultural uses, and leased hunting cabins, chasing deer and presenting a safety risk to Plaintiffs’ clients, livestock, and families.”
The lawsuit says Virginia Code Section 18.2-136 allows hunters to enter private land when hunting for foxes or coons with dogs, and to retrieve their dogs when hunting for any type of game, and argues that if the government is taking private property for public use, it must compensate the property owner.
“The Commonwealth’s enforcement arm for this law, the Department of Wildlife Resources, therefore, must pay the constitutionally mandated just compensation owed to Plaintiffs for the damage and diminution in value resulting from the confiscation of their rights to exclude hunters and dogs from their private lands,” the plaintiffs argue.
Virginia Hunting Dog Alliance (VHDA) Chief Operating Officer Kirby Burch said that the PLF’s press release had inaccuracies.
He said the original right-to-retrieve law was passed in 1938 when dog hunting was already a long-established tradition in Virginia.
“The right-to-retrieve law was passed not to give people free rein to go on land they shouldn’t, but it was giving forgiveness for going on land that otherwise they wouldn’t be able to go on,” Burch told The Virginia Star. “Basically, they have a common-law right under the Necessity Doctrine to retrieve their personal property.”
Burch said that he doesn’t advocate releasing dogs onto private property, and that he helped draft changes to Virginia law in 2016 to ban releasing dogs onto prohibited property. But he said that because hunted wild animals can’t be controlled, sometimes hunting dogs stray from property they are allowed to be in onto private property, necessitating the right to retrieve.
He said that although Virginia has 254,000 licensed hunters, about 60 percent of whom hunt with dogs, there were only 14 complaints about right-to-retrieve violations last year.
“The allegations of damaging property and things like that just aren’t borne out by facts,” he said.
Burch said that eliminating dog hunting would lead to higher populations of deer and bears, leading to more car crashes. He thinks most of the opposition to right-to-retrieve comes from commercial hunters who host hunting on their own property and don’t want the competition for hunted animals.
One of the plaintiffs in Medeiros operates a commercial hunting business, according to the PLF.
“Another plaintiff in the lawsuit is a hunter himself, Robert Pierce, who leases the land he owns through a corporation to other hunters. Those hunters pay for the right to hunt on this property, unlike those who invade the land under the authority of Virginia’s right-to-retrieve law. Not only are dogs and trespassing hunters chasing away Robert’s business, but they also present a danger of accidental shootings,” the PLF release states.
Several legislative efforts have been introduced to kill right-to-retrieve in Virginia, including in the 2022 session. Delegate James Edmunds (R-Halifax) introduced two bills to curtail right-to-retrieve, including HB 1344, which would have required hunters to attempt to contact landowners before going on prohibited lands. That bill passed out of the House 61-39, with 16 Republicans joining all but three Democrats in support of the bill. Still, the Democrat-controlled Senate Agriculture, Conservation, and Natural Resources Committee killed the bill 11 to four.
The Virginia Board of Wildlife Resources is already aware of Cedar Point Nursery v. Hassid. In June 2021, the board passed several resolutions supporting right to retrieve, but dropped one that stated “The Board supports the continuation of the Right to Retrieve.”
“Virginia DWR [Department of Wildlife Resources] sources shared that the Supreme Court decision did factor into the board decision to strike proposed language related to the right-to-retrieve law from the resolution,” The Free Lance-Star reported.
This article originally appeared in The Virginia Star. The opinions expressed in this article are those of the author and do not necessarily reflect the positions of The Republican Standard. Republished with permission.