Plaintiffs say recent U.S. Supreme Court ruling requires state to compensate property owners for trespasses
Three Virginians and a company run by one are suing Virginia’s Department of Wildlife Resources over the state’s controversial right to retrieve law, which allows hunters to go onto private property to retrieve hunting dogs.
All of the plaintiffs have “been subject to repeated invasions by hunters and their dogs acting under color of lawful authority,” argues the suit, which was filed Tuesday in Henrico Circuit Court, where DWR is headquartered.
Those invasions, they say, have led to damages including livestock deaths and loss of business as well as “a diminution in the value of their properties.”
“This case goes to the very definition of private property,” said Daniel Woislaw, the lead attorney for the plaintiffs in the suit. “The right to exclude trespassers from private property is one of the fundamental things that makes property private. And when the government takes away that right, then it has to compensate property owners for that under the Constitution.”
DWR spokesperson Paige Pearson said Thursday that the agency hasn’t yet been served with the suit.
Right to retrieve has been a perennial point of strife in Virginia, particularly in its eastern region where populations are increasing and the use of dogs to hunt deer is a longstanding tradition. There, conflicts have become so heated that some landowners angry at hunters’ presence have even begun setting snare traps for hounds as a deterrent — a development that led one lawmaker to present legislation banning the traps during the most recent General Assembly session. (The proposal failed.)
Nevertheless, the General Assembly has upheld the 1938 law, most recently rejecting proposals to prohibit anyone with a trespassing conviction from exercising the right or to attempt to notify the landowner before entering a private property.
The suit filed in Henrico Circuit Tuesday is being brought by Dinwiddie farmer James Medeiros, Halifax recreational hunting business owner Robert Pierce and Chesterfield horse-boarding business owner Mauricio Tovar. Pierce’s business, Blue Wing LLC, is also listed as a plaintiff.
All four outline various harms they say they have suffered as a result of hunters being allowed to enter their property to retrieve their dogs. Medeiros said dogs have killed his chickens, led to cattle injuries and caused “disruptions to his family life and business operations.” Pierce said posts have been pulled from his gates by hunters seeking their dogs and that lawful users of his recreational hunting property have been repeatedly disrupted, leading to the loss of customers.
“The hunting dogs have become such a nuisance on the Blue Wing Property that Mr. Pierce has installed a kennel to house dogs that can be captured and kept awaiting retrieval by their owners,” the suit alleges.
The plaintiffs are seeking a ruling that Virginia’s right to retrieve law constitutes “an uncompensated physical taking of their property” and are asking for compensation.
The firm they have retained, the national Pacific Legal Foundation, also represented property owners in the recent U.S. Supreme Court case Cedar Point Nursery v. Hassid, where the court found that a California regulation allowing union organizers access to private property constituted a taking that would require compensation to property owners.
In the court’s opinion, Chief Justice John Roberts quoted earlier Supreme Court rulings to conclude that “the right to exclude is ‘universally held to be a fundamental element of the property right,’ and is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’”
Since the June 2021 ruling, Virginia wildlife officials have several times voiced questions about what the Cedar Point case will mean for the state’s right to retrieve law.
“It does clearly perhaps have some applicability with respect to the right to retrieve,” said Virginia Board of Wildlife Resources Chair John Daniel during a meeting several weeks after the decision.
“What’s going on here is similar to what happened in Cedar Point Nursery,” said Woislaw. “Here, you have hundreds being given the right to enter on private property.”