American Habits: No trespassing means no trespassing, even for the government

January 18, 2024 | By MARK MILLER

Americans think they understand the law. When they drive over the speed limit, they know they risk a speeding ticket. When they enter a piece of private property with signs that warn “no trespassing,” they know that to ignore the fence and signs is to break the law and risk arrest.

Or does it? As it turns out, “no trespassing” does not mean “no trespassing” when the government gets involved. James Meyer found this out the hard way when a game warden trespassed on his property without a warrant.

James and his father, Richard, lived on a nice plot of land in western South Dakota, in an area the locals call “west river.” They often allowed hunters to use their private property for hunting trips. But during one of the trips, a state game warden showed up without a warrant and demanded that the hunters prove they had their hunting licenses — even though they were on the Meyers’ clearly-marked private property.

When the Meyers learned of this trespass, they demanded that the warden leave. Instead, the warden enlisted a federal Bureau of Land Management (BLM) officer — who fortunately sided with the Meyers.

Sadly, what happened to the Meyers wasn’t an anomaly. Soon after, other west river property owners were harassed by state game wardens — and some were even subject to warrantless searches of their homes, according to James.

Finally, in 2021, the South Dakota legislature put a stop to this kind of harassment — passing into law the most private-property-protecting law in the country. The law is called the No Government Trespassing Act, and it protects private property owners from government agents trespassing on their land.

The law stands for the basic American principle that no one, not even a government employee, is above the law. If the public can’t trespass on your private property, then neither can the government.

Unfortunately, South Dakota is the only state in the nation with such a law on the books. It’s about time others started following their lead.

What does the South Dakota law do? Most importantly, it establishes that game wardens can’t cross into private land unless they have a warrant or the permission of the landowner — except for an emergency, to dispatch crippled wildlife, or some threat to public safety.

Second, the bill establishes the rules of the road for the game warden. If the warden trespasses, then any evidence discovered when trespassing is not admissible in court and an arrest or charge for hunting without a license is invalid. This encourages the game wardens to follow the law, just like evidence rules do for law enforcement.

And third, the law gives the landowner the right to go to court if his property rights are violated. At the end of the day few lawsuits will ever arise because wardens will follow the law, but this simply assures that in the unlikely event that a warden fails to follow the law, the property owners have the right to seek relief.

Opponents of the law argue that if you are doing nothing wrong on your property you should have nothing to worry about. And that without the opportunity to check for licenses on private property, we may see negative impacts on wildlife. But upon closer evaluation neither argument holds up.

First, it’s un-American and exactly backwards. If the government suspects that something illegal is going on, it must obtain a warrant before it can enter your home. That should likewise be the case for all private property. This is the essence of liberty.

And to be sure, the environment is important, and we should take steps to conserve it. But if protecting wild game on private property is more important to the public then the owner’s individual right to private property, then the Fifth Amendment provides a simple solution: the government can buy the property from the owner to protect the wildlife. Until that occurs, South Dakota’s law assures that property rights are respected.

The government exists to protect our rights, especially our private property rights. But as South Dakotan James Meyer found out, too often the government, even the Supreme Court of the United States and lower courts, forget that basic function. The No Government Trespassing Act makes sure the government, and the courts, remember.

This op-ed was originally published at American Habits on January 4, 2024.