Hunters’ ‘right to retrieve’ tramples property owners’ right to exclude trespassers

Jim Medeiros and his family run their own business, White Oak Meadows, on land they bought in 2012 in Dinwiddie County, Virginia. Located outside of Richmond, the family cultivates environmentally responsible forest and farm products, including beef and poultry raised solely on grasses and native vegetation. 

Ranching can be a tough-enough industry when dealing with natural challenges. But every year, Jim runs into a man-made problem with hunters—and their hunting dogs.  

Using dogs to hunt game, especially deer, is a longstanding practice in Virginia, dating back to a time when 20,000-acre farms provided plenty of room for chases that can cover more than two miles. Nowadays, however, with more people and less farmland, available private hunting grounds are usually 5,000 acres or smaller, and rarely adjacent, so hunting dogs cross over onto others’ private property. 

Virginia is one of just two states that allow hunters to access private property to retrieve their hunting dogs. 

The law is typically invoked during deer hunting season, but it applies to a number of game animals with year-round seasons. Hunters aren’t required to give property owners notice. And in practice, hunters can use the cover of other game’s hunting seasons and access rules to gain year-round access to actively hunt on private property, rather than merely retrieve wandering hounds. 

While safety and privacy are grave concerns for Jim, the unannounced invasions by dogs and hunters also impact his business. White Oak Meadows has lost livestock and poultry to marauding hounds, and the dogs have upset cows and disrupted their milking process. 

Jim and several other rural property owners filed a lawsuit against the Virginia Department of Wildlife Resources. Represented by Pacific Legal Foundation, the property owners argued the state can’t give hunters a free license to trespass on private property. 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 lawsuit pointed to a 2021 PLF victory at the Supreme Court: Cedar Point Nursery v. Hassid, which held that grants of access like this are uncompensated takings of property under the Fifth Amendment. 

But the trial court disagreed that Virginia’s right-to-retrieve law constitutes a taking. In a partial victory for the property owners, the court clarified that the law doesn’t grant hunters access to private property; instead, it merely decriminalizes certain trespasses by those hunting with dogs. While the ruling was disappointing in that it didn’t find the retrieval law unconstitutional, it did affirm that hunters can’t claim full access to private property.