Given that this is a blog about eminent domain law, it should come as no surprise that the answer to the headline’s question is related to state property law. Until recently, both labor organizers and hunting dogs—or, more accurately, hunters who hunt with dogs—were beneficiaries of laws in different states that permitted them to access certain lands without the owners’ consent. Labor organizers were allowed, under a California regulation, to access the land of agricultural employers during certain periods of the year to try to sign up agriculture workers. Hunters in Virginia are permitted, under a state statute, to enter other people’s land to retrieve dogs that have wandered from the grounds on which the hunters have permission to hunt.
Notably, the description of the California regulation pertaining to labor organizers is phrased in the past tense. At the end of its last term, the Supreme Court held, in Cedar Point Nursery v. Hassid, that the regulation constituted a taking of the employers’ land under the Fifth Amendment. That ruling led to questions before the board of the state agency that regulates hunting in Virginia, the Department of Wildlife Resources (“DWR”), about whether the statute pertaining to retrieval of hunting dogs also constitutes a taking. While the two laws do bear substantial similarities on the surface, a closer look at the court’s opinion and the Virginia statute reveals that the Virginia law is unlikely to run afoul of the rule announced in Cedar Point Nursery.
Cedar Point Nursery v. Hassid
As noted above, the Court’s decision pertained to a California regulation that required agricultural employers to open their premises to union organizers for a limited number of hours during four 30-day periods per year. The case arose when two agricultural employers sued members of the California Agricultural Labor Relations Board seeking declaratory and injunctive relief barring enforcement of the access regulation.
The employers moved for a preliminary injunction barring enforcement of the access regulation during the pendency of the case. The trial court denied the request, holding that the regulation did not constitute a per se physical taking because it did not allow the public to access the employers’ properties in a permanent and continuous manner. The trial court held instead that the regulation had to be evaluated under the fact-intensive balancing test enunciated by the Supreme Court in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). The court went on to deny the request for a preliminary injunction because the employers had not even attempted to show that the regulation constituted a taking under the Penn Central test. A divided panel of the Ninth Circuit affirmed.
The Supreme Court reversed the decision, holding that the regulation was a per se physical taking because it appropriates a right to invade the employers’ property. It went on to hold that even intermittent, as opposed to continuous, and temporary, as opposed to permanent, invasions of property may constitute per se takings requiring compensation. The Court noted that one of the fundamental aspects of property ownership is the right to exclude others from that property. Because the regulation at issue appropriated the employers’ right to exclude, it constituted a per setaking. The Court remanded the case for further proceedings consistent with its opinion.
Virginia Statute
The Virginia statute, commonly called the “Right to Retrieve Law” provides, in relevant part, that, when hunters’ dogs chase game from land on which the hunters have permission to hunt onto prohibited lands, the hunters “may go upon prohibited lands to retrieve their dogs . . . but may not carry firearms or bows and arrows on their persons or hunt any game while thereon.” Va. Code § 18.2-136. Put simply, the statute allows hunters to enter land without the permission of the owner of that land to retrieve their dogs so long as they meet certain conditions, including that they are unarmed and do not hunt game while on the land.
Naturally, landowners have expressed frustration with the Right to Retrieve Law over the years and have unsuccessfully lobbied to have the law changed. For them, the Cedar Point Nursery case was a ray of hope. They believed that, like the regulation at issue in that case, the Right to Retrieve Law similarly limited their right to exclude others from their land. When the board of DWR considered whether to pass a resolution supporting the continuation of the Right to Retrieve Law over the summer, it received testimony from a property owner interest group pointing to the Court’s decision as casting doubt on the constitutionality of the Right to Retrieve Law. Ultimately, the board decided to defer action on the issue and leave questions about whether the law should be maintained or changed to the legislature.
The Right to Retrieve Law is Likely Constitutional
While the landowners’ argument has some surface appeal, any challenge to the statute brought on that basis is unlikely to succeed. When faced with a challenge to a statute, a court is required, if possible, to construe the statute in a way that avoids any conflict with the constitution so that the statute may stand. See VMRC v. Chincoteague Inn, 287 Va. 371, 380 (2014) (noting that courts construe statutes to avoid constitutional conflicts even if the terms of the statute are plain and unambiguous). The Right to Retrieve Law can be construed to avoid any constitutional infirmity by construing it as merely providing a defense to a criminal trespass claim rather than providing a license to hunters to enter property. It is generally recognized that one person does not have a cognizable interest in the criminal prosecution of another. See, e.g., Linda R. v. Richard D., 410 U.S. 614, 619 (1973) (“[I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”). Thus, so long as the statute merely provides a defense to a prosecution for criminal trespass, the owner has not suffered a taking of his or her property rights. The owner may still exercise his or her right to exclude hunters from the land by, among other things, bringing a civil suit against such hunters for trespass.
That construction has the added benefit of appearing to accord with the legislature’s intent in enacting the statute. Before it was moved to the title of the Code pertaining to criminal law when that title was recodified in 1974, the Right to Retrieve Law was found at Va. Code § 29-168, which was in the title pertaining to hunting. A statute in the same chapter provided that “[n]othing in this chapter shall be construed to affect in any way the civil rights of a landowner as against trespassers against his property.” Va. Code § 29-170. The Right to Retrieve Law was thus clearly understood to be a defense to a criminal trespass charge only—the statute recognized that a landowner retained a right to pursue civil remedies against a hunter who trespassed. When the Right to Retrieve Law was moved to the criminal code, the General Assembly failed to move § 29-170 with it. If the General Assembly intended to broaden the scope of the Right to Retrieve Law to immunize a hunter from both civil and criminal liability, moving the statute to the criminal code seems a particularly odd way to do it. It is therefore likely the result of an oversight on the part of the legislature.
Conclusion
While the board of DWR was well-advised to be cautious about the Right to Retrieve Law, it is likely that the statute will survive any court challenge brought against it. Landowners may secure relief against particularly abusive hunters through civil actions and may find success in the legislature. Those that seek wholesale change through the courts, however, are likely to meet with frustration yet again.
The Supreme Court’s decision in Cedar Point Nursery can be found here.
Matt Hull is a Pender & Coward attorney focusing his practice on eminent domain/right of way, local government, and waterfront law matters.
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