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Given that this is a blog about eminent domain law, it should come as no surprise that the answer to the headline\u2019s question is related to state property law.\u00a0 Until recently, both labor organizers and hunting dogs\u2014or, more accurately, hunters who hunt with dogs\u2014were beneficiaries of laws in different states that permitted them to access certain lands without the owners\u2019 consent.\u00a0 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.\u00a0 Hunters in Virginia are permitted, under a state statute, to enter other people\u2019s land to retrieve dogs that have wandered from the grounds on which the hunters have permission to hunt.<\/p>\n
Notably, the description of the California regulation pertaining to labor organizers is phrased in the past tense.\u00a0 At the end of its last term, the Supreme Court held, in Cedar Point Nursery v. Hassid<\/em>, that the regulation constituted a taking of the employers\u2019 land under the Fifth Amendment.\u00a0 That ruling led to questions before the board of the state agency that regulates hunting in Virginia, the Department of Wildlife Resources (\u201cDWR\u201d), about whether the statute pertaining to retrieval of hunting dogs also constitutes a taking.\u00a0 While the two laws do bear substantial similarities on the surface, a closer look at the court\u2019s opinion and the Virginia statute reveals that the Virginia law is unlikely to run afoul of the rule announced in Cedar Point Nursery<\/em>.<\/p>\n Cedar Point Nursery v. Hassid<\/strong><\/p>\n As noted above, the Court\u2019s 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.\u00a0 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.<\/p>\n The employers moved for a preliminary injunction barring enforcement of the access regulation during the pendency of the case.\u00a0 The trial court denied the request, holding that the regulation did not constitute a per se <\/em>physical taking because it did not allow the public to access the employers\u2019 properties in a permanent and continuous manner.\u00a0 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<\/em>, 438 U.S. 104 (1978).\u00a0 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 <\/em>test.\u00a0 A divided panel of the Ninth Circuit affirmed.<\/p>\n The Supreme Court reversed the decision, holding that the regulation was a per se<\/em> physical taking because it appropriates a right to invade the employers\u2019 property.\u00a0 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 <\/em>takings requiring compensation.\u00a0 The Court noted that one of the fundamental aspects of property ownership is the right to exclude others from that property.\u00a0 Because the regulation at issue appropriated the employers\u2019 right to exclude, it constituted a per se<\/em>taking.\u00a0 The Court remanded the case for further proceedings consistent with its opinion.<\/p>\n Virginia Statute<\/strong><\/p>\n The Virginia statute, commonly called the \u201cRight to Retrieve Law\u201d provides, in relevant part, that, when hunters\u2019 dogs chase game from land on which the hunters have permission to hunt onto prohibited lands, the hunters \u201cmay 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.\u201d\u00a0 Va. Code \u00a7 18.2-136.\u00a0 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.<\/p>\n Naturally, landowners have expressed frustration with the Right to Retrieve Law over the years and have unsuccessfully lobbied to have the law changed.\u00a0 For them, the Cedar Point Nursery<\/em> case was a ray of hope.\u00a0 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.\u00a0 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\u2019s decision as casting doubt on the constitutionality of the Right to Retrieve Law. \u00a0Ultimately, the board decided to defer action on the issue and leave questions about whether the law should be maintained or changed to the legislature.<\/p>\n The Right to Retrieve Law is Likely Constitutional<\/strong><\/p>\n While the landowners\u2019 argument has some surface appeal, any challenge to the statute brought on that basis is unlikely to succeed.\u00a0 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.\u00a0 See VMRC v. Chincoteague Inn<\/em>, 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).\u00a0 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.\u00a0 It is generally recognized that one person does not have a cognizable interest in the criminal prosecution of another.\u00a0 See, e.g.<\/em>, Linda R. v. Richard D.<\/em>, 410 U.S. 614, 619 (1973) (\u201c[I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.\u201d).\u00a0 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.\u00a0 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.<\/p>\n That construction has the added benefit of appearing to accord with the legislature\u2019s intent in enacting the statute.\u00a0 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 \u00a7 29-168, which was in the title pertaining to hunting.\u00a0 A statute in the same chapter provided that \u201c[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.\u201d\u00a0 Va. Code \u00a7 29-170.\u00a0 The Right to Retrieve Law was thus clearly understood to be a defense to a criminal trespass charge only\u2014the statute recognized that a landowner retained a right to pursue civil remedies against a hunter who trespassed.\u00a0 When the Right to Retrieve Law was moved to the criminal code, the General Assembly failed to move \u00a7 29-170 with it.\u00a0 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.\u00a0 It is therefore likely the result of an oversight on the part of the legislature.<\/p>\n Conclusion<\/strong><\/p>\n 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.\u00a0 Landowners may secure relief against particularly abusive hunters through civil actions and may find success in the legislature.\u00a0 Those that seek wholesale change through the courts, however, are likely to meet with frustration yet again.<\/p>\n The Supreme Court\u2019s decision in Cedar Point Nursery<\/em> can be found here<\/a>.<\/p>\n Matt Hull<\/a> is a Pender & Coward attorney focusing his practice on eminent domain\/right of way<\/a>, local government, and waterfront law matters. <\/em>