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In a previous blog post<\/a>, we explained that landowners in Virginia were threatening to challenge a state statute that they say permits landowners to enter private property to retrieve hunting dogs as a taking of their property under the rationale announced in Cedar Point Nursery v. Hassid<\/em>, 141 S. Ct. 844 (2020).\u00a0 We also warned that such a lawsuit was bound for failure, as the statute, commonly called the \u201cright to retrieve law,\u201d should be construed as granting only a defense to a criminal trespass charge, not an enforceable right to enter privately-owned land.\u00a0 We further noted that, under such a construction, landowners could still enforce their right to exclude others from their property using civil trespass actions.\u00a0 Earlier this year, the Pacific Legal Foundation ignored this warning and filed, with much fanfare<\/a>, a lawsuit on behalf of a group of landowners in Henrico Circuit Court demanding that Virginia\u2019s Department of Wildlife Resources (\u201cDWR\u201d) compensate them for the statute\u2019s taking of their right to exclude hunters from their land.\u00a0 With much less fanfare, the lawsuit met the ignominious end predicted in our earlier post.<\/p>\n \u00a0The plaintiffs in the case own large parcels that are posted with no trespassing signs and used in various ways.\u00a0 For instance, one plaintiff owns a dairy and poultry farm, while another leases his land to hunting clubs.\u00a0 Each plaintiff reported that unauthorized hunters frequently enter their land to retrieve errant hunting dogs, claiming that they have a right to do so under the right to retrieve statute.\u00a0 The free-ranging dogs allegedly terrorized both farm animals and other guests on the properties and otherwise disrupted the landowners\u2019 business operations.\u00a0 They further alleged that they had erected barriers to unauthorized entry that some hunters had gone so far as to remove.\u00a0 The plaintiffs sought compensation for the trespasses onto their property from the DWR, which they called the state\u2019s \u201cenforcement arm\u201d for the right-to-retrieve law.<\/p>\n The DWR filed a demurrer, arguing that the right to retrieve law is simply a defense to a criminal trespass action, not a state-sponsored right to enter the lands of others.\u00a0 The DWR also argued that the plaintiffs had failed to allege that the agency had done anything to infringe their property rights.\u00a0 Specifically, the agency pointed out that it did not pass the law, nor did it direct hunters onto the plaintiffs\u2019 property.\u00a0 The agency thus noted that the plaintiffs apparently chose it as a defendant simply because it refused to arrest hunters who had entered the plaintiffs\u2019 properties despite the fact that those hunters had committed no crime.\u00a0 Finally, the agency pointed out that, unlike the Cedar Point Nursery <\/em>case, the landowners here could erect a fence or other barrier, and the agency could do nothing to force the landowners to remove the obstacles.<\/p>\n In response, the landowners disputed that civil trespass actions against hunters retrieving hunting dogs remained viable under the right to retrieve law.\u00a0 They argued that the statute\u2019s text, which stated that hunters \u201cmay go upon prohibited lands to retrieve their dogs,\u201d conveyed a right or privilege to access their lands.\u00a0 They also claimed that DWR was the appropriate defendant to pay compensation for the alleged taking because a statute made that agency responsible for the state\u2019s hunting and fishing laws, of which the right to retrieve law is a part.<\/p>\n The trial court ultimately agreed with the agency, granted its demurrer, and dismissed the case with prejudice.\u00a0 The Pacific Legal Foundation has filed a notice of appeal on behalf of the landowners.\u00a0 It is not currently known when the Court of Appeals will hear the case.<\/p>\nMatt Hull<\/a> is a Pender & Coward attorney focusing his practice on eminent domain\/right of way<\/a>, local government, and waterfront law matters. <\/em>\n