This story was reported and written by our media partner the Virginia Mercury.
Three Virginia residents’ legal challenge to state code tied to one of Virginia’s oldest traditions, the “right to retrieve” hunting law, has been dismissed, as, just ahead of deer hunting season, state officials will soon consider changes to the measure that allows hunters to go onto private property to get their dogs.
James Medeiros, of Dinwiddie County, and Mauricio Tover and Robert Pierce, who own property through Blue Wing LLC, of Halifax County, sued the Virginia Department of Wildlife Resources in April 2022 in Henrico County Circuit Court over a challenge to the law, stating that it amounted to the government turning their private property into a public use, which is known as a “taking.”
Taking requires that the government compensate the property owners under the Fifth Amendment’s Just Compensation Clause and Article I, § 11 of the Virginia Constitution.
An appeals court rejected a challenge to the lower court’s decision. The Supreme Court of Virginia affirmed that decision in September.
What is the ‘right to retrieve’ law?
Virginia’s right to retrieve law was created in 1936 to allow fox and raccoon hunters to go onto other people’s property without permission in order to retrieve their hunting dogs. Now, deer and bear hunters use the law.
The hunters will let the dogs run around property they’re allowed to be on to scare up animals to harvest. But, sometimes, the hunted animals will run onto another property and the dogs will chase them there too, meaning the hunters will need to go retrieve them if they don’t return, even without the property owner’s permission.
The issue of roaming hunting dogs has escalated largely in the eastern and Middle Peninsula regions in the state. Three hunting dogs were killed in King and Queen County in January, and a hunting dog was killed by a Caroline County couple in 2019.
Hound hunters’ style is in contrast to still hunters, who sit in tree stands, quietly waiting for deer to cross their path before taking them.
Using dogs for hunting is now part of the hunting industry that is estimated to contribute over $877 million annually to the state’s economy, but it dates back to the early colonial period, with hunters mounted on horses following foxes and raccoons.
“George Washington and Thomas Jefferson were both avid foxhunters,” wrote Virginia Assistant Solicitor General Jordan Minot, who argued against the challenge on behalf of DWR. “George Washington also had a specialized breed of raccoon dogs, gifts from the Marquis de Lafayette.”
What was the basis of the lawsuit?
Medeiros, one of the appellants, said hunting dogs roaming onto his property caused a nuisance and loss of “time, money and even animals,” as the dogs “ripped” his free-range hens to pieces. Tover, similarly, said the dogs could spook horses being ridden at his stable, throwing and trampling riders. Pierce said his property is rented out to hikers, who could get caught in crossfire from the hunters. They said those risks justified compensation from the state.
The attorney for the appellants, Daniel Woislaw, of the Pacific Legal Foundation, argued in Henrico County, the appeals court and the Supreme Court of Virginia that the law clearly states its intent is to grant “access to private properties for the public use of hunting with dogs.”
Woislaw arguments relied on a case he previously argued and won in 2021, Cedar Point Nursery v. Hassid, which found that a California regulation allowing union organizers’ access to private property constituted a taking, requiring compensation to property owners.
But Minot, for the state, argued that nothing in the law prohibits land owners from building fences or barriers to prevent dogs and hunters from entering their property during hunts.
Also under the law, there’s an ability for civil remedies, such as property owners suing for damages to land or livestock, and prohibitions on hunters carrying weapons while retrieving their dogs. Hunters must also identify themselves or face a penalty.
The law is meant to create an exception under trespass penalties, Minot argued, adding, “the statute ‘takes’ no property rights from them.”
Woislaw argued that the law is not written in the same way other legal exceptions for criminal penalties are, but the Henrico County Circuit Court dismissed the case, citing that the law was only that, “an exception to criminal trespass,” and the “plaintiffs failed to state a claim upon which relief can be granted.”
In July 2023, the court of appeals decided not to take up a challenge over the lower court’s decision because there wasn’t a transcript of the oral arguments in the case. Without testimony or new evidence, attorneys agreed to not request a court recorder during the oral argument.
Woislaw argued to the Supreme Court in February that a transcript wasn’t necessary, and the circuit court’s order was “a complete and sufficient record for review.” But the Supreme Court of Virginia wrote in its Sept. 26 order “the Court is of the opinion that there is no reversible error in the judgment of the Court of Appeals,” ending the case.
Woislaw, in a statement to the Mercury, said he was “disappointed” in the supreme court ruling but that the issue likely isn’t over.
“Jim Medeiros and other property owners across the Commonwealth whose lands have been flooded by hunters and hounds each hunting season deserve a firmer and more broad-reaching precedent,” Woislaw said. “Virginia’s rural property owners are not ones to sit on their rights and it is very likely this question will be back before Virginia’s highest court before long.”
Attorney General Jason Miyares, in a statement about the Supreme Court of Virginia’s decision, stated the law has existed “without incident,” for over 100 years.
“Virginia hunters treat their dogs as family, and there are fewer traditions more prized by rural Virginians than our hunting dogs,” Miyars said. “More than half of hunters in Virginia use hunting dogs, and fewer than 60 out of 6,000 hunting complaints involved trespass violations involving hunting dogs.”
New regulations?
The Supreme Court ruling comes as the Board of Wildlife Resources is considering changes to the right to retrieve regulations at its meeting on Oct. 24.
Following failed legislative attempts to change the law, months of work by a stakeholder advisory committee led to two recommendations made earlier this year. One would require hound hunters to use global positioning system collars on their dogs to better track where they are. The other would require hound hunters to make “reasonable” attempts to prevent dogs from entering a property after “after receiving notification that the hunter’s hunting dogs are not desired on the landowner’s property.”
During a meeting in March, property owners generally supported the measures as a way to control roaming dogs, but they also had concerns over a potential increase in conflicts from notifying hunters that their dogs aren’t welcome. The hunters saw the proposals as barriers to the tradition they’ve long loved and said the collars could be cost-prohibitive. One audience member had to be escorted out after a heated exchange with Board of Wildlife Resource member Woody Woodall.
The board ultimately voted to move forward with the recommendations, which have received 3,471 comments through the DWR website, mail, email and Town Hall website, the latter of which getting about 300 comments on the GPS collars recommendation, mostly in opposition, and 1,220 comments on the notification requirements, also mostly in opposition.
“The Board will consider these proposals at its October meeting on 10/24” said Shelby Crouch, a spokesperson for DWR, the state agency that oversees Virginia’s hunting regulations. “The exact effective date on any new regulation approved by the Board is at the Board’s discretion and in accordance with state code.”
Deer hunting season runs from November into early January.
