A supporter of right to retrieve greets then-Speaker William Howell outside the Virginia Capitol during the 2017 General Assembly session. (Graham Moomaw)
A unique Virginia law dating to 1938 that allows hunters to go on other landowners’ property without permission to retrieve hunting dogs continues to raise hackles throughout the eastern part of the state and could be put in jeopardy by a recent U.S. Supreme Court ruling.
“Right to retrieve” has been causing strife for more than a decade between hunters who use dogs to track their quarry — most often deer — and landowners onto whose property the dogs sometimes stray.
It’s likely to continue to do so. On Monday, the Virginia Board of Wildlife Resources in a special meeting voted to defer any action on part of a resolution that would have asked the General Assembly to consider amending the law to add a landowner notification requirement under certain circumstances, while also affirming the right to retrieve.
“I don’t think there’s much this board has to do with whether or not the General Assembly is going to consider a statutory amendment,” said board chair John Daniel. “I think this is clearly going to be an issue in the General Assembly.”
It could also be an issue in the courts. On Monday, wildlife officials repeatedly expressed uncertainty about what the U.S. Supreme Court’s June 23 ruling in Cedar Point Nursery v. Hassid would mean for Virginia’s right to retrieve law. In that case, the court found that a California regulation requiring agricultural employers to allow union organizers onto their property for up to three hours a day, 120 days per year, “appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking.”
“The government here has appropriated a right of access to private property. Because the regulation appropriates a right to physically invade the growers’ property — to literally ‘take access’ — it constitutes a per se physical taking under the Court’s precedents,” Chief Justice John Roberts wrote in the majority opinion.
But while Department of Wildlife Resources Executive Director Ryan Brown called the ruling “an issue for the judiciary, but not one for the board,” the board itself seemed more uncertain.
“I think for us to make specific suggestions would be somewhat irresponsible at this point in time,” Daniel said after a short closed session during which the board received legal counsel. “I think circumstances have changed since we proposed the original board resolution draft, and I think that’s why deferral … makes sense at this time.”
Hunters say hunting deer with dogs is a deeply rooted tradition, one that’s been practiced in eastern and Central Virginia for more than 400 years. (The activity is prohibited west of the “dog line,” which follows the thrust of the Blue Ridge Mountains, due to both a history of overharvesting of deer populations and less regional attachment to the tradition.)
“Hound hunting has been legal in Virginia for centuries,” hunter Ronald Wood told the wildlife board at Monday’s meeting. “I believe the biggest problem hound hunters face is folks who do not embrace rural Virginia for what it was, what it is and hopefully what it will remain.”
Landowners, however, have complained that the right to retrieve infringes on private property rights, and that they have little recourse against bad actors.
“Property rights of the dog owner should not supersede the property rights of the landowner,” testified Christopher Patton Monday. “Trespassing should never be allowed, and the right to retrieval should be done away with in its entirety.”
The fight isn’t a new one. Since the turn of the millennium, suburban encroachment and a growing population moving from urban to rural areas have heightened tensions over right to retrieve. Officials have commissioned several studies on the problem: the 121-page “Hunting with Hounds in Virginia: A Way Forward” appeared in 2008, while the more recent “Report on Deer Hunting with Dogs” came out in 2016.
The “trends of increased land development, reductions in forested parcel size, and decreased agricultural uses will undoubtedly continue to strain the compatibility of traditional hound hunting with changing cultural expectations,” the latter found. “These changing ownerships and land uses can also undermine the traditional relationships that hunters have nurtured with landowners in their community.”
Those strains are evident in state agency data as well. Several dozen complaints about right to retrieve are lodged with the Virginia Department of Wildlife Resources every year, with 42 logged between July 1, 2020, and Jan. 2, 2021.
As the conflict has grown, it has even spilled into the legislature. In 2017, then-Speaker William Howell proposed a bill that would have done away with right to retrieve but faced vigorous opposition. A bill patroned by Sen. Dave Marsden, D-Fairfax, in 2020 also failed to overturn the law.
The Board of Wildlife Resources on Monday did take several small steps to resolve dog hunting conflicts. The final resolution passed by the board recommends that the legislature amend a different code section to require that hunting dogs wear collars with their owner’s name and contact information, directs the development of a dog hunting ethics module for the state hunter education program and orders a review of permits issued for foxhound field trials.
But on right to retrieve, outside of Richmond, there are few signs a compromise will be reached anytime soon. Opponents have largely separated into factions, represented on one side by the Old Dominion Property Rights Alliance and on the other by the Virginia Hunting Dog Alliance. On Monday, neither expressed much faith in ongoing deliberations.
“We disagree that the most effective means of avoiding and resolving conflict are and will always be constructive relationships and dialogue among individuals, clubs, organizations and the department,” said Judge Charlton, a Charlotte County resident and president of the Old Dominion Property Rights Alliance. Fifteen years ago that “may have been a good place to start, but it has proven ineffective,” he added. “The fact is deer dog hunters are unwilling to compromise, and landowners simply have nothing to offer.”
John Morse of the Virginia Hunting Dog Alliance similarly told the Board of Wildlife Resources that he had “significant doubts as to whether the people who are against dog hunting are willing to compromise on anything until we’re out of business.”
Furthermore, he said, “opening the right to retrieve code to the legislative process opens the door to legislators with an anti-hunting bias to initiate anti-hunting measures.”
Whether the Supreme Court’s Cedar Point ruling will break the deadlock remains unclear. Opponents of right to retrieve cited Roberts’ opinion Monday, quoting its conclusion that “the right to exclude is ‘one of the most treasured’ rights of property ownership” in their defense.
But Julia Mahoney, a law professor at the University of Virginia and an expert on property and constitutional law, told the Mercury that she was “skeptical that Cedar Point is going to have a significant impact on right to retrieve and similar regulations.”
“The right to retrieve is limited in time, limited in scope, a response to exigent circumstances … that is, something urgent, the retrieval of an animal,” she said. And “although the right to exclude is strong and very very important, the right to exclude is not and never has been unlimited.”
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