Government officials have 'unqualified access to private land;' hunters sue to change Open Fields doctrine

The Open Fields doctrine has allowed government officials access
to private land. (Photo by Institute for Justice via Farm Journal)

Sometimes private land isn't private, and in states such as Pennsylvania, the question, "How much power does the government claim on private land?" is answered by a court ruling, reports Chris Bennett of Farm Journal. On Sept. 29, a "court ruled against two hunting clubs in their lawsuit accusing the Pennsylvania Game Commission of private property rights violations. . . . In its ruling, the Commonwealth Court of Pennsylvania noted the government's absolute power to 'roam private land without consent, warrants, or probable cause.'"

The hunting clubs, Pitch Pine and Punxsutawney sued PGC "after game wardens consistently entered club lands without permission or warrant, and secretly monitored club members, including photo collection via installation of a hidden game camera," Bennett writes. "The wardens' behavior, the lawsuit asserted, was a direct violation of Pennsylvania's state constitution, which explicitly protects 'persons, houses, papers, and possessions.'"

The Open Fields doctrine allows state and federal officials "unqualified access to private land" without requiring a warrant to "enter or surveil private land," Bennett reports. "The Commonwealth Court detailed the alarming powers and 'unfettered discretion' assumed by the government via Open Fields: To ensure their members' privacy, the Hunting Clubs have posted their properties with no trespassing signs and have installed gates at all entrances to exclude nonmembers and intruders. However, the Entry Statutes empower game wardens with unfettered discretion to enter upon and roam private land without consent, warrants, or probable cause."

"Six states place state constitutional authority above the Open Fields doctrine: Mississippi, Montana, New York, Oregon, Vermont, and Washington," Bennett writes. The Institute for Justice represents Pitch Pine and Punxsutawney is appealing the decision. "Arguments before the Pennsylvania Supreme Court should take place in 2024, with a decision likely in 2025. IJ is litigating similar Open Fields cases in Virginia and Tennessee about warrantless intrusions on private land."

(For more on Open Fields, see How Much Ag Property Is Protected From a Warrantless Search?)