Vern Evans
A lawsuit filed by two Pennsylvania hunting clubs against the state’s Game Commission has now reached the State Supreme Court. The court heard oral arguments Wednesday about the case, which revolves around 4th Amendment rights and whether game wardens should be allowed to search posted private lands without a warrant or probable cause.
In most U.S. states, game wardens have this power under the Open Field Doctrine. This long-standing legal principle permits state and federal law enforcement to monitor and surveil private lands without a warrant or probable cause, and says that these activities do not constitute unlawful searches and seizures under the 4th Amendment. It applies to all private lands except occupied homes and buildings and the “curtilage,” meaning the property immediately surrounding those buildings.
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The lawsuit that was heard in the State Supreme Court Wednesday challenges that idea. It seeks to overturn three Pennsylvania statutes, as well as a precedent-setting 2007 court case that reinforced the state’s adherence to the Open Field Doctrine.
Joshua Windham, an attorney with the Institute for Justice, is representing the plaintiffs, the Punxsutawney and Pitch Pine Hunting Clubs. Together, the two clubs own thousands of acres in Clearfield County, where members hunt deer, bear, and other game. Although that acreage is posted with “No Trespassing” signs, the two hunting clubs claim that between 2013 and 2021, officers with the Pennsylvania Game Commission routinely ignored those signs and bypassed locked gates in order to enter the properties and surveil the hunters without warrants.
Windham tells Outdoor Life that, to his clients’ knowledge, PGC officers entered private lands owned by the two clubs on at least 22 occasions over that period of time. He says that in addition to sneaking around and checking club members for compliance with state wildlife laws, those officers hung trail cameras so they could spy on the clubs remotely. Although some citations were issued to hunters, Windham says none of them amounted to more than a minor violation.
As an example, Windham says there was one occasion where a club member had parked his truck on the property and walked down a trail, not realizing that a PGC officer was watching him. The game warden followed the man roughly 100 yards down the trail, and then confronted him to ask for his hunting license.
“The hunter said, ‘It’s in my truck.’ And the officer said, ‘Well, you have to have it on your person, so here’s a ticket,’” Windham says. “These were mostly technical violations. It’s not like we’re talking about prolific poachers, or people who were intentionally violating game laws.”
Because of incidents like this one, Windham explains, club members say they’ve felt harassed and intruded upon by PGC. They say it’s hard for them to enjoy hunting on their own land when they feel like they’re being constantly monitored. Windham also argues that it’s dangerous, since a key tenet of hunter safety is knowing your target and surroundings, and that is hard to do when officers are wandering around in the woods.
“We feel like we’re invaded,” Punxsutawney Hunting Club board president Frank Stockdale said in a news conference before the State Supreme Court hearing Wednesday. “We see game wardens on bicycles [and] in their trucks on our private property, which is completely gated and has no trespassing signs around the property. We feel like we’ve been harassed.”
Windham makes it clear that their lawsuit is not anti-law-enforcement. He says the plaintiffs realize that PGC officers have a difficult job protecting the state’s fish and wildlife resources, and they recognize that policing private lands is necessary. Roughly 84 percent of Pennsylvania’s land is privately owned, so it would be nearly impossible for game wardens to investigate potential poaching or wildlife crimes without accessing those private lands.
“We’re just saying that game wardens should operate under the same standards that police [and other law enforcement] do in every other context where a person could commit a crime on private property — and that’s by establishing probable cause and getting a warrant from a judge.”
This would be a major shift for PGC, and Windham says the only way the plaintiffs can win their case is if the Supreme Court overturns a 2007 case, Commonwealth v. Russo, in which a hunter was prosecuted for killing a black bear over bait on his own land. Russo, the hunter, filed to suppress the evidence collected during the warrantless search that led to the citation, and he claimed in the case that he should have “a reasonable expectation of privacy” from game wardens on his posted private property. The court ruled against the hunter, which reinforced Pennsylvania’s adherence to the Open Field Doctrine.
Windham says they have a decent chance at overturning the case, especially in light of a 2024 court decision in Tennessee, which found that warrantless searches on private land are unconstitutional.
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Windham was an attorney in that case, too, and he says it included similar circumstances —— game wardens entering private lands to install trail cameras and spy on hunters. The judge in that case called the practice “a disturbing assertion of power on behalf of the government,” and he even drew comparisons to the tyrannies colonial Americans were subjected to under British rule.
“It’s kind of shocking how broad this Open Field Doctrine is … we found in a study that about 96 percent of all private land in the country falls under this doctrine. That’s about 1.2 billion acres,” Windham says. “So, we’re talking about this rule of law that exposes basically all private land in the country to limitless surveillance. And that’s a pretty shocking thing to say out loud. It’s a pretty shocking thing to think about.”
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