On June 7, a property owner in Virginia filed suit against the Virginia Department of Wildlife Resources (VDWR) and three conservation officers that work for the state agency. In his lawsuit, filed in Henrico County Circuit Court, Josh Highlander claims that multiple game wardens wearing camouflage entered his private 30-acre parcel without his consent or knowledge—alarming his wife and young son and confiscating a game camera in the process.
Highlander is being represented in his case by the Institute for Justice (IJ), a non-profit Arlington-based law firm with a history of backing landowners in private property disputes against state wildlife agencies. According to IJ, the incident occurred on April 8, 2023, the opening day of Virginia’s spring turkey season.
The lawsuit says that Highlander legally harvested a turkey on his property on the morning of April 8 before logging his kill on the VDWR mobile app. It then alleges that, several hours later, three VDWR officers parked their trucks in a cul de sac, a few hundred yards from the property line, and walked through an adjacent private parcel into Highlander’s woods.
According to Highlander, his wife spotted a camouflaged figure moving through a forested part of the family property that afternoon while playing basketball with their 6-year-old son. When she alerted Highlander to the person’s presence, he said he went outside to check the woods, finding only an empty post where one of his game cameras had been mounted in the middle of a food plot.
Under Investigation
Highlander’s brother, Rob Highlander Jr., was cited for hunting turkeys over bait several miles east of Josh Highlander’s property on the same day that the alleged incident took place by one of the officers he is suing. According to the lawsuit, responding agents seized two of Rob Highlander’s trail cameras after issuing those citations.
Rob Jr. is contesting that ticket, saying that he was hunting turkeys on a legal food plot with no bait. He says the bait that the agents accused him of using was actually fresh millet seed that he’d legally spread while replenishing the food plot earlier in the year. Virginia wildlife code defines “bait” as “any food, grain, or other consumable substance that could serve as a lure or attractant.”
When contacted by Field & Stream, the Virginia Department of Wildlife Resources declined to comment on any specifics related to the “pending litigation.” But VDWR Public Information Officer Paige Pearson confirmed in an email that it is lawful for a Virginia game warden to carry out an active investigation on private property without a warrant—or the consent or knowledge of the landowner—so long as those activities are executed “within constitutional bounds.” It is also lawful, she confirmed, for a warden to deploy game cameras on private property, or to seize game cameras off of private property during an investigation—again, as long as it’s done “within constitutional bounds.”
The IJ is arguing that the Virginia State Constitution forbids warrantless search and seizure on private property, even in “open fields” that lie adjacent to homes and other man-made structures. “They didn’t only go onto his land without a warrant, they also took his camera that he had mounted onto his property so they could search the pictures and then used that to look for evidence,” IJ attorney Joe Gay told Field & Stream. “The government shouldn’t be able to use your own camera to spy on you.”
Open Fields
If the reported incident indeed took place in the manner that Highlander and the IJ claim, then VDWR agents likely used a 99-year-old legal precedent to justify their surveillance methods. That precedent, known as the “Open Fields Doctrine”, dates back to a 1924 Supreme Court Case that determined that the protections against unlawful search and seizure outlined in the 4th Amendment to the U.S. Constitution don’t apply to privately-owned “open fields”—like the one on Josh Highlander’s property where his trail camera was situated.
Related: Are Game Wardens Watching You?
The Open Fields Doctrine has been a flashpoint in other court cases that the IJ is involved in in different parts of the country. The non-profit sued the Pennsylvania Game Commission back in 2021 on behalf of two Pennsylvania hunting clubs whose members accused game wardens of trespassing and spying on them. Last August, F&S published an in-depth report on a case out of western Tennessee, which also involved the use of trail cameras by state game wardens.
“One goal of this lawsuit is to have the Virginia courts and the Virginia Supreme Court recognize that the Open Fields Doctrine shouldn’t apply under the Virginia Constitution,” Gay said. “On top of that, even courts that do apply the Open Fields Doctrine only apply it to searches of open fields. It doesn’t let you seize personal property that you find on open fields, without a warrant.”
If Highlander and his team of attorneys prevail, it could have major implications for the way Virginia’s game wardens carry out investigations on private land going forward. F&S will continue to follow the lawsuit as it develops.
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