Hunting Club Lawsuit Challenges Power of Government Surveillance on Private Land

“We have reached a time in this country when our government openly believes it can spy on us with no warrant or cause,” Jon Mikesell insists. “Don’t look away from what is happening in our homeland.”
“We have reached a time in this country when our government openly believes it can spy on us with no warrant or cause,” Jon Mikesell insists. “Don’t look away from what is happening in our homeland.”
(Photo courtesy of Pitch Pine Hunting Club)

Purple paint and posted signs do not necessarily protect private property in the United States, whether hunting ground, farmland, or recreational acreage. “The government can hide on your land, pop out behind a tree at will, record you, and watch your family 24-7,” says Jon Mikesell, “and do it all with no warrant or probable cause.”

Increasingly, concern over the reach of government’s hand onto private land is capturing public attention, encapsulated in a lawsuit heating up over allegations made by two hunting clubs related to consistent surveillance by game warden personnel.

The case carries heavyweight implications: Does state law provide government officials with absolute access to private land, without probable cause or a warrant? The question tears the scab away from an overriding, century-old “Open Fields” private land doctrine and the U.S. Supreme Court’s repeated big amen to the power of Uncle Sam.

In the present digital age, where the eye of the state is magnified by still-shot game cameras, streamed video footage, drone presence, GPS location, SIM alerts, and a perpetually growing cascade of additional data, the boundaries around private land have grown increasingly blurred.

“We have reached a time in this country when our government openly believes it can spy on us with no warrant or cause,” Mikesell insists. “Don’t look away from what is happening in our homeland.”

Hide and Find?

In 2013, early in the month of July, at the Pitch Pine Hunting Club in central Pennsylvania, Mikesell and several other club members, along with spouses, children, and guests, gathered around the front porch of the camp, intent on celebrating Independence with a meal and fellowship.

Approaching the camp at fast speed via a long dirt road, a pickup truck marked with Pennsylvania Game Commission decals pulled up abruptly to the dwelling, with enough skid to toss driveway gravel, according to Mikesell. Out of the truck jumped wildlife officer Mark Gritzer, demanding to speak with the appropriate Pitch Pine member.

 

Posted Open Fields
“We’re literally dealing with game wardens hiding on our land to catch guys committing some kind of infraction,” Jon Mikesell says. “I wonder if they’re using game cameras on our own private land to watch and monitor us; I have deep suspicions.” (Photo courtesy of Institute for Justice)

 

“He was angry and hollered at least twice, ‘Who’s in charge here?’ Mikesell recalls.

Mikesell, a longtime club member since childhood, took the reins and listened as Gritzer delivered accusations of bear baiting. To the front-left of the camp, atop a shooting bench, Mikesell had put out a bag of bird seed. “Feeding bears? With birdseed?  After 30 minutes of back-and-forth about the birdseed and that he is on private property, and I have a right to feed the birds, I told Gritzer to write his citation and I’d see him in court,” Mikesell says. “He didn’t write me a citation or give me a written warning over the incident.”

Gritzer, alleges Mikesell, pointed to an area above the parking lot on the camp property, and claimed to have observed Pitch Pine members for several weeks with binoculars from a hidden location, his concealment aided by camouflage clothing.

“It’s unbelievable,” Mikesell says. “A game warden has time to sneak around on private land with binoculars and-or cameras to catch us supposedly baiting bears smack in the middle of our camp with birdseed. Hide and find a crime—that is the game plan. This type of encounter has occurred over and over for the past decade, is still going on, and I know it’s happening to other local private landowners.”

(When asked by Farm Journal about private property regulations and Pitch Pine-Punxsutawney litigation, the Pennsylvania Game Commission declined general private property questions and deferred litigation questions to the Pennsylvania Office of Attorney General. In turn, when asked by Farm Journal about Pitch Pine-Punxsutawney litigation, the Pennsylvania AG office deferred comment back to the Pennsylvania Game Commission.)

Power v. Privacy

Founded in 1919, Pitch Pine (1,100 acres) and Punxsutawney (4,000 acres) are neighboring hunting clubs tucked in the steep, wooded hills of Clearfield County, Pennsylvania, rubbing against the Moshannon State Forest sprawled across the Allegheny Plateau. The terrain is remarkably beautiful and characterized by rolling hills with precipitous points of elevation that jump 7,000’ in a heartbeat.

 

All roads in and out
“Are wildlife officers allowed to enter your private property at will and just wander around without a warrant, trying to catch you doing something wrong? Is that what our founders intended?” asks IJ attorney Josh Windham. (Photo courtesy of Institute for Justice)

 

All roads in and out of both hunting camps are gated and the entire perimeter is posted. The membership of the clubs (Pitch Pine—50; Punxsutawney—81) is a blue- and white-collar cross-section. Roughly a quarter of Pitch Pine members, for example, are military veterans. “We’re not outlaws or lawbreakers,” says Mikesell, 63, at the tail-end of a career spent as a high school guidance counselor.

“We have a retired police chief, assistant district attorney, district magistrate, two attorneys, two school principals, several public school teachers, a retired doctor, and a large number of small business owners in our membership. We’re a bunch of regular people and we have had enough of the state abuse of power. This is not about politics; this is about fundamental freedoms in this country that every citizen, right or left, should care about.”

Represented by the Institute for Justice (IJ), a national libertarian law firm and legal advocacy group, Pitch Pine and Punxsutawney are suing the Pennsylvania Game Commission, claiming game wardens possess “virtually unchecked power to enter private land to search for evidence of potential state hunting offenses.” The Pitch Pine and Punxsutawney complaint, filed Dec. 16, 2021, contends Pennsylvania game wardens, sans warrant or probable cause, often “roam for hours” and “spy on” private land in search of hunting violations. The wardens’ behavior, the lawsuit states, is a direct violation of Pennsylvania’s state constitution, which in Article 1, Section 8, explicitly protects “persons, houses, papers, and possessions.” (16 states have constitutions protecting “persons, houses, papers, and possessions” instead of the 4th Amendment’s “persons, houses, papers, and effects.”)

“I’m an old-school veteran, as was my father and grandfather, and we all followed the law. I’ve got friends as police officers and my son is studying criminology right now in college,” Mikesell says. “How in the world did America get to the place where local police officers or state police or FBI agents have to get warrants and probable cause, yet a game warden can have free reign on private land?”

“We’re literally dealing with game wardens hiding on our land to catch guys committing some kind of infraction,” Mikesell exclaims. “I wonder if they’re using game cameras on our own private land to watch and monitor us; I have deep suspicions.”

By Pennsylvania statute, wildlife officers “have the right and authority to go upon or enter any property, posted or otherwise,” and are fully authorized to perform “inspections of persons, licenses and permits.” Any private landowner that declines property entry to a game warden potentially faces a $1,500 fine and three-month jail sentence.

Yet, if the present interpretation of Pennsylvania law authorizes the state to perform warrantless searches and provides open-ended access to private land, what restraints remain? Following the thread, if private land has no protection from government, what prevents state officials from extended stays of days, weeks, or months? What prevents state officials from setting up year-round, live video feeds? Game cameras? Email or text alerts on the entry-exit movements of private landowners? Drone footage? Automated vehicle monitoring of landowners?

 

Jon Mikesell
“Everyone knows this is happening all over America and we as citizens have had enough,” says Jon Mikesell. “Don’t tell me this is what our forefathers intended when they set up our laws—they are turning over in their graves.”

 

“Nothing stops them from doing whatever they choose on private land,” Mikesell says. “If you really follow how the law has been twisted, what prevents a game warden from ever even having to leave your land? They can stay for an hour, a day, a year—with no authority other than themselves? They are supposed to derive their power from us, but no sane landowner would ever give the state this much power.”

“Mark it down: Once you get spied on by a government official creeping around in camo with no restrictions, hoping to catch you committing a shred of a crime, on the very land where your daughters and wives and family think they have privacy, it’ll shake you to your core. Last time I checked, this was still America, and I think at least some people are waking up. Look what is happening in Tennessee.”

Pandora’s Box

In northwest Tennessee’s Benton and Henry counties, Terry Rainwaters (136 acres) and Hunter Hollingsworth (95 acres), both own properties that serve as living quarters and farmland (in Rainwaters’ case), as well as hunting ground. In a two-month span between December 2017-January 2018, Rainwaters found two active U.S. Fish and Wildlife (USFW) trail cameras on his property, and Hollingsworth located one USFW trail camera on his private land. Although all three cameras were owned by USFW, the devices were installed by the Tennessee Wildlife Resources Agency (TWRA).

 

Terry Rainwaters Open Fields
In a two-month span between December 2017-January 2018, Terry Rainwaters found two active U.S. Fish and Wildlife (USFW) trail cameras on his property. He claims the cameras were placed without warrant or consent. (Photo courtesy of Institute for Justice)

 

The capacity of trail camera surveillance tears open a Pandora’s box of relevant questions. How many government trail cameras are active on private land in Tennessee, unknown to the associated landowners? Beyond the officer who physically places the camera, who else is in the know? Do wildlife agencies have a list of past camera locations and current, active cameras? Within a wildlife agency, who is allowed to view the footage? Who owns the footage? How long are the cameras allowed to operate in place? Do wildlife agencies recommend prosecution for a landowner for breaking or removing a camera? Is the government recording private/personal moments? From legal and ethical angles, the questions are myriad.

Rainwaters (54) and Hollingsworth (31) claim the cameras were placed without consent or warrant. The pair of landowners, represented by the Institute for Justice, sued TWRA in 2020, contending the Tennessee Constitution (Article 1, Section 7) protects private land from warrantless searches. (When asked in 2020 by Farm Journal about the Rainwaters-Hollingsworth case, TWRA declined comment: “The Agency cannot comment on matters in litigation, nor can we provide comment on issues that are currently being litigated.” TWRA directed all Farm Journal questions to the Tennessee Attorney General’s office. The Tennessee AG office also declined comment.)

“Whether a landowner is in Tennessee, or here in Pennsylvania, or in any other state, people need to realize that government officials do not view private land as private. They view it as private only to others, but not to themselves as part of government,” Mikesell says. (Relatively recent cases of courts embracing the Open Fields doctrine include Virginia’s United States v. Vankestern in 2010; Ohio v. Brannon in 2015; and Tennessee’s Spann v. Carter in 2016.)

The Pitch Pine and Punxsutawney complaint against the Pennsylvania Game Commission lists numerous firsthand examples (2013-2021) of encounters with game wardens on private club land. Institute for Justice attorney Joshua Windham believes the crux of the case is found in Article 1, Section 8 of the Constitution of Pennsylvania: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

“This protection from warrantless searches absolutely includes land,” Windham says. “Land is not a person, house, or paper, but it is a possession. Courts have recognized that citizens can possess land since the founding of this country. There is no serious historical debate over the meaning of ‘possessions.’”

 

Hunter Hollingsworth Open Fields
In 2017, Hunter Hollingsworth found a USFW trail camera on his private acreage, installed by the Tennessee Wildlife Resources Agency. How many warrantless government trail cameras are active nationwide? (Photo courtesy of Institute for Justice)

 

However, in a 2007 decision, Pennsylvania v. Russo, the Pennsylvania Supreme Court determined “possessions” does not include private land. Windham believes the Russo decision was off the mark.

“In our view, the court’s analysis of the word ‘possessions’—historically, linguistically, and as a policy matter—was woefully incorrect. It omitted key details about how our founders understood the word and how it has been used in court and in statutes.”

Windham’s position is straightforward: Article 1, Section 8 of the Constitution of Pennsylvania protects citizens against warrantless searches of property and possessions—including land. “In many ways it’s very simple,” Windham says. “Are wildlife officers allowed to enter your private property at will and just wander around without a warrant, trying to catch you doing something wrong? Is that what our founders intended? Article I, Section 8 shows that it’s not.”

“We’re not saying the Pennsylvania Game Commission is doing something they don’t have statutory authority to do. We’re saying the authority they have been granted is itself unconstitutional.”

Regardless of outcome in the Punxsutawney-Pitch Pine case in Pennsylvania or the Rainwaters-Hollingsworth case in Tennessee, the issue of dual sovereignty remains: federal officers are not restricted by state constitutions. All roads lead to the Supreme Court of the United States (SCOTUS), because even if the Pennsylvania and Tennessee state courts agree with private landowners and insist state officers abide by state constitutions, federal officers can still enter private land without warrants.

According to the black robes of SCOTUS, any federal officer, i.e., a U.S. Fish & Wildlife representative, can enter private land at will without cause. Welcome to the Gordian knot of the Open Fields doctrine.

Domino Effect

Most Americans assume federal law enforcement must obtain a warrant to carry out surveillance on private land, but for roughly a century, SCOTUS has ruled that no barrier prevents entry by the feds.

The Fourth Amendment’s protections against “unreasonable searches and seizures” expressed in the Bill of Rights strictly apply to an individual’s immediate dwelling and curtilage, and not surrounding land—per SCOTUS. Curtilage is an arcane term loosely translated as the area directly around a home, or generalized, the yard.

 

Posted Open Fields
“This is not about politics; this is about fundamental freedoms in this country that every citizen, right or left, should care about,” says Mikesell. (Photo courtesy of Institute for Justice)

 

In 1924, Hester v. United States (bootleg alcohol) set up the Open Fields framework when SCOTUS declared the U.S. Constitution does not extend to most private land: “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields.” Significantly, Open Fields is translated beyond its literal sense, and basically is defined as general acreage: woods, fields, farmland, and more.

In 1984, doubling down, SCOTUS gave additional strength to Open Fields in Oliver v. United States (marijuana grow): “open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.”

Ironically, the government justified access to the land of private citizens and crafted the Open Fields doctrine around contraband seizure of two substances—alcohol and marijuana—which have since gained increasing legal latitude. “Alcohol, and increasingly marijuana, are not contraband anymore,” Windham says, “but the government used both to justify a wrong and misguided doctrine.”

Windham’s firm, IJ, aims to set off a domino effect in state high courts and eventually move upward to SCOTUS. “This is going to be a long battle,” Windham says, “but look at all the cases from recent years that involve landowners and private property rights.”

In 2018, Vermont’s Supreme Court, in Vermont vs Dupuis involving game wardens and private property, ruled “possessions” applied to land. Likewise, Montana’s 1991 State v. Bullock rejected Open Fields and focused on warrantless searches and seizures on private land. Other states have rejected Open Fields outside the game warden context: Oregon’s 1988 State v. Dixson and New York’s 1992 People v. Scott.

Overall—Mississippi, Montana, New York, Oregon, Vermont, and Washington place state constitutional authority above the Open Fields doctrine.

(For information on agriculture property, curtilage, and warrantless searches, see Roger McEowen’s 2018 column.)

Private v. Public

The property rights issues of Open Fields boil down to a central question, Windham contends: “Is private land private, or can it be treated like public property?”

“Right now, the government is allowed to enter your land, hide, put up a tent and camp out, watch you secretly behind a tree or with binoculars, set up surveillance cameras, send in drones, and more, all without a warrant,” Windham concludes. “That’s not okay. The solution is to require a warrant based on probable cause to enter private land. That way there is a process that involves a neutral third party, as in a judge, to assess the situation.”

 

Open Fields and SCOTUS
“Once you get spied on by a government official creeping around in camo with no restrictions, hoping to catch you committing a shred of a crime, on the very land where your daughters and wives and family think they have privacy, it’ll shake you to your core,” says Mikesell. (Photo courtesy of Institute for Justice)

 

Mikesell hopes the Punxsutawney-Pitch Pine suit will spark additional legal challenges by other private property owners. “When you get down to the simple facts, our government can spy on citizens with no warrant or cause. Everyone knows this is happening all over America and we as citizens have had enough. Don’t tell me this is what our forefathers intended when they set up our laws—they are turning over in their graves.”

To read more stories from Chris Bennett (cbennett@farmjournal.com), see:

Tractorcade: How an Epic Convoy and Legendary Farmer Army Shook Washington, D.C.

Bagging the Tomato King: The Insane Hunt for Agriculture’s Wildest Con Man

How a Texas Farmer Killed Agriculture’s Debt Dragon

While America Slept, China Stole the Farm

Bizarre Mystery of Mummified Coon Dog Solved After 40 Years

The Arrowhead whisperer: Stunning Indian Artifact Collection Found on Farmland

Where's the Beef: Con Artist Turns Texas Cattle Industry Into $100M Playground

Fleecing the Farm: How a Fake Crop Fueled a Bizarre $25 Million Ag Scam

Skeleton In the Walls: Mysterious Arkansas Farmhouse Hides Civil War History

US Farming Loses the King of Combines

Ghost in the House: A Forgotten American Farming Tragedy

Rat Hunting with the Dogs of War, Farming's Greatest Show on Legs

Misfit Tractors a Money Saver for Arkansas Farmer

Government Cameras Hidden on Private Property? Welcome to Open Fields

Farmland Detective Finds Youngest Civil War Soldier’s Grave?

Descent Into Hell: Farmer Escapes Corn Tomb Death

Evil Grain: The Wild Tale of History’s Biggest Crop Insurance Scam

Grizzly Hell: USDA Worker Survives Epic Bear Attack

Farmer Refuses to Roll, Rips Lid Off IRS Behavior

Killing Hogzilla: Hunting a Monster Wild Pig  

Shattered Taboo: Death of a Farm and Resurrection of a Farmer     

Frozen Dinosaur: Farmer Finds Huge Alligator Snapping Turtle Under Ice

Breaking Bad: Chasing the Wildest Con Artist in Farming History

In the Blood: Hunting Deer Antlers with a Legendary Shed Whisperer

Corn Maverick: Cracking the Mystery of 60-Inch Rows

Against All Odds: Farmer Survives Epic Ordeal

Agriculture's Darkest Fraud Hidden Under Dirt and Lies

 

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