Righttoretrievecover

Be sure to read this recently-published piece in the William and Mary Bill of Rights Journal, Mason Miller, “Hunting for Meaningful Boundaries: Virginia’s Dog Retrieval Statute and Defining Per Se Regulatory Takings Under Cedar Point,” 33 Wm. & Mary Bill of Rights J. 1271 (2025). 

The article focuses on Virginia’s so-called “right to retrieve” law, Va. Code § 18.2-136 (“Fox hunters and coon hunters, when the chase begins on other lands, may follow their dogs on prohibited lands, and hunters of all other game, when the chase begins on other lands, may go upon prohibited lands to retrieve their dogs, falcons, hawks, or owls but may not carry firearms or bows and arrows on their persons or hunt any game while thereon.“).

Disclosure: our firm represented property owners in an earlier case challenging this statute, which is discussed in the piece. 

Here’s the Introduction to give you a sense of the article, the author’s analysis, and his conclusion:

When expanding per se physical takings in Cedar Point Nursery v. Hassid, Chief Justice Roberts assured the dissenting Justices that the new standard would be limited by three exceptions. Justice Breyer, after discussing this new approach adopted by the majority, asked in his dissent, “How well will this new system work?” An analysis of Virginia’s statutory allowance for hunters to retrieve their hunting dogs from private property may help answer this question. While Virginia’s retrieval law is a close call under two of the three Cedar Point exceptions, the difficulty in analysis demonstrates that the framework established by the Court is not as clear as the majority suggested, and the exceptions may not provide the meaningful boundaries that were promised to contain the bloated standard.

This Note will begin with a summary of the Cedar Point decision. Next, it will provide an overview of Virginia’s dog retrieval statute and discuss a recent case challenging the same. The Note will then analyze the statute by applying the Cedar Point standard, with special attention given to the exceptions, to determine if the law constitutes a per se taking. Finally, the Note will conclude by exploring some implications of the analysis, again emphasizing the effect of the amorphous exceptions.

33 Wm. & Mary Bill of Rights J. at 1271-1272 (footnotes omitted). 

Bottom line for the author? “Virginia’s dog retrieval law presents a strong challenge to applying the revised per se physical takings rule as established in Cedar Point Nursery v. Hassid. The controversial law gives hunters a right of entry onto prohibited lands in order to retrieve their wandering hounds. This grant of access appropriates a landowner’s right to exclude unwanted hunters, who otherwise would be kept out if not for the government’s grant of access.” Id. at 1278-1279.

Check it out. Well-worth reading.