You Own Property. Do You Want the Government Watching You on Your Land?
RLI’s Court Win Against the “Open Fields” Doctrine
Article by Gary Hubbell, ALC
Accredited Land Consultant
Broker/Owner, United Country Colorado Brokers
Are You Tired of Being on Camera? What About on Your Own Land?
If you’re like me, you’re tired of being on camera. You’re being videoed everywhere you go. At the bank, the grocery store, gas station, Ring cameras, and now these Flock cameras record your vehicle coming and going on a routine basis. People are upset about it and the Flock cameras have sparked more than a few acts of civil disobedience. Heck, I have to caution buyers as we tour homes for sale. “Shhhhh!” I tell them. “There’s a good chance you’re on camera. Don’t say anything you don’t want them to hear!” It has become too much. Privacy has eroded significantly in the past few years.
Do You Have a Right to Privacy on Your Open Fields?
That being said, you may feel like you have the right to come and go as you please on your own property without anybody watching you. That’s the point of owning land, right? Shoot your gun and pee off the porch. But the truth is, you don’t have the right to hunt, fish, shoot, farm, burn weeds, run your ATV’s, chase steers, or just walk on your property without the government watching you without a warrant.
You may think you know your way around property rights and land use issues, but few people have ever heard of the “Open Fields Doctrine,” which basically denied landowners the right to privacy on their fields and in their woods. WHAT? You read that right—a Supreme Court decision stated that yes, you do have your Fourth Amendment right to privacy in your home, but you do not enjoy a right to privacy in your “open fields”. Under this doctrine, a government official could enter your lands, surveil you, or spy on you at any time on your lands and property without your permission or a warrant. “How could this be legal?” you might ask yourself.
The legal basis for the “Open Fields” doctrine begins with Prohibition in 1920
You may recall from your 9th-grade history class that Prohibition was enacted by the passage of the 18th Amendment in 1920. Federal agents did their very best to stamp out illicit alcohol production. It was the “moonshiners versus the revenuers”, which started a huge cat-and-mouse game of federal agents sniffing out illegal stills and chasing down runners who transported illegal alcohol. In 1924, a case reached the Supreme Court—“Hester v. United States”. Federal agents entered Charlie Hester’s property without a warrant and observed him handing a jug—later determined to contain whiskey—to someone and they pursued him. Hester maintained that they didn’t have a warrant and had no right to enter his property. The case made its way all the way to the Supreme Court, and in a brief, unanimous decision, the Court, headed by Oliver Wendell Holmes, held that “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.”
100 years of private property owners being subjected to warrantless searches
The Open Fields decision was based upon a concept called “curtilage”— i.e, the house and its immediate surroundings were protected by the Fourth Amendment against unreasonable search and seizure. The “open fields” past the house and yard were fair game, literally, and could be surveilled and searched any time by any government agency without a warrant. Got a little patch of pot down by the creek? Uh oh, here come the modern-day revenuers. Did you shoot a buck without a license? Sorry, bud, sucks to be you, we were watching, and we got you on camera. Was that you and your sweetie skinny-dipping in the swimming hole on your property? We were hoping to find an endangered yellow-billed cuckoo so we could wrap up your property forever from development, but we saw you instead! Thanks for the show!
A Landmark Tennessee Land Use Decision Changes Land Use Law
Fast forward to the suit filed by Terry Rainwaters and Hunter Hollingsworth against warrantless entries and surveillance by the Tennessee Wildlife Resources Agency (TWRA) and the US Fish & Wildlife Agency. The landowners had each bought a country acreage for recreation, hunting, and rental income. One evening one of the guys looked up and spotted a camera placed in a tree. “Did you put that there?” he asked his buddy. “What are you talking about?” answered his friend. The first guy pointed to a camera affixed to a tree branch. “I don’t know where that came from,” said the friend. The first guy grabbed a ladder, went up to the tree branch, and cut the camera away. He threw it in the back seat of his truck and went home. Soon after, multiple armed officers in bulletproof vests, described as “like they were a SWAT team” descended upon Hollingsworth’s residence, handcuffed him, and searched the house thoroughly. They charged him with baiting wildlife and stealing the property of the State of Tennessee—i.e., the game cam in the tree.
The Newest Interpretation of the Open Fields Doctrine
Because there were no laws against the State of Tennessee or the US Fish & Wildlife agency intruding upon the Rainwaters/Hollingsworth properties, game wardens were emboldened to trespass to search for violations. The properties were posted and had locked gates, yet game wardens repeatedly trespassed, posted cameras, and even cut tree branches to get a better view. They pointed the cameras at dwellings and monitored vehicles, activities, and even dwellings and tenant housing. Their cameras resulted in a couple of baiting violations against Hollingsworth, but the warrantless governmental private property trespasses against them were much more egregious. And once they were exposed, the authorities went in against Hollingsworth with much more force than was necessary, showing that the state was willing to forcefully demonstrate its authority. The heavy-handed government intrusion without a warrant into the Rainwaters/Hollingsworth properties and the subsequent surveillance of the parties felt very unfair. The landowners sued the State of Tennessee, and the suit was joined by the Institute for Justice. News of this unfair intrusion into private property rights reached the Realtors Land Institute (RLI), whose members voted to file an amicus brief with the court to support the Rainwaters case.
How the Courts Ruled in Rainwaters vs. Tennessee Wildlife Resources Agency
In 2020, the Institute for Justice sued TWRA for warrantless entries and surveillance on private lands under the state constitution. In 2022, a three-judge panel issued a summary judgment on behalf of the plaintiffs, which the state appealed. At this point, the Realtors Land Institute, along with the National Association of Realtors and the Tennessee Association of Realtors, joined the suit with amicus briefs supporting the plaintiffs. The appeals court ruled that state officials could not rely on the federal Open Fields Doctrine to support their lawless activities. The State of Tennessee decided not to bring the case to the Tennessee Supreme Court, which made the ruling final. State authorities cannot use the federal Open Fields Doctrine as a basis for trespassing and surveilling without a warrant. This establishes powerful case law against any other states that may seek to abuse their landowners by trespassing and surveilling without a warrant, and this is considered a major victory for property rights.
BUT—The Federal “Open Fields Doctrine” Still Stands Today
However, while state officials in most states cannot claim rights to trespass or surveil under the 1924 “Open Fields” Supreme Court decision, the Open Fields Doctrine is still in effect. As a landowner, you are not protected from warrantless intrusion or surveillance onto your property by federal agents. At this point, groups such as the Institute for Justice and the Realtors Land Institute are carefully monitoring similar cases, waiting for the right opportunity to assist a landowner in filing a federal case that may very well go all the way to the Supreme Court to finally overturn this onerous decision. Our history is replete with examples of poor Supreme Court decisions—Dred Scott, the 3/5 Compromise, Roe v. Wade, Plessy v. Ferguson, and several more. The Open Fields Doctrine will likely rest on the ash heap of history. In the meanwhile, federal agencies are being more careful not to overstep their boundaries and trigger a successful challenge to Open Fields. I’ll be the first to tell you, that challenge may involve the use of drones. Drone surveillance can easily be done by a pilot starting a drone flight from several miles away and can be very, very exact. There are complexities involving FAA flying regulations, “air rights” above a property, how close a drone can fly to the ground (very, very close, as in a few inches) and personal privacy rights, and I can foresee this playing out in the near future. As a landowner, ask yourself if you want drones flying over your property, poking into your personal business, following your tractors, your cattle, and your hunters. I think we can all say the answer is “No!” Of all the farms, ranches, vacant land, hunting properties, vineyards, wineries, and orchards that we’ve sold, we’ve had many clients tell us they’re seeking solitude, peace and quiet, seclusion, and privacy. Not one client has said that they’d like more government intrusion on their new property.
The Role Played by the Realtors Land Institute and Realtor Groups
I (Gary Hubbell, ALC) sit on the Government Affairs Committee of the Realtors Land Institute. Though this action was taken prior to my service on the committee, I can assure you that we take land use issues very seriously. The Realtors Land Institute (RLI) is a subset of one of the most powerful advocacy groups in the country, the National Association of Realtors, with over 1.4 million members. When serious land issues arise, NAR leadership knows to defer to the “guys and gals in the cowboy hats”—RLI—for consultation and guidance. Our Government Affairs Committee is comprised of members from all over the country, including Virginia, Ohio, Nevada, California, Colorado, Georgia, you name it. Almost all the members carry the highly respected Accredited Land Consultant (ALC) designation. We recently voted to file another amicus brief supporting two brothers in California who are suing Marin County for abuses against their property rights. The Supreme Court recently decided not to take up the case, but we are told it was more a matter of bandwidth on the court’s caseload rather than a negative view of the merits of the case. Stand by for more developments.
The Bottom Line: I Am Fighting for Your Property Rights Although You May Not Even Know It
The bottom line is this: advocacy matters. Taking part matters. I joined RLI’s Government Affairs Committee because it’s one of the most effective ways to directly affect policy. It’s pretty darned powerful to sit in a room with 25 notable and experienced professionals to discuss national land use issues and how those issues will be decided and how the solutions will be implemented, often based on our committee’s recommendations. Our lobbyist, Russell Riggs, is well known on Capitol Hill and gives us the “inside baseball” report on how these issues are proceeding. We can also report issues from our own area to bring attention to critical concerns. For example, Matt Davis, a Cushman & Wakefield broker from San Diego, California, and I often give updates on Western water issues, particularly those involving the Colorado River Compact and how water issues are affecting our regional economies, including farmers, ranchers, developers, and recreational users. Matt gives the Lower Basin perspective and I give the Upper Basin perspective, and trust me, these concerns are noted and presented to lawmakers. In this year of extreme drought all across the West, it’s a hugely important topic. We aren’t going to give up our Colorado water without a fight.
Paul Bottari, a Nevada ranch broker, and I brought up the issue of “corner crossing”, whereby hunters navigate from one BLM property to another by hopping over a landowner’s two corners to access a different parcel of public lands. Is it legal? Ummmmm…good question. Should hunters have a right to access these public lands parcels? I think so. But theoretically, can they actually cross over touching corners without trespassing on a rancher’s property? The argument can be made that no, they can’t. We think there’s a solution somehow, but it will take some negotiations.
Some of the issues will surprise you. The European Union has instituted a policy whereby they won’t accept trade items from countries with ongoing timber harvesting unless forests are “sustainably managed.” If you want to cut loblolly pines on your property in Arkansas to put the land into pasture to raise beef, the beef you raise will likely not be headed to the European marketplace, and neither will the timber.
Do You Want a Voice in Washington, D.C.? I Can Help You Be Heard
As a group, RLI is taken very seriously by politicians and policy wonks. We are a powerful group representing huge investments and serious people. We still have an incredible investment tool in the form of 1031 exchanges largely because of NAR and RLI advocacy, a tax credit that some politicians would instantly destroy if they had their way. We have beaten back extremely confiscatory “death taxes”, otherwise known as inheritance tax, so that farmers and ranchers can pass on their legacy to their heirs without having to sell out to pay taxes. We are seeking to preserve traditional land uses and provide a legacy to hard-working people who own land. When outrageous and confiscatory scenarios emerge to take your lands and tax you to death, you can rest assured that we are watching and defending you and your property rights, even though you may not even know it. If you have questions about land use and property rights, or an issue that may need attention, reach out to me. You have a friend in a powerful organization. I’m not an attorney and I can’t promise you anything. I’m just a guy in a cowboy hat in Hotchkiss, Colorado. However, I’m part of a powerful group and we are not afraid of a fight. Use that relationship. I’ll bring it up to the committee. I’m happy to help.
Gary Hubbell, ALC, takes your private property rights seriously. He has been widely published as an opinion columnist and freelance writer. As the founding broker of United Country Colorado Brokers & Auctioneers, he advocates for landowners across the West. Gary’s office is in Hotchkiss, Colorado, but he’s also licensed in Utah. He and his wife, Doris, raise hay and Labrador retrievers on their ranch in Crawford, Colorado.