How much private land can the federal government access without probable cause, search warrant, or consent? Almost all of it, as in 1.2 billion acres, or at least 96% of all private holdings in the United States.
The staggering numbers, tabulated in research by Institute for Justice (IJ), highlight the scope of the Open Fields doctrine—the power of federal officials to enter and surveil private land with no limitations on frequency or duration.
Additionally, the report, Good Fences, Good Luck, puts a spotlight on an alarming acreage correlation for property owners: the more rural the land, the more accessible to government’s reach.
“We thought it was important to measure just how much private land is subject to these unfettered government intrusions—about 1.2 billion acres—both because it’s easier to understand a problem when you can put a number on it, and because there are countless real people behind that number whose property, privacy, and most basic constitutional rights are at stake,” says IJ attorney Joshua Windham.
“About 96% of all private land in the country—whether posted, fenced, occupied, or farmed—is currently open to warrantless, suspicionless invasion by federal officials. That’s a scary thought—and knowing how big the problem is a crucial first step to restoring all Americans’ right to be secure on their land.”
“Totals Are Astonishing”
Via two Supreme Court rulings, federal officials including wildlife agents, environmental inspectors, immigration officials, and any other agency representatives possess unrestricted access to private land in all 50 states. Bottom line, per the Supreme Court’s Open Fields doctrine: Fourth Amendment protections against “unreasonable searches” do not extend to the overwhelming majority of private land.
In 1924 (Hester v. U.S.), in a Prohibition-era case involving bootleg liquor, SCOTUS established the Open Fields doctrine when it declared: “...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.” SCOTUS reaffirmed that rule in a 1984 case, Oliver v. U.S., and added that “an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.”
Open Fields removed all constitutional limits regarding federal searches of private land. No reasonable suspicion, no probable cause, no warrant required. Specifically, according to SCOTUS, the Fourth Amendment pertains to homes and curtilage: surrounding lawns and immediate structures or sheds. However, beyond the protected curtilage, government has unlimited power to enter and roam around so-called “open fields.”
The Institute for Justice recently tackled a hanging question: Specifically, how much land is considered unprotected “open fields”? The answers, set forth in Good Fences, Good Luck, were compiled with data from three public sources: USGS National Land Cover Database, USGS Protected Areas Database, and Microsoft’s database of buildings. (All data was analyzed with a mapping program, ArcGIS Pro.)
“It wasn’t terribly complicated,” Windham describes. “We needed a couple of ingredients. One, how the Open Fields doctrine functioned legally. Two, public data sets that we could use to measure how that legal doctrine mapped onto the real world. Our topline finding was that at least 96% of all private lands in the country qualify as ‘open fields’ and are therefore entirely unprotected from abusive searches by federal officials.”
The 96% access figure cited by IJ is a low-ball number. The percentage of private land exposed to warrantless intrusion likely is even higher, Windham explains.
“Under the federal Open Fields doctrine, all land outside the curtilage of a home is subject to warrantless intrusion. The public data sets we used gave us a footprint for every building in the country, but no way to distinguish between houses (which have protected curtilage) and other buildings (which generally do not). Therefore, we assumed, for sake of the study, that every building on private land in the country had a 100’ curtilage buffer around it, which is pretty generous. The vast majority of those buildings are not homes, but we adopted a uniform assumption to avoid undercounting the amount of protected curtilage,” Windham continues. “But even with those generous assumptions, we still found that at least 96% and at least 1.2 billion acres are unprotected ‘open fields.’ Those numbers are astonishing.”
“If I was taking a guess just based on my knowledge of the law, I’d say the more accurate percentage is 98-99%, but we can’t quantify that and be certain.”
Battles In Four States
Furthest ain’t so far, after all.
When it comes to private land ownership, greater physical distance from government and increased privacy are not necessarily a wedded pair.
Why? Rural land, whether for agriculture or recreation, has less protection than urban property due to the curtilage cutoff. “The Open Fields doctrine turns the way normal Americans think about property and privacy on its head,” contends Windham, who is at the blade’s edge of Open Fields litigation across the U.S. “The Open Fields doctrine says the more land you own, the less privacy you get. Rural Americans might think they have more of a buffer from strangers intruding on their private affairs because they have more property surrounding them—but in fact it’s the opposite: They own a larger area for the government to invade.”
And which federal government officials have total access to private land? All, according to the Open Fields doctrine: USDA, DOJ, FBI, Interior, Treasury, FWS, EPA, Bureau of Land Management, Corps of Engineers, and many more. In both Hester (1924) and Oliver (1984), revenue officers and policemen were involved, not wildlife officers. Whether law enforcement, environmental inspectors, immigration officials, USDA reps, FWS reps, or any federal agency officers—they can all enter private land without any limits according to the highest court in the land.
“Because some of the most common intrusions—and the most high-profile lawsuits today—involve game wardens, some people assume that only game wardens can use the Open Fields doctrine,” Windham notes. “In reality, though, it’s a global doctrine that empowers all federal officials to invade your land at will.”
Another misunderstanding often held by the public? That Open Fields only applies in certain states. “Unfortunately, the federal supremacy clause means that federal officials in every state can rely on the Open Fields doctrine even if state constitutional protections might otherwise provide more protection for private land,” Windham explains.
At the state level, almost all 50 legislatures allow Open Fields access by state officials. Therefore, landowners in most states are subject to Open Fields intrusions by both federal and state representatives. However, courts in seven states have held that their state constitutions forbid state officials from invading private land without a warrant: Mississippi, Montana, New York, Oregon, Tennessee, Vermont, and Washington. And in 2021, South Dakota passed laws that forbade state game wardens (but not other officials) from doing so. Again, though: Federal officials continue to have Open Fields power in all 50 states.
Since 2020, lawsuits challenging Open Fields at the state level have unfolded in Tennessee, Pennsylvania, Virginia, and Louisiana, led by IJ and Windham.
In Tennessee, Terry Rainwaters and Hunter Hollingsworth own properties that serve as residences (in Rainwaters’ case) and farmland, as well as hunting ground. In a two-month span between December 2017-January 2018, Rainwaters found two active trail cameras on his property, and Hollingsworth located one trail camera on his private land. Without consent or warrant, the devices were installed by the Tennessee Wildlife Resources Agency. After a suit brought by Rainwaters and Hollingsworth, the Tennessee Court of Appeals ruled that state game wardens cannot roam on private property without a warrant based on probable cause. In June, TWRA decided not to appeal to the Tennessee Supreme Court—cementing Rainwaters’ and Hollingsworth’s victory in stone.
In northcentral Pennsylvania, two hunting camps, Pitch Pine and Punxsutawney, sued the Pennsylvania Game Commission for warrantless entries (dating back to 2013) by game wardens on both properties. The litigation currently sits with the Supreme Court of Pennsylvania.
In Virginia, Josh Highlander sued the Department of Wildlife Resources after three game wardens entered his private land, proceeded to a food plot, and seized his game camera, all without warrant or consent in 2023. Highlander’s case is pending before the Virginia Court of Appeals.
In Louisiana, landowner and forester Tom Manuel sued the Department of Wildlife and Fisheries after game wardens made repeated warrantless entries on his land in December 2023. The case is currently in the discovery phase with depositions expected later in 2024.
Unblinking Eye
The Open Fields doctrine’s impact is rapidly growing wider due to newer, cheaper, and more intrusive surveillance technology. Whether by advances in drones, cameras, satellite, thermal, or a host of pipeline tech, the power of government to surveil private land is set for exponential expanse. Why does that matter? “It matters because your private land is your sanctuary,” Windham says. “It matters because private means private—whether we’re talking about privacy from a nosy neighbor, government foot patrols, or the unblinking eye of a government camera.”
“A Terrifying Proposition”
Despite the tremendous amount of private acreage open to unchecked government access, the deeper significance of the Open Fields doctrine cannot be captured in a number or percent, Windham concludes.
“These statistics—96% and 1.2 billion acres—matter because they’re about real Americans. Behind those staggering figures are the faces and properties and private lives of normal, everyday people like Hunter Hollingsworth, Terry Rainwaters, Josh Highlander, Tom Manuel, and the dozens of members of the Punxsutawney and Pitch Pine Hunting Clubs.”
“Do I think there’s a hidden government camera on every tree or surveillance on every farm? No—but the problem is that, under the Open Fields doctrine, there could be,” Windham adds. “That’s a terrifying proposition.”
For more from Chris Bennett (@ChrisBennettMS or cbennett@farmjournal.com or 662-592-1106), see:
Corn and Cocaine: Roger Reaves and the Most Incredible Farm Story Never Told
Cottonmouth Farmer: The Insane Tale of a Buck-Wild Scheme to Corner the Snake Venom Market
Bagging the Tomato King: The Insane Hunt for Agriculture’s Wildest Con Man
Ghost in the House: A Forgotten American Farming Tragedy
Priceless Pistol Found After Decades Lost in Farmhouse Attic
Tractorcade: How an Epic Convoy and Legendary Farmer Army Shook Washington, D.C.
Bizarre Mystery of Mummified Coon Dog Solved After 40 Years
American Gothic: Farm Couple Nailed In Massive $9M Crop Insurance Fraud
Judas Goats: Agriculture’s Bizarre, Drug-Addicted Masters of Deceit Once Ruled the Killing Floor
Evil Grain: The Wild Tale of History’s Biggest Crop Insurance Scam
Fleecing the Farm: How a Fake Crop Fueled a Bizarre $25 Million Ag Scam
The Arrowhead Whisperer: Stunning Indian Artifact Collection Found on Farmland
Skeleton In the Walls: Mysterious Arkansas Farmhouse Hides Civil War History
