Two Clearfield County hunting clubs that claimed their privacy rights were violated when the state Game Commission installed a trail camera on their posted land without a warrant — thus photographing members without their knowledge — lost their appeal in Pennsylvania Commonwealth Court.

The court ruled that officers of the state Game Commission have the “unfettered right” to enter private properties owned by the Punxsutawney and Pitch Pine hunting clubs in Clearfield County, despite the posting of no trespassing signs and gates at all entrances to exclude nonmembers and intruders.

Seven judges of the state appeals court who issued the opinion found themselves embroiled in a constitutional potpourri that included arguments that game enforcement officers entering posted land without a warrant violated the Fourth Amendment of the U.S. Constitution and the Pennsylvania Constitution, Article 1 Section 8, which forbids warrantless searches of “possessions.”

The opinion, written by Judge Michael H. Wojcik, rested on a prior ruling by the Pennsylvania Supreme Court which concluded that the reasonable expectation of privacy encompassed by the Fourth Amendment and the Pennsylvania Constitution did not extend to “open fields.”

To support that argument, the Commonwealth Court noted that the Pennsylvania Constitution through the Environmental Rights Amendment has determined that the state has obligations as “trustee” of the state’s wildlife.

“In order to execute this authority, the Commission … is constitutionally responsible for managing and protecting wildlife in the state,” the Wojcik opinion states. “Commission employees need to enter private property where wildlife may be present and hunting may be occurring.”

In addition, the opinion stated “hunters have surrendered their reasonable expectation of privacy by choosing to participate in a highly regulated activity. … Thus the Commission argues that the hunting clubs do not present a case that might implicate privacy rights under (the state constitution).”

The opinion was issued last Friday.

The case before the court focused on a lawsuit brought by the clubs that own 5,000 acres of land in the county.

They have posted their lands with no trespassing signs and installed gates for privacy purposes, but the state contends, the law gives their officers the right to enter the properties without “consent, warrants or probable cause.”

The hunting clubs dispute that argument.

The Pennsylvania Supreme Court in 2007 ruled in favor of the Game Commission, but the present lawsuit contends the opinion was in error.

In explaining the Supreme Court precedent, the Commonwealth Court concluded that the Fourth Amendment and Section 8 protect the privacy of those “legitimately occupying a certain space” but not to “open fields.”

The Open Fields Doctrine, as applied in the precedential case, was consistent with the Environmental Rights Act, which is aimed at “protecting and conserving public natural resources, including wildlife within its fields and forests,” the opinion stated.

The Wojcik opinion went on to explain that the Supreme Court precedent that is being challenged represents “binding precedent” for the Commonwealth Court, and it concluded, “We have no authority to refuse to apply Supreme Court precedent, much less overturn it.”

The opinion also stated the Commonwealth Court will not issue an “advisory opinion” on the subject.

The ruling by the Commonwealth Court now opens the door for the two hunting clubs to present their challenge to the Supreme Court for clarification.

The hunting clubs are represented by Harrisburg attorney John DeSantis and three attorneys from the Institute for Justice of Arlington, Va.

Stephen R. Kovatis of the Attorney General’s staff is representing the Game Commission.