A group of falconers wants to revive a lawsuit to challenge licensing regulations that allegedly subject them to unconstitutional warrantless searches.

The American Falconry Conservancy nonprofit and four individual falconers have asked a federal appeals court to reinstate their complaint, which was dismissed last year for a lack of standing.

A federal judge threw out the case after finding the falconers didn’t face a sufficiently imminent threat of warrantless searches to seek redress in court.

However, the falconers claim their constitutional property rights are already violated when they agree to such searches to obtain required licenses.

“Falconers are injured each time they have to agree to the right of entry and every time their properties are searched,” said Daniel Woislaw, an attorney for the Pacific Legal Foundation, which represents the falconers.

The plaintiffs are caught between “a rock and a whirlpool,” since refusing the licensing requirements would mean giving up their falcons, Woislaw recently argued before a three-judge panel of the 9th U.S. Circuit Court of Appeals.

“We ask for the opportunity to argue these regulations are unconstitutional,” Woislaw said.

The licensing regulations were created to enforce updated protections of the Migratory Bird Treaty Act 30 years ago.

Falconry has been practiced for sport and hunting for millennia, but farmers also hire falconers to chase away other birds capable of consuming large quantities of blueberries, grapes and other crops.

Woislaw said the falconers do not claim that all warrantless administrative searches by the government are unconstitutional.

However, falconry doesn’t pose the same dangerous “externalities” to the public as mining, nuclear energy production and other commercial practices subject to the “closely regulated industry doctrine,” he said.

By obtaining the falconry licenses, the plaintiffs are subject to more than just a hypothetical injury, he said. They’re deprived of their Fourth Amendment protections against unreasonable search and seizure, as the ability to exclude is fundamental to property rights.

“They no longer have the right of security in their homes,” Woislaw said. “It’s a criminal offense to refuse access.”

The falconers filed their lawsuit against both California regulators and the U.S. Fish and Wildlife Service in 2018, as the state government enforces the requirements imposed by federal authorities, he said.

Otherwise, California could argue that it’s simply following the federal government’s requirements, while the federal government could say it has delegated its power to the state, he said.

John Butterfield, an attorney representing California wildlife regulators, said the plaintiffs haven’t offered sufficient evidence of future pending searches to proceed with the lawsuit.

None of the individual plaintiffs have been searched under the licensing requirement for about 30 years, Butterfield said. Though members of the falconry association were searched more recently, the prospect of future searches is speculative.

“Any injury that could happen would happen later on,” he said, adding that the plaintiffs could have developed a record showing that searches were imminent but did not.

When questioned by the judges, Butterfield said California regulators are not committing to never conduct searches.

“We are saying we might do it in the future, and at that point, whoever is searched would have standing to bring a challenge if they want to,” he said.

Michael Gray, an attorney for the federal government, said the U.S. Fish and Wildlife Service isn’t an appropriate defendant in the case because the agency couldn’t redress potential injuries created by California regulators.

Though California’s licensing regulations are based on minimum requirements set by the federal government, the U.S. Fish and Wildlife Service uses different regulatory language than the state government, he said.

In any case, the plaintiffs are not directly challenging permits issued by the federal government, Gray said. “California is making the choices how to conduct the searches.”