Judge Denies Request to Overturn Michigan Exotic Swine Ban

November 25, 2012

Conservation Policy, Wildlife

The reasons for the State’s action to ban the ownership and possession of feral swine (wild pigs, Eurasian boar, and the like) have been well documented.  Chief among these are disease risks to both wildlife and domestic pork production, habitat damage, and even human health and safety. Their free-ranging numbers in Michigan alone are now estimated to be in excess of 1,000.

In an effort to address this emerging problem, an order by the State of Michigan which declared “sporting swine” to be an invasive species was issued in 2010 and was formally affirmed in 2011.  Beginning with the date of issuance for the original Invasive Species Order, a 15 month period was provided which should have been more than adequate for those who had animals which fit the designation criteria to take the necessary measures to assure compliance.

Not surprisingly, when the April 1, 2012 compliance deadline occurred there were a few facility operators who chose to resist the order for reasons which included claims of “constitutional rights” and economic opportunity.  We must have missed the Constitutional Amendment which gave every U.S. citizen the right to risk the health and well-being of all for the personal interests of an incredibly few.

In what was initially a clear attempt to appeal to the Agenda 21 crowd, rumors began to circulate this past spring that the DNR was conducting “raids” on farms and game ranches.  The attempt to win the war of public opinion by those resisting the law even included the characterization that these raids were being performed by State and Federal agents who were killing children’s pet piggies – all of which was patently untrue.

While legal challenges will likely continue, a favorable ruling was handed down last week by a Marquette County judge.  Judge Thomas Solka ruled that someone who is conducting an illegal activity cannot use a claim of “vagueness” in the law as the basis for legal challenge.

Although not mentioned by the judge, this attempt to argue the issue of “vagueness” is weak at best. The reality is that those individuals who are mounting the legal challenge would not be doing so if they did not already know that the animals in question were clearly subject to the law – nothing vague about that.  In this case, the definitions of what constitutes an exotic swine needs to be sufficiently broad to cover the possible emergence of new “breeds” which have yet to be developed, perhaps solely for the purpose of creating an exception to the law.

While we would be the first to acknowledge that Spanish Explorer Hernando de Soto did not need anyone’s permission in 1539 to make what is believed to have been the initial release of feral hogs into North America, it is also likely that he did not envision a world where all of the land was not claimed by his employer.

The full Associated Press release on Judge Solka’s ruling follows:

Associated Press

8:36 a.m. EST, November 20, 2012

A northern Michigan judge rejected claims Monday the state’s ban on exotic swine is unconstitutionally vague, but said lawsuits challenging the policy can move forward because they raise other issues for courts to consider.

The Department of Natural Resources last year outlawed possession of the animals, which are known by labels such as wild boar, feral swine, razorback and Eurasian wild boar. Officials say they’re escaping from hunting preserves, reproducing and wreaking havoc in woods and fields. The DNR has tallied 385 sightings in the state but estimates thousands of the hogs are running loose.

Five lawsuits opposing the policy have been filed by farmers and ranchers — and in one case, a man and woman keeping two pigs as family pets. The owners contend they’re being unfairly targeted and insist their animals aren’t escaping.

The five lawsuits were consolidated for a ruling on whether, as opponents contend, the hog ban cannot be enforced because it’s so vaguely worded that citizens can’t figure out which pigs are illegal.

“We’ll continue fighting this,” said Ron McKendrick, owner of a Cheboygan County ranch that offered Russian wild boar hunts. He said the Marquette County judge’s decision was a disappointment.

 DNR spokesman Ed Golder said, “We’re pleased with the ruling and we’re going to continue to defend the department’s position in court.”

The DNR regulation lists a number of characteristics that could be used to determine a hog’s status. Critics say some of them, including descriptions of tails and ears, could apply to any swine — including domestic hogs. The DNR says it considers all characteristics when passing judgment.

In his written opinion, Judge Thomas Solka noted a U.S. Supreme Court ruling that a person doing something illegal has no standing to complain the law is too unclear to be applied to others. A state court also found that owners of “wolfdog” hybrids could not challenge a ban on those animals on grounds of vagueness.

 The people fighting the feral swine rule have acknowledged possessing such animals, so they can’t use the vagueness argument, Solka said.

But he did say people could press other claims — such as that the policy is arbitrary, violates due process and amounts to an illegal government taking of private property — that could be dealt with by courts in the five counties where the suits were filed.

About Northern Michigan Conservation Network

The mission of the Northern Michigan Conservation Network is to "connect conservation-minded hunters, anglers, and outdoor enthusiasts to those issues affecting Michigan's forests, waters, and wildlife."

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