GREGORY JOHNSON, Plaintiff/Counterdefendant-Appellee/Cross-Appellant,
DEPARTMENT OF NATURAL RESOURCES and DIRECTOR, DEPARTMENT OF NATURAL RESOURCES, Defendants/Counterplaintiffs-Appellants/Cross-Appellees. and BEAR MOUNTAIN, L.L.C., Plaintiff/Counterdefendant-Appellee, MATTHEW J. TINGSTAD, Plaintiff/Counterdefendant-Appellee/Cross-Appellant,
DEPARTMENT OF NATURAL RESOURCES and DIRECTOR, DEPARTMENT OF NATURAL RESOURCES, Defendants/Counterplaintiffs/Third-Party Plaintiffs-Appellants/Cross-Appellees,
MELISSA PEREZ, Third-Party Defendant-Appellee. ROGER TURUNEN, d/b/a HOGAN LAND IMPROVEMENT COMPANY, Plaintiff/Counterdefendant-Appellee/Cross-Appellant,
DEPARTMENT OF NATURAL RESOURCES and DIRECTOR, DEPARTMENT OF NATURAL RESOURCES, Defendants/Counterplaintiffs-Appellants/Cross-Appellees
Marquette Circuit Court. LC No. 12-050150-CZ. Gogebic Circuit Court. LC No. 12-00044-CZ. Baraga Circuit Court. LC No. 12-006259-CZ.
For GREGORY JOHNSON (321337), PLAINTIFF-COUNTER DEFENDANT-APPELLEE-CROSS APPELLANT: GLENN W. SMITH, MARQUETTE, MI.; JOSEPH P. O'LEARY, L`ANSE, MI.
For DEPARTMENT OF NATURAL RESOURCES (321337), DEFENDANT-COUNTER PLAINTIFF-APPELLANT-CROSS APPELLEE: DANIELLE ALLISON-YOKOM, LANSING, MI.
For MICHIGAN PORK PRODUCERS ASSOCIATION (321337), AMICUS CURIAE: STEVEN T.BUQUICCHIO, GRAND RAPIDS, MI.
For MATTHEW J. TINGSTADT (321338), PLAINTIFF-COUNTER DEFENDANT-APPELLEE-CROSS APPELLANT: GLENN W. SMITH, MARQUETTE, MI.; JOSEPH P. O'LEARY, L`ANSE, MI.
For ROGER TURUNEN (321339), PLAINTIFF-APPELLEE-CROSS APPELLANT: GLENN W. SMITH, MARQUETTE, MI.; JOSEPH P. O'LEARY, L`ANSE, MI.
Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ.
[310 Mich.App. 638] Elizabeth L. Gleicher, P.J.
First published in 1905, Pigs is Pigs, by Ellis Parker Butler, tells the story of a railroad agent who insisted on charging the " livestock" rate for a shipment of two guinea pigs, rather than the lower rate applicable to domestic pets. Butler, Pigs Is Pigs (Colver Publishing House, 1905), pp 5-6. " Rules is rules," the agent announced, and " [t]h' nationality of the pig creates no differentiality in the rate . . . !" Id. at 4, 7. The man who had ordered the guinea pigs refused to be bullied by the bureaucratic agent. Rather than pay a rate he viewed as exorbitant (30 cents a guinea pig), the [310 Mich.App. 639] buyer left the creatures at the station. Id. at 8-9. Within weeks, two guinea pigs became hundreds. The chastened agent announced, " Rules may be rules," but henceforth, " pigs is pets." Id. at 36.
This case presents a 21st Century pig/rule problem. The Michigan Department of Natural Resources (DNR) has declared the wild Russian boar an invasive species subject to " dispossession." Plaintiffs own hundreds of Russian boars, which they breed on ranches and offer as targets for hunters. " Rules may be rules," the owners insist, but despite their pigs' " nationality," the targeted swine are domestic and not wild, and therefore are not an invasive species. Furthermore, plaintiffs argue, the DNR's order is void for vagueness and violates the Equal Protection and Due Process Clauses.
The circuit court rejected plaintiffs' vagueness challenge, but concluded that the DNR's order banning the boars ran afoul of the Equal Protection and due process clauses because it lacked " the standards for a reasonable and rational classification" scheme. Plaintiffs' pigs, the circuit court further determined, are " hybrid" domestic swine rather than wild and invasive pests.
The rules governing our review of this dispute command us to afford great deference to the DNR's method of delineating a particular invasive species. The classification at issue may be imperfect, but it is neither unconstitutionally vague nor irrational. We reverse the circuit court's equal protection and due process rulings, dissolve the injunction it imposed, and affirm that the invasive species order possesses sufficient clarity to pass constitutional muster.
I. BACKGROUND FACTS AND PROCEEDINGS
Plaintiff Greg Johnson owns Bear Mountain, L.L.C., a hunting ranch where customers pay a fee to [310 Mich.App. 640] " harvest" Russian boars and other animals. Russian boars are not native to Michigan. According to the DNR, the wild boars now roaming throughout the state (or their boar ancestors) escaped from hunting ranches. Johnson purchased his initial stock of boars from a seller in Canada. His importation permit, issued by the United States Department of Agriculture, specifically labeled the animals as " Wild Boar." Johnson has also obtained boars from plaintiff Roger Turunen, who raises " swine, primarily of the Russian boar breed for sale to game ranches throughout Michigan." Plaintiff Tingstad purchased two pigs from Turunen. He named them " Gretchen" and " Princess Goreya," and attested that he " developed a strong affection for these pigs," which he described as " members of my family." Sadly, both of Tingstad's pet boars are now deceased.
Unlike Gretchen and Princess Goreya, the majority of Russian boars are not lovable pets. Across the United States, large numbers have escaped from hunting ranches and entered the wild, leaving behind a trail of environmental destruction. According to the United States Department of Agriculture, " [t]he rooting and wallowing activities" of escaped boars and their multitudinous offspring " cause serious erosion to river banks and areas along streams. These destructive animals have been known to tear through livestock and game fences and consume animal feed, minerals, and protein supplements." Feral pigs " feast on field crops such as corn, milo, rice, watermelon, peanuts, hay, turf and wheat," and " will prey upon young livestock and other small animals." United States Department of Agriculture Animal and Plant Health Inspection Service, Feral/Wild Pigs: Potential Problems for Farmers and Hunters, Agriculture Information Bulletin No. 799, [310 Mich.App. 641] available at < https://www.aphis.usda.gov/publications /wildlife_damage/content/printable_version/feral%20pigs.pdf> (accessed May 20, 2015) [http://perma.cc/F5QS-8QH7] .
Michigan's DNR concurs. The page of its website discussing wild pigs recites that " [f]eral swine are a problem for two main reasons--they can host many parasites and diseases that threaten humans, domestic livestock and wildlife; and they can cause extensive damage to forests, agricultural lands and Michigan's water resources." Michigan Department of Natural Resources, Feral Swine in Michigan -- A Growing Problem, available at < http://www.michigan.gov/dnr/0,1607,7-153-10370_12145_55230-230062--,00.html> (accessed May 20, 2015) [http://perma.cc/JM8G-WC5A]. According to the DNR, " [b]y the end of 2011, more than 340 feral swine had been spotted in 72 of Michigan's 83 counties, and 286 [had] been reported killed. A sow can have two litters a year of four to six piglets. Based on their prolific breeding practices, it is estimated that feral swine in Michigan currently could number between 1,000 and 3,000." Id.
Michigan is not the only state plagued with wild pigs. " The 2.6 million pigs in Texas cause $500 million in damage each year--a liability of $200 per pig." Nordrum, Can Wild Pigs Ravaging the U.S. be Stopped ?, Scientific American, October 21, 2014, available at < http://www.scientificamerican.com/article/can-wild-pigs-ravaging-the-u-s-be-stopped/> (accessed May 20, 2015) [http://perma.cc/S2R6-ZELQ]. Florida's feral hog population, estimated at between 500,000 and one million animals, is second only to that of Texas. 2012 Annual State Summary Report of the Wild Hog Working Group, Southeastern Association of Fish and Wildlife Agencies (SEAFWA), p 24, available at [310 Mich.App. 642] < http://www.agfc.com/species/documents/2012annualstatesummaryreporthog.pdf> (accessed May 20, 2015) [http://perma.cc/2QZB-UJ7X]. The SEAFWA Wild Hog Working Group characterizes feral swine as " highly mobile disease reservoirs" that " can carry at least 30 important viral and bacterial diseases, and a minimum of 37 parasites that affect people, pets, livestock, or wildlife." Id. at 51. In a video presentation posted on the Michigan DNR website titled, " A Pickup Load of Pigs: The Feral Swine Pandemic," Part 1, Dr. Michael Bodenchuk, Texas State Director of Wildlife Services, observes: " In Texas, we say that any fence that will hold water will hold hogs. Fences may be hog resistant but they are not hog proof and eventually hogs will be able to breach any fence." Available at < http://www.michigan.gov/dnr/0,1607,7-153-10370_12145_55230-251114--,00.html> (accessed May 20, 2015) [http://perma.cc/32BD-WKRD] .
Closer to home, in 2002, Baraga County Prosecuting Attorney, Joseph P. O'Leary, implored Governor John Engler to motivate " appropriate state agencies" to take action against wild Russian boars that had escaped from a local " game preserve." According to O'Leary, the " strong, fast, intelligent, large (300 pounds)" boars " will eat just about anything," and posed " a serious threat to humans." The letter closed:
You should also be aware that I am advising property owners on the Point Abbaye Peninsula that they do not have to sit idly by while their property is destroyed and their lives or their children's lives are threatened. I have advised them that they have the right to defend themselves and their property from these dangerous animals, including shooting the animals if that is what it takes.
Within several years of O'Leary's letter, agricultural, environmental, and natural resource organizations joined forces to lobby Michigan's Legislature and [310 Mich.App. 643] the DNR for a statewide solution to the wild boar problem. Their efforts culminated in two official acts: the Legislature's 2010 passage of a statute authorizing certain individuals to shoot on sight " swine running at large," MCL 433.14a, and the DNR's 2010 issuance of the Invasive Species Order Amendment No. 1, adding Russian wild boar and their hybrids to the list of Michigan's invasive species. The amended Invasive Species Order (ISO) provides in relevant part:
Possession of the following live species, including a hybrid or genetic variant of the species, an egg or offspring of the species or of a hybrid or genetically engineered variant, is prohibited:
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(b) Wild boar, wild hog, wild swine, feral pig, feral hog, feral swine, Old world swine, razorback, eurasian wild boar, Russian wild boar ( Sus scrofa Linnaeus ). This subsection does not and ...