Roger Turunen v. Department of Natural Resources

STATE OF MICHIGAN
COURT OF APPEALS
GREGORY JOHNSON, FOR PUBLICATION
June 2, 2015
Plaintiff/Counter-Defendant- 9:00 a.m.
Appellee/Cross-Appellant,
and
BEAR MOUNTAIN, L.L.C.,
Plaintiff/Counter-Defendant-
Appellee,
V No. 321337
Marquette Circuit Court
DEPARTMENT OF NATURAL RESOURCES LC No. 12-050150-CZ
and DIRECTOR, DEPARTMENT OF NATURAL
RESOURCES,
Defendants/Counter-Plaintiffs-
Appellants/Cross-Appellees.
MATTHEW J. TINGSTADT,
Plaintiff/Counter-Defendant-
Appellee/Cross-Appellant,
V No. 321338
Gogebic Circuit Court
DEPARTMENT OF NATURAL RESOURCES LC No. 12-00044-CZ
and DIRECTOR, DEPARTMENT OF NATURAL
RESOURCES,
Defendants/Counter-Plaintiffs-
Appellants/Cross-Appellees.
ROGER TURUNEN, d/b/a HOGAN LAND
IMPROVEMENT COMPANY,
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Plaintiff-Appellee/Cross-Appellant,
V No. 321339
Baraga Circuit Court
DEPARTMENT OF NATURAL RESOURCES LC No. 12-006259-CZ
and DIRECTOR, DEPARTMENT OF NATURAL
RESOURCES,
Defendants-Appellants/Cross-
Appellees.
Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ.
GLEICHER, 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 “th’ nationality of the pig creates no
differentiality in the rate.” Id. at 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 buyer left the creatures at the station. Id. at 8. 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 has declared the wild Russian boar an invasive species subject to “dispossession.”
Plaintiffs own hundreds of Russian boar, 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 boar 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 for 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.
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I. BACKGROUND FACTS AND PROCEEDINGS
Plaintiff Greg Johnson owns a hunting ranch called Bear Mountain, L.L.C., where
customers pay a fee to “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 boar 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.” Feral/Wild Pigs: Potential Problems for Farmers and Hunters,
Agriculture Information Bulletin No. 799, issued by the United States Department of Agriculture
Animal and Plant Health Inspection Service, available at (accessed May 20,
2015).
Michigan’s DNR concurs. The page of its website discussing wild pigs recites that “feral
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, available at (accessed May 20, 2015). According to the DNR, “[M]ore
than 340 feral swine had been spotted in 72 of Michigan’s 83 counties, and 286 have 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 14, 2014, available at

(accessed May 20, 2015). 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),
available at
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(accessed May 20, 2015), p 24. 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,” 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 (accessed May 20, 2015).
Closer to home, in 2002 the Baraga County Prosecuting Attorney, Joseph P. O’Leary,
implored Governor John Engler to motivate “appropriate state agencies” to take action against
wild Russian boar 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 be 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 the DNR for a state-wide
solution to the wild boar problem. Their efforts culminated in two official acts: the Legislature’s
passage of a statute authorizing certain individuals to shoot on sight “swine running at large,”
MCL 433.14a, and the DNR’s issuance of Invasive Species Order Amendment No. 1 (ISO),
adding Russian wild boar and their hybrids to the list of Michigan’s invasive species. The 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:
***
(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 is not intended to affect sus domestica
involved in domestic hog production.
The DNR issued the ISO in August 2011, and delayed its effect first until October 8, 2011, and
then until April 1, 2012.
The ISO was met with a firestorm of opposition from Russian boar owners. One owners’
group sued the DNR, alleging that it amounted to an unconstitutional taking of property and that
the DNR’s director lacked the legal authority to issue it. We rejected those challenges in Mich
Animal Farmers Ass’n v Dep’t of Natural Resources & Environment, unpublished opinion per
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curiam of the Court of Appeals, issued March 1, 2012 (Docket No. 305302).1 On another front,
the Michigan Animal Farmers Association (MAFA) petitioned for a declaratory ruling from the
DNR pursuant to MCL 24.263, seeking more information concerning the scope of the order and
the manner in which it would be applied. MAFA queried, “Specifically, what kind of qualitative
testing will the MDNR be conducting and what results will determine if a specific animal is a
hybrid, genetic variant or offspring or the prohibited swine listed in the ISO?”
The DNR responded by issuing a declaratory ruling describing the nine “specific
physical, biochemical, or behavioral characteristics” it would use to correctly identify Sus scrofa,
the Linnaean name for the species deemed invasive by the ISO.2 For example:
• Bristle-tip coloration: Sus scrofa exhibit bristle tips that are lighter
in color (e.g., white, cream, or buff) than the rest of the hair shaft.
This expression is most frequently observed across the dorsal
portion and sides of the snout/face, and on the back and sides of
the animal’s body.
• Dark “point” coloration: Sus scrofa exhibit “points” (i.e., distal
portions of the snout, ears, legs and tail) that are dark brown to
black in coloration, and lack light-colored tips on the bristles.
***
• Tail Structure: Sus scrofa exhibit straight tails. They contain the
muscular structure to curl their tails if needed, but the tails are
typically held straight. Hybrids of Sus scrofa exhibit either curly
or straight tail structure.
• Ear Structure: Sus scrofa exhibit erect ear structure. Hybrids of
Sus scrofa exhibit either erect or folded/floppy ear structure.
Rather than soothing the boar owners’ hostility to the ISO, the declaratory ruling threw
gasoline on the flames. Plaintiffs and others objected that many of the characteristics listed by
the DNR applied to run-of-the-mill, barnyard pigs. Given that all pigs have erect or floppy ears
and straight or curly tails, plaintiffs urged, the declaratory ruling confounded their ability to
1
Plaintiffs in these consolidated cases have not challenged the authority of the DNR to issue an
invasive species order.
2
During the 18th Century, Swedish botanist and zoologist Carl Linnaeus developed a system for
classifying organisms, which bears his name. According to that system, “sus” refers to the genus
and “scrofa” refers to the species. The DNR maintains that sus domestica properly names the
species of pig we equate with barnyards and pork production. There are more than two species
of pigs, but we need not concern ourselves with the rest of them. And lest there be any
confusion, guinea pigs are actually a species of rodent: cavia porcellus.
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determine whether their pigs must go. They maintained that the DNR’s categorization scheme
lacked scientific validity and opened the door to their prosecution for possession of “domestic,”
penned, well-cared-for pigs bearing the same distinguishing characteristics as feral boar. These
three lawsuits, filed in three different circuit courts, followed.3 The parties agreed to consolidate
the cases in the Marquette Circuit Court for resolution of their common legal issues.
Both sides moved for summary disposition under MCR 2.116(C)(10). They provided the
court with voluminous evidence, including published scientific literature and testimony given by
veterinarians and animal scientists. Plaintiffs did not take issue with the notion that free-ranging
Russian boars present real and serious environmental danger. Rather, they insisted that their pigs
are not “wild,” and do not fall within the ambit of the ISO. Plaintiffs stressed that “all pigs,
regardless of breed or nickname, are of one and the same species and all are descended from one
and the same ancestor, the eurasian wild boar.” Thus, they argued, the invasive species order as
clarified by the declaratory ruling arbitrarily and capriciously selected only one type of pig—the
wild Russian boar—for prohibition. Echoing Ellis Parker Butler, plaintiffs emphasize that “pigs
are pigs,” and even a barnyard hog will “transition” to a feral menace if given the opportunity.
Moreover, plaintiffs contended, the characteristics distinguishing Russian boars from
their porcine cousins lacked practical utility, since domestic and wild pigs share many of the
same traits as those listed in the declaratory ruling.4 Plaintiffs highlighted a statement made by
Dr. John J. Mayer, a scientist who consulted with the DNR in developing the ISO, that “the
identification of completely reliable defining characteristics” for feral hogs, Eurasian wild boar,
and hybrids between the two “has yet to be achieved.” Mayer & Brisbin, Texas Natural Wildlife:
Distinguishing Feral Hogs From Introduced Wild Boar and Their Hybrids: A Review of Past and
Present Efforts, available at (accessed May 20, 2015).
The DNR countered that the invasive species order identified a prohibited species, as
required by MCL 324.41302(3).5 Shannon J. Hanna, a wildlife biologist employed by the DNR,
averred:
3
Two additional cases raising the same issues were filed in two additional counties, but these
have been resolved or dismissed and we need not consider them.
4
The DNR admitted in response to a request for admission that “not every phenotype
characteristic” listed in the declaratory ruling “is unique to Sus scrofa Linnaeus. Some of the
characteristics in the list may be shared by some breeds of the species Sus domestica.”
5
In January 2015, the Legislature amended MCL 324.41301 et seq., generally called the
Invasive Species Act. The amendments took effect on April 15, 2015. Before the amendment,
MCL 324.41302(3) provided in pertinent part:
The commission of natural resources or the commission of agriculture, as
applicable, shall list a species as a prohibited species or restricted species if the
commission of natural resources or commission of agriculture, respectively,
determines the following:
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The separation of Sus scrofa (wild boars) and Sus domestica (domestic
pigs) into different species is a scientifically accepted method of classifying these
animals. Scientific and taxonomic resources classify wild boars and domestic
pigs as separate species rather than subspecies. For example, Corbet, G.B., and
Hill, J.E., The Mammals of the Indomalayan Region: A Systemic Review (British
Museum: 1922), which lists the scientific nomenclature of the region’s mammals,
classifies wild boars (Sus scrofa) and domestic pigs (Sus domestica) as separate
species.
Hannah explained that “[i]f two animals cannot breed and create fertile offspring, then they are
considered separate species.” “However, the converse is not true,” she elaborated. “[W]olves
. . . and domestic dogs . . . are different species, but can breed and produce fertile offspring.” So
can Sus scrofa and Sus domestica. Nonetheless, Hannah asserted, they are separate species. In
less scientifically sophisticated parlance, the DNR advocated: “A Russian boar inside a fence
does not become a different species when it escapes or is released and becomes wild.”
Regardless that plaintiffs’ boars reside in pens, the DNR contended, the invasive species order
properly outlaws them.
Plaintiffs also sought a declaratory judgment that the invasive species order and
declaratory ruling were void for vagueness, claiming that neither affords the DNR with a reliable
method of distinguishing between forbidden and permitted swine. Given that all pigs share the
same ancestral lineage and many of the same physical features, plaintiffs urged, enforcement of
the invasive species order would result in the “unfettered, unlimited discretion” of the DNR to
(a) For a prohibited species, all of the following requirements are met:
(i) The organism is not native to this state.
(ii) The organism is not naturalized in this state or, if naturalized, is not widely
distributed in this state.
(iii) One or more of the following apply:
(A) The organism has the potential to harm human health or to severely
harm natural, agricultural, or silvicultural resources.
(B) Effective management or control techniques for the organism are not
available.
The amended version of this subsection now appears at MCL 324.41302(2). The
Legislature added the word “nonaquatic” before the term “prohibited species,” eliminates the
words “to this state” from former subsection (3)(a)(ii), and substitutes the term “relevant
commission” for the previous term “[t]he commission of natural resources or the commission of
agriculture.” With respect to the control of mammalian species, “[t]he relevant commission” is
now defined as “the natural resources commission, department of natural resources, or the
director of the department of natural resources, respectively.” MCL 324.41301(1)(m).
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eliminate whichever pigs it chooses. The DNR riposted that plaintiffs’ admission to owning
Russian boar dispensed with their vagueness claim.
The circuit court ruled that plaintiffs lacked standing to assert a vagueness challenge
because they admitted to owning the animals identified in the order. However, the court sided
with plaintiffs on their equal protection and due process claims. The circuit judge also concluded
that the animals under plaintiffs’ control were exempt from the invasive species order because
they qualified as domestic hogs. The court enjoined any enforcement of the ISO directed against
plaintiffs’ pigs.
In June 2014, after the court entered its order granting plaintiffs’ partial summary
disposition, the DNR rescinded the declaratory ruling. The rescission notice is a public record,
and we have taken judicial notice of it. MRE 201. The notice states that the species Sus scrofa
Linnaeus, or Russian boar and their hybrids, remain prohibited under the invasive species order,
but that Sus domestica, including “pigs like Mangalitsa, Duroc, Yorkshire, and Hampshire” are
not illegal.6 The DNR explained in the notice that it rescinded the declaratory ruling because
“[m]any in the public have confused the Declaratory Ruling with the Invasive Species Order and
misread it as interpreting the Invasive Species Order to apply to animals other than Russian boar
and their hybrids.”
The DNR now appeals on leave granted the circuit court’s order granting plaintiffs’
summary disposition motion in part. Plaintiffs cross appeal the circuit court’s order dismissing
their void-for-vagueness claim.
II. ANALYSIS
We review de novo the circuit court’s summary disposition ruling. West v Gen Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A court may grant summary disposition under
subrule (C)(10) if no genuine issue exists regarding any material fact and the moving party is
entitled to judgment as a matter of law. Id. Whether a party has standing is a legal question
subject to de novo review. Manuel v Gill, 481 Mich 637, 642; 753 NW2d 48 (2008). We also
apply de novo review to constitutional questions. Bonner v City of Brighton, 495 Mich 209, 221;
848 NW2d 380 (2014).
We begin by narrowing the frame of debate. Because the DNR has rescinded the
declaratory ruling, we need not consider the uncertainties and ambiguities created by that
document. The remaining issues are whether the ISO is unconstitutional on due process or equal
protection grounds, or void for vagueness. Furthermore, plaintiffs do not assert that the ISO is
unconstitutionally arbitrary or capricious in all possible applications; we do not understand
plaintiffs to argue that the DNR improperly trained its sights on the Russian boars living in the
wild. Rather, plaintiffs complain that if the ISO covers their swine, it violates constitutional
standards.
6
The names refer to breeds rather than to individual pigs.
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Well-established principles guide our analysis. As a regulatory action that does not
implicate fundamental rights, the ISO is subject to rational-basis review.7 Therefore, it need only
be rationally related to a legitimate government purpose to survive plaintiffs’ challenge. Wysocki
v Kivi, 248 Mich App 346, 354; 639 NW2d 572 (2001). Rational-basis review is highly
deferential. Phillips v Mirac, Inc, 470 Mich 415, 433; 685 NW2d 174 (2004). The limited scope
of our inquiry “reflects the judiciary’s awareness that it is up to legislatures, not courts, to decide
on the wisdom and utility of legislation.” American States Ins Co v Dep’t of Treasury, 220 Mich
App 586, 597; 560 NW2d 644 (1996) (quotation marks and citation omitted).
The ISO bears a presumption of constitutionality, “and the party challenging it bears a
heavy burden of rebutting that presumption.” People v Idziak, 484 Mich 549, 570; 773 NW2d
616 (2009) (quotation marks and citation omitted). “To prevail under this highly deferential
standard of review, a challenger must show that the legislation is arbitrary and wholly unrelated
in a rational way to the objective of the statute.” Id. at 570-571 (quotation marks and citation
omitted). “A rational basis exists for the legislation when any set of facts, either known or that
can be reasonably conceived, justifies the discrimination.” Morales v Parole Bd, 260 Mich App
29, 51; 676 NW2d 221 (2003). We must uphold the ISO if the DNR’s decision to issue it is
“supported by any set of facts, either known or which could reasonably be assumed, even if such
facts may be debatable.” Crego v Coleman, 463 Mich 248, 259-260; 615 NW2d 218 (2000).
Thus, only in rare and exceptional cases will rational-basis review result in invalidating a law.
We now apply these principles to the arguments before us.
A. THE EQUAL PROTECTION CHALLENGE
The DNR first takes aim at the circuit court’s ruling that the ISO contravenes the Equal
Protection Clauses of the United States and Michigan Constitutions, US Const, Am XIV; Const
1963, art 1, § 2, which guarantee the right to equal protection of the law. The circuit court found
that the ISO unreasonably and arbitrarily classifies the pigs “under the[] control and husbandry”
of plaintiffs as an invasive species, while permitting unfettered ownership of swine “under the
control and husbandry of other pig farmers.” Both pig varieties descended from a common
ancestor and are genetically related, the circuit court observed. Because the favored pigs and the
banned pigs share many characteristics, the court reasoned, the DNR irrationally, unreasonably,
and arbitrarily classified them disparately.
7
When the Legislature grants rulemaking authority to an agency such as the DNR, the validity of
a rule or regulation hinges on whether the administrative action: (1) falls “within the subject
matter of the enabling statute,” (2) “complies with the legislative intent underlying the enabling
statute,” and (3) is not “arbitrary or capricious.” Mich Farm Bureau v Dep’t of Environmental
Quality, 292 Mich App 106, 129; 807 NW2d 866 (2011). Plaintiffs have not challenged the first
two preconditions. The third, which calls for upholding a challenged rule if it is not arbitrary or
capricious, equates with rational-basis analysis: “If a rule is rationally related to the purpose of
the statute, it is neither arbitrary nor capricious.” Dykstra v Dep’t of Natural Resources, 198
Mich App 482, 491; 499 NW2d 367 (1993).
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The DNR counters that “[t]he feral swine problem in Michigan is a Russian boar
problem,” and the ISO’s division of pig species into Sus scofa and Sus domestica is justified by
the evidence. In our view, the DNR has the better argument, as the classifications set forth in the
ISO are reasonable and rationally related to legitimate environmental objectives.
When applying the highly deferential review afforded to environmental regulations,
courts must uphold a classification against an equal protection challenge “if there is any
reasonably conceivable state of facts that could provide a rational basis for the classification.”
FCC v Beach Communications, Inc, 508 US 307, 313; 113 S Ct 2096, 124 L Ed 2d 211 (1993).
In general, the Equal Protection Clause is satisfied so long as there is a plausible
policy reason for the classification, the legislative facts on which the classification
is apparently based rationally may have been considered to be true by the
governmental decisionmaker, and the relationship of the classification to its goal
is not so attenuated as to render the distinction arbitrary or irrational. [Nordlinger
v Hahn, 505 US 1, 11; 112 S Ct 2326; 120 L Ed 2d 1 (1992) (citations omitted).]
We look to reasons that the DNR promulgated the ISO, and whether those reasons logically
justify the rule.
In prohibiting the possession of all pigs of the species Sus scrofa Linnaeus, the DNR
reasoned that pigs of this species are environmental “bad actors.” They escape, breed
vigorously, spread disease, eat crops, defecate in lakes, and generally cause ecological mayhem.
Domestic pigs, Sus domestica, stay home. Michigan has not experienced an epidemic of
escaping barnyard pigs. While one of plaintiffs’ expert witnesses averred that traditionally-
farmed pigs eventually develop feral tendencies if loosed into the wild, no evidence substantiates
that significant numbers of domesticated pigs actually get away and remain on the run.
Domestic pigs simply do not cause the vexing environmental problems created by their boar
cousins. The policy reasons for the distinction between Sus scrofa and Sus domestica qualify as
plausible, evidence-based, and directly related to the goal of eradicating Michigan’s wild boar
scourge.
While plaintiffs appear to be highly responsible Russian boar owners, the fact remains
that all Russian boars now inhabiting the wilds of our state were once penned Russian boar, or
are descended from such animals. The DNR’s decision to ban “Russian wild boar (sus scrofa
Linnaeus)” advances the DNR’s legitimate objective of preventing any augmentation of the
present wild pig population. We emphasize that “[a] classification does not fail rational-basis
review because it is not made with mathematical nicety or because in practice it results in some
inequity.” Heller v Doe, 509 US 312, 321; 113 S Ct 2637; 125 L Ed 2d 257 (1993) (quotation
marks and citation omitted). The United Supreme Court amplified this point in Heller: “The
problems of government are practical ones and may justify, if they do not require, rough
accommodations—illogical, it may be, and unscientific.” Id. (quotation marks and citation
omitted). As judges, we are not equipped to weigh the genetic or behavioral differences in hog
species. The Legislature has consigned this task to the DNR.
Thus, the ISO easily survives plaintiffs’ equal protection challenge. That the DNR has
chosen to ban possession of certain pigs and not others embodies a reasonable exercise of
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discretion. Nor did the DNR arbitrarily or capriciously classify wild Russian boar as an invasive
species harboring the capacity to harm natural and agricultural resources. Although the ISO
discriminates among pigs, the distinctions it draws are eminently rational, and thereby
permissible. The circuit court erred by finding otherwise.
B. THE DUE PROCESS CHALLENGE
Next, we consider whether the ISO contravenes substantive due process principles
contained within the United States and Michigan Constitutions, US Const, Am XIV; Const 1963,
art 1, § 17. The circuit court found that the distinctions between pig species articulated by the
ISO and the declaratory ruling lacked reasonably precise standards, and swept so broadly that
they subjected plaintiffs for prosecution for owning “legal” pigs. On appeal, plaintiffs add that
the ISO “lacks any standards whatsoever,” thereby making “every pig in Michigan a prohibited
species[.]” The ISO “is so lacking in standards,” they claim, that it bans their pigs despite that
the targeted boar are not wild and do not create the problems the ISO seeks to prevent.8 Further,
plaintiffs assert, the ISO lacks any substantial relationship to the health, safety, morals or general
welfare, as “any pig not properly controlled” and managed by humans can cause the same
environmental ruin as feral pigs.
“While the touchstone of due process, generally, ‘is protection of the individual against
arbitrary action of government,’ the substantive component protects against the arbitrary exercise
of governmental power[.]” Bonner, 495 Mich at 224 (citations omitted). To satisfy due process
standards, the ISO must reasonably relate to a legitimate governmental purpose. Id. at 230. The
ISO easily passes this test.
The evidence advanced by the DNR supports that the pigs identified in the ISO, “[w]ild
boar, wild hog, wild swine, feral pig, feral hog, feral swine, Old world swine, razorback,
Eurasian wild boar, Russian wild boar (sus scrofa Linnaeus)” and their “hybrids or genetic
variant[s]” pose a serious threat to Michigan’s farming industry and natural resources. Plaintiffs
offered no evidence to the contrary. Given the DNR’s well-founded fear that escaped boar of the
species Sus scrofa Linnaeus will decimate existing ecosystems, the decision to name these pigs
as invasive species is neither arbitrary nor capricious. The ISO bears a rational relationship to
the DNR’s interest in protecting the environment from the perils posed by escaped Russian boar.
We discern no substantive due process violation.
Plaintiffs’ insistence that their Russian boars are not “wild,” and therefore incapable of
ravaging the environment, does not alter our analysis. By excluding “sus domestica involved in
domestic hog production” from the ISO’s reach, plaintiffs assert, the DNR has impermissibly
and arbitrarily treated their boar as second-class swine. We remain unpersuaded that the DNR’s
classification system contravenes substantive due process principles.
8
Plaintiffs’ due process arguments overlap with their void-for-vagueness claims. We address the
latter in section C.
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As we observed in the equal protection context, our Legislature has designated the DNR
as the arbiter of invasive species. The DNR sighted on particular swine, which it defined with
nomenclature found in “[s]cientific and taxonomic resources[.]” The Latin words employed by
the DNR apparently engender controversy among those engaged in the academic study of pigs,
but we need not enter that debate. The DNR’s approach to its task rests on rational grounds.
The evidence presented by the DNR substantiates that the pigs identified in the ISO threaten the
environment even though many of them are currently caged. Logically, we cannot quarrel with
the notion that reducing Michigan’s total wild boar population will slow the growth of the boar
population living outside fences. Accordingly, we find no substantive due process violation, and
reverse the circuit court’s contrary ruling.
C. THE VOID-FOR-VAGUENESS CHALLENGE
Before mounting their due process and equal protection challenges, plaintiffs moved for
summary disposition on void for vagueness grounds. The circuit court ruled that plaintiffs
lacked standing to argue that the ISO is unconstitutionally vague, because each admitted to
possessing the animals identified in the ISO. Plaintiffs now cross appeal this ruling, contending
that the circuit court applied standing principles no longer accepted by the Michigan Supreme
Court.
Although not displeased with the circuit court’s ultimate ruling on this issue, the DNR
also finds fault with the circuit court. According to the DNR, the circuit court employed a stealth
“void for vagueness” analysis when it granted summary disposition of plaintiffs’ due process
claims by ruling that the ISO failed to provide fair warning as to which pigs must be
dispossessed. We agree with the DNR. “[A]t the risk of committing a felony,” the circuit court
queried in its summary disposition opinion, “how is one to know whether a hybrid pig possessed
by a farmer or a game rancher such as Plaintiff Turunen or Johnson is, or is not, in violation of
the ISO and Statute?” This sounds like a vagueness concern.
The circuit court resolved the question correctly the first time around: the ISO provides
fair notice that plaintiffs’ pigs are prohibited. Its terms are clear enough. Whether living
domestically or in the wild, Sus scrofa Linnaeus is now deemed an invasive species. Plaintiffs
quarrel with the legitimacy of the Sus scrofa Linnaeus designation, but they do not deny that
their pigs meet it. Accordingly, their void-for-vagueness challenge lacks merit.
“Due process requires that a State provide meaningful standards to guide the application
of its laws.” Pacific Mut Life Ins Co v Haslip, 499 US 1, 44; 111 S Ct 1032; 113 L Ed 2d 1(1991) (O’CONNOR, J., dissenting). Void-for-vagueness tenets embrace the principle that a law is
unconstitutional “if its prohibitions are not clearly defined.” Grayned v City of Rockford, 408
US 104, 108; 92 S Ct 2294; 33 L Ed 2d 222 (1972). The Supreme Court explained:
Vague laws offend several important values. First, because we assume that man
is free to steer between lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap the innocent by
not providing fair warning. Second, if arbitrary and discriminatory enforcement
is to be prevented, laws must provide explicit standards for those who apply them.
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A vague law impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application. [Id. at 108-109 (citations
omitted.]
Because we are “[c]ondemned to the use of words, we can never expect mathematical certainty
from our language.” Id. at 110.
To give fair notice, a statute “must give a person of ordinary intelligence a reasonable
opportunity to know what is prohibited or required.” Kenefick v Battle Creek, 284 Mich App
653, 655; 774 NW2d 925 (2009) (quotation marks and citation omitted). It may not use terms
that require persons of common intelligence to guess at their meaning and differ as to its
application. People v Hrlic, 277 Mich App 260, 263; 744 NW2d 221 (2007). On the other hand,
a statute is sufficiently definite if its meaning can be “fairly ascertain[ed] by reference to judicial
interpretations, the common law, agency rules, dictionaries, treatises, or the commonly accepted
meanings of the words.” People v Sands, 261 Mich App 158, 161; 680 NW2d 500 (2004).
The ISO’s delineation of the species declared invasive leaves little to the imagination.
The words used to identify forbidden pigs do not describe Porky Pig, guinea pigs, or any of the
swinish breeds associated with a farm or a livestock yard. Moreover, plaintiffs are well aware of
the differences between their boars and pigs raised for agricultural purposes. We find
disingenuous plaintiffs’ objection that the ISO’s inclusion of the modifier term “wild” excludes
their penned boars. Plaintiffs purchased “wild Russian boar” and still own the boars they
brought to Michigan, or their offspring, or hybrids of progenitor wild Russian boar. Further,
plaintiffs filed these actions because they knew that the DNR intended to dispossess them of their
animals.9 The lines drawn in the ISO between protected and prohibited pigs are neither elusive
nor uncertain, and suffice to provide fair notice to swine owners of ordinary intelligence. No
more is required. We affirm the circuit court’s initial ruling that the ISO is not unconstitutionally
vague.
D. THE INJUNCTION
The circuit court ruled that “[t]o the extent enforcement of the ISO against these Plaintiffs
would constitute a taking of their property under an administrative order not meeting
constitutional standards” an injunction prohibiting any seizure of plaintiffs’ pigs would issue.
We have determined that the ISO meets constitutional standards in all respects. Accordingly, we
dissolve the injunction.
9
We agree with plaintiffs that the circuit court incorrectly invoked a “standing” analysis to reject
their vagueness challenge. Plaintiffs had standing to complain that as applied to them, the ISO is
unconstitutionally vague. Their admission that they own some “wild Russian boar” is evidence
that the ISO is not vague, but did not foreclose their vagueness argument.
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We affirm in part, reverse in part, and remand for further proceedings consistent with this
opinion. We do not retain jurisdiction. No taxable costs may be imposed under MCR 7.219, as
this case presents important public policy questions.
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
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