State Court of Appeals Upholds DNR Order Prohibiting Russian Boar
Originally published by Michigan Farm News on September 1, 2015; republished with permission.
In a recent decision, the Michigan Court of Appeals upheld a ruling by the Michigan Department of Natural Resources that added Russian boars to the list of Michigan's invasive species.
The DNR's Invasive Species Order (ISO), which was adopted in 2011, forbids possession of swine varieties commonly known as Eurasian or Russian boars, razorbacks or feral hogs, or hybrids exhibiting the same physical features.
Owners of Russian boars have mounted legal challenges to the ISO, including a group of plaintiffs who won a challenge at the circuit court level. The group of plaintiffs, which was comprised of an owner of a hunting preserve, a breeder of Russian boars, and an individual who purchased two Russian boars to keep as family pets, obtained a ruling that the ISO was unconstitutional because it failed to meet the due process and equal protection standards of the Michigan and United States constitutions. The DNR appealed this ruling, and in its June 2, 2015, opinion, the Michigan Court of Appeals reversed the circuit court, holding that the ISO is constitutional.
In reaching its holding, the Michigan Court of Appeals noted the health and environmental concerns associated with Russian boars that have escaped from hunting preserves and entered the wild. As the court noted, the USDA reports that the rooting and wallowing activities of wild pigs causes serious erosion to river banks and streams.
According to the USDA, feral swine have also been known to tear through livestock and game fences, feast on field crops, and prey upon young livestock and other small animals. Wild pigs are also known to carry a variety of diseases that can spread to domestic livestock.
The court also cited reports regarding the population of wild pigs in Texas, where officials estimate there are 2.5 million feral swine that cause an estimated $500 million in damage each year, as well as Florida, which is home to as many as 1 million wild pigs. According to the DNR, more than 340 feral swine had been spotted in 72 of Michigan's 83 counties. Based on their "prolific breeding practices," the DNR estimates that feral swine in Michigan currently could number between 1,000 and 3,000.
Turning to the constitutional arguments raised by the parties, the court of appeals first rejected the plaintiffs' equal protection argument, which was that the DNR irrationally, unreasonably, and arbitrarily classified the species of pig that is prohibited in the ISO.
The court held that the classifications set forth in the ISO are reasonable and rationally related to legitimate environmental objectives.
Russian boar are "bad actors," wrote the court, "which escape, breed vigorously, spread disease, eat crops, defecate in lakes, and generally cause ecological mayhem," while domestic pigs "stay at home." The court noted that Michigan has not experienced an "epidemic of escaping barnyard pigs."
The court also rejected the plaintiffs' due process claim, holding that the ISO bears a rational relationship to the DNR's interest in protecting the environment from "the perils posed by escaped Russian boar."
Finally, the court of appeals also held that the ISO is not unconstitutionally vague, as it provides fair notice, in clear enough terms, that plaintiffs' pigs were prohibited. As the court wrote in its opinion, "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."