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Judge rules against DNR in UP pig case

BARAGA COUNTY — After more than seven years of litigation, Baraga County Circuit Court has struck down the Michigan Department of Natural Resources’ declaration that Baraga County pig farmer Roger Turunen and his wife, Brenda, were raising and marketing illegal pigs, under the Invasive Species Order.

The DNR’s ISO, which, prohibits certain breeds of pigs, was unconstitutionally vague when the DNR applied it to the Turunens’ situation, because it failed to provide fair notice of what, specifically, could cause a pig to be classified as illegal, and because the ISO impermissibly encouraged arbitrary and discriminatory enforcement by DNR officials, the court ruled last week.

The court also ruled that regardless of the unconstitutionality of the law, the DNR had failed to prove that any of Turunen’s pigs were prohibited by the ISO.

In 2010, the DNR issued Invasive Species Order Amendment 1, states the court ruling. The amendment added to Michigan’s list of invasive species, Russian boar and hybrids thereof. The ISO states that possessing live species of wild boar, wild hog, wild swine, feral pig, feral hog, feral swine, Old World swine, razorback, Eurasian wild boar and Russian wild boar (Sus scrofa Linnaeus) are prohibited.

The DNR has asserted, since 2012, that Turunen possessed illegal animals, and should be subject to sanctions. According to the ruling, the court disagreed.

Prior to the DNR categorizing eight of Turunen’s pigs as illegal, the ruling states, this court granted a preliminary injunction to Turunen that permitted and authorized him to continue to raise and market pigs during the period of litigation.

“The DNR cannot, in any way, sanction Mr. Turunen for conducting his business in compliance with a valid and effective court order,” stated Judge Charles Goodman in the ruling.

The DNR never provided Turunen any indication of the number of traits exceeding one that might distinguish a legal pig from an illegal one, the ruling states, and Turunen could only guess what a DNR examiner might conclude when examining his pigs. Further, Turunen was not provided with the required fair notice as what specifically could cause a pig to be classified as illegal.

“To give fair notice, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited or required,” states the ruling. “It may not use terms that require persons of common intelligence to guess at their meaning and differ as to their application.”

Concerning Turunen’s pigs (eight in question), the ruling states, the evidence offered by the DNR would support only a finding that each pig was, at best, a Russian bore hybrid, meaning that each animal would be a cross between Russian boar stock and a domestic pig.

“As such, Mr. Turunen’s animals would exhibit less than all of the traits which the DNR associates with Sus Scrofa,” the ruling states. “Mr. Turunen’s pigs, therefore would not mirror the pure Russian boar shown on the (DNR’s) website…and thus, a pig could be ruled prohibited if it had minimal resemblance to the animal depicted on the DNR’s website.”

In a press release from Joseph P. O’Leary, one of the Turunen’s attorneys, O’Leary stated that among other opinions, the court stated that the DNR failed to prove that any of the farmer’s pigs was prohibited by the ISO.

“The ISO, as applied to Mr. Turunen and his animals,” the ruling states, “was unconstitutionally vague.”

The court’s ruling should put an end to the DNR’s enforcement of this ridiculous regulation, said O’Leary, in his release.

Graham Jaehnig can be reached at 906-483-2208 or gjaehnig@mininggazette.com.