# Judges Decision



## bentduck (Aug 19, 2003)

Judge: State's Wild Pig Ban Unconstitutional, Order Stayed Pending Appeal

An Upper Peninsula county judge has ruled against the state's 2010 ban on wild pigs, declaring the order unconstitutional and "arbitrary," but issued a stay on the decision pending a possible appeal. 

Judge Thomas SOLKA threw out the Michigan Department of Natural Resources' (DNR) Invasive Species Order (ISO) that made certain wild pigs illegal, saying it violated the equal protection and due process clauses of both the Michigan and U.S. constitutions. 

The ruling mentioned an appeal is likely, so Solka stayed the decision. 

The ISO in question outlawed the following species and their hybrid or genetic variants: "Wild boar, wild hog, wild swine, feral pig, feral hog, feral swine, Old world swine, razorback, eurasian wild boar, Russian wild boar." 

The DNR, defending the ban by citing the dangers wild pigs have on wildlife, called the decision "unfortunate." The DNR has referred to these wild pigs as the terrestrial version of Asian carp. 

"It's unfortunate the court's ruling did not recognize the threat posed by Russian boars and the damage these animals can do to Michigan's natural and agricultural resources," said DNR spokesperson Ed GOLDER in a statement. "We are reviewing the ruling within the 21-day window for appeal. In the meantime, according to Judge Solka's ruling, the Invasive Species Order remains in effect in Michigan." 

But Joseph O'LEARY, who represented the plaintiff pig owners, praised the decision. 

"I can say that we are pleased with Judge Solka's ruling because it is legally and scientifically sound and vindicates the position we have take from the outset: A pig is a pig. Feral and wild pigs outside a fence are a problem, while domesticated pigs inside a fence under the proper husbandry of humans are not a problem," O'Leary said in an email. "We are grateful that Judge Solka recognized that fact and we are hopeful that now the DNR will focus its attention on legitimate, scientifically sound measures that may actually eliminate feral swine from Michigan without trampling on the rights of farmers." 

Two lawmakers, Sens. Darwin BOOHER (R-Evart) and Tom CASPERSON (R-Escanaba), released a statement praising Solka's decision. 

"The judge clearly recognized that the small business owners are raising domestic hogs and do not own wild or feral swine," Booher said in the release. "We congratulate our constituents for winning their day in court and for standing up against the state government's overreach." 

The judge's decision affects three similar cases consolidated in the Marquette County Circuit Court. After the DNR deemed their pigs illegal, the pig owners challenged the ISO, both in their own individual circumstances and the DNR's authority as a whole to issue the order (See "U.P. Judge Expected To Rule On State's Wild Pig Prohibition," 3/14/14). 

The pig owners did not succeed by challenging the state's authority but did succeed in getting relief from the order, as Solka found the ISO and the declaratory ruling to be an "arbitrary and unreasonable classification of pigs under the control of these Plaintiffs as illegal invasive species." 

Part of that reason was the list of eight physical characteristics the DNR developed that would determine which pigs were illegal. 

Some of these characteristics, like having a straight tail or curly tail and erect or floppy ears, become problematic because, "according to the [state's] own experts, non-feral, domestic swine may also possess 'one or more' of these phenotypes," Solka wrote. "How is a swine owner of an animal with 'one or more' of these phenotypes to know whether he and his animals are subject to prosecution or civil action by the state?" 

Plus, Solka pointed out that one of the state's own witnesses testified that a feral pig is any kind of free-roaming pig, not a particular breed of pig. 

While Solka agreed that wild, feral swine are a threat to the environment, he found that the ISO could allow DNR officials to find one pig legal and another pig illegal because they both possess one or more of the listed physical criteria. 

"This leaves the court to conclude that the current ISO and classification constitutes an unreasonable and arbitrary classification," Solka wrote. 

Solka found the individual pig owners in this case and their pigs did not violate the law, because their pigs were found not to be wild but under the control and care of their owners. 

The plaintiffs in the case are Gregory JOHNSON of Marquette County, Roger TURUNEN of Baraga County and Matthew TINGSTAD of Gogebic County.


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## Robert Holmes (Oct 13, 2008)

The terrestrial version of Asian carp is the grey wolf.Look at all of the economic damage that they have caused throughout the Midwest and western states. If they were so good then why hasn't the DNR relocated them to the LP? They can't compare to the damage a couple of wild pigs can do.


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## hockeydave (Dec 11, 2007)

I've been watching this feral pig issue for almost ten years. If there were so many feral swine out there we'd have a bunch hanging from buck poles every year. I cancelled my MUCC magazine due to there support of this terribly written law.


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## twodogsphil (Apr 16, 2002)

*"It's unfortunate the court's ruling did not recognize the threat posed by Russian boars and the damage these animals can do to Michigan's natural and agricultural resources," said DNR spokesperson Ed GOLDER in a statement*. 

So Mr. Golder, then why didn't MDNR's ISO address "Russian boars" instead of all Michigan pigs???


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## Robert Holmes (Oct 13, 2008)

Do you think at $450 to $750 each the people who manage high fence hunting want their prize pigs running around outside of the fence? The DNR is just after them because people can hunt there and they don't contribute to the DNR. I would say if the DNR wants their money so bad then they need to do a better job of wildlife management. The DNR invests way too much of our license money on non game wildlife management. As of the last 10 or 15 years hunting and wildlife management has become very competitive. THe DNR needs to be more competitive that is all.


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## bowhunter42 (Aug 22, 2012)

Get rid of the dnr..
They've shown over and over how well they mismanage.

Sent from my SM-G730V using Ohub Campfire mobile app


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## dawgball (Sep 15, 2007)

bowhunter42 said:


> Get rid of the dnr..
> They've shown over and over how well they mismanage.
> 
> Sent from my SM-G730V using Ohub Campfire mobile app




Haha I dont now about that... But they could use one hella makeover!


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