By JOHN FLESHER=
AP Environmental Writer
TRAVERSE CITY, Mich. (AP) – A Michigan ban on Eurasian boars and similar exotic swine breeds is unconstitutional because it denies equal protection to owners of the animals and is so vague that it’s hard to tell which the policy covers and which are exempt, a circuit judge said in a decision released Monday.
Judge Thomas Solka’s ruling applies only to sections of the Upper Peninsula that are home to three hog owners who fought the regulation, but courts elsewhere in Michigan could look to it if others challenge the ban.
Solka delayed his ruling from taking effect in expectation of an appeal by the Department of Natural Resources. Ed Golder, an agency spokesman, said it will consider appealing the ruling within the 21-day period allowed by law.
“It’s unfortunate the court’s ruling did not recognize the threat posed by Russian boar and the damage these animals can do to Michigan’s natural and agricultural resources,” Golder said.
Glen Smith, a Marquette attorney for two of the owners who sued, said they felt vindicated.
“It’s been a long battle and they’ve been very uneasy about the efforts to enforce what they’ve always perceived to be an unfair regulatory action by the DNR,” Smith said.
The rule, adopted in 2010, targets swine varieties commonly known as Eurasian or Russian boars, razorbacks or feral hogs, or hybrids exhibiting the same physical features. It labels them invasive species that are illegal to possess.
The DNR says those sharp-tusked hogs, which typically weigh 100-200 pounds but are sometimes larger, are escaping from farms and hunting ranches and damaging crops and the environment.
They are notorious for tearing up the ground when rooting for food, causing erosion and weakening plants. Their tendency to wallow in muddy shallows damages ponds and streams. The pork industry says exotic swine carry diseases that can spread to domestic livestock.
Dozens of operations in Michigan had such animals before the ban was imposed. Most have obeyed, but several filed legal challenges. A judge dismissed one suit last month after the DNR said the farmer, Mark Baker of Missaukee County, was in compliance even though Baker insisted he still possessed hybrids that could be considered off-limits under the policy.
He and others fighting the regulation say their hogs aren’t escaping and contend that the DNR is favoring domestic hog producers who don’t want competition.
Solka’s opinion pertained to lawsuits filed by Greg Johnson, who owns the Bear Mountain hunting preserve in Marquette County; Roger Turunen, who raises Russian boars in Baraga County for sale to game ranches; and Matthew Tingstad of Gogebic County, who bought two boars from Turunen to keep as family pets.
The judge affirmed the DNR’s authority to designate animals as invasive species and make it illegal to have them in the state. But he said in this case, the agency lacked a rational basis and didn’t meet equal protection and due process standards under the Michigan and U.S. constitutions.
Even the DNR’s experts acknowledged that domestic hogs also might have bodily features listed under the order as identifying invasive swine, such as coat coloration patterns and structure of ears, tails and the skeleton, the judge said.
“In short, at the risk of committing a felony, how is one to know whether a hybrid pig possessed by a farmer or game rancher … is, or is not, in violation of the (order) and the statute?” Solka said.
The policy is intended to prevent hogs from running wild, but Johnson and Turunen presented evidence showing they were keeping their animals in secure enclosures, he said.
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