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A Better Partnership
June 05, 2015

COA affirms constitutionality of DNR’s classification of Russian boar as an invasive species

In the consolidated cases of Johnson v. Department of Natural Resources, No. 321337, Tingstadt v. Department of Natural Resources, No. 321338, and Turunen v. Department of Natural Resources, No. 321339, the Court of Appeals held that the DNR’s invasive species order (ISO) regarding seizure of wild boar was constitutional on equal protection, due process, and vagueness grounds. The Court reversed the circuit court’s holding of unconstitutionality on equal protection and due process grounds, and dissolved the injunction prohibiting seizure of Plaintiffs’ wild Russian boar.
Plaintiffs Gregory Johnson, Matthew J. Tingstadt, and Roger Turunen raise wild Russian boar and release them for private hunters on their own hunting grounds. These boars are the same species of wild boar that have been roaming the Michigan countryside, where they have escaped similar hunting grounds and gone on to “breed vigorously, spread disease, eat crops, defecate in lakes, and generally cause ecological mayhem.” The DNR responded to the boar plague by issuing an ISO in April 2012, which empowers the DNR to seize any animals meeting the ISO’s requirements. Plaintiffs challenged the ISO because their Russian boar, although caged, met the requisite criteria for seizure.
Plaintiffs argued that the ISO violated equal protection, substantive due process rights, and was unconstitutionally vague. The circuit court agreed on the equal protection and substantive due process grounds, but found that Plaintiffs had no standing to bring a vagueness argument because they admittedly owned Russian boar, a species expressly identified in the statute. The Court of Appeals reversed on the equal protection and due process grounds.
On equal protection, the court held that the classification of Russian boar, as opposed to the domestic pig, was reasonable and rationally related to the legitimate governmental interest in protecting the environment. The court held that the ISO “easily” survives an equal protection challenge, and deferred to the DNR’s discretion. The court found similarly on the due process grounds; despite the fact that Plaintiffs’ boars were caged, their classification as an invasive species subject to seizure was rationally related to environmental concerns. The court found that the ISO gave fair notice that Russian boar, Sus scrofa Linnaeus, is an invasive species and thus survived the vagueness challenge. Therefore, the court reversed the circuit court’s order and dissolved the injunction prohibiting seizure of Plaintiffs’ pigs.

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