Turunen v. Dir. of the Dep't of Natural Res.

336 Mich.App. 468

971 N.W.2d 20

Roger TURUNEN, doing business as Hogan Land Improvement Company, Plaintiff/Cross-Defendant-Appellee,

v.DIRECTOR OF the DEPARTMENT OF NATURAL RESOURCES and Department of Natural Resources, Defendants/Cross-Plaintiffs-Appellants.

No. 350913

Court of Appeals of Michigan.

Submitted March 2, 2021, at Lansing.

Decided March 18, 2021, 9:05 a.m.

O'Leary Law Office (by Joseph P. O'Leary, Lanse) and Bensinger, Cotant & Menkes, PC, Marquette (by Glenn W. Smith ) for plaintiff.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Danielle Allison-Yokom and Kelly M. Drake, Assistant Attorneys General, for defendants.

Before: Murray, C.J., and M. J. Kelly and Rick, JJ.

Murray, C.J.

The legal battle over whether plaintiff's pigs were unlawful under the Department of Natural Resource's Invasive Species Order Amendment 1 (ISO) has been a long and contentious one, and it is now before this Court for a fifth time. On two prior occasions, this Court issued opinions on the merits, see Johnson v. Dep't of Natural Resources , 310 Mich. App. 635, 873 N.W.2d 842 (2015), and Turunen v. Dep't of Natural Resources , unpublished per curiam opinion of the Court of Appeals, issued July 5, 2018 (Docket No. 336075, 2018 WL 3309580 ) ( Turunen I ), while on two other occasions the Court turned down requests for interlocutory review. See Turunen v. Dep't of Natural Resources Dir. , unpublished order of the Court of Appeals, entered December 6, 2013 (Docket No. 317933), and Turunen v. Dep't of Natural Resources Dir. , unpublished order of the Court of Appeals, entered September 12, 2016 (Docket No. 332811). With this appeal, we are provided the opportunity to review the final judgment entered in plaintiff's favor after a bench trial, in which the trial court held that the eight pigs at issue—which were all dead before trial—were not unlawful. We affirm that decision. We do, however, reverse the decision of the trial court holding that the ISO was unconstitutionally vague as applied.

I. BACKGROUND

The background facts are succinctly stated in this Court's opinion in Turunen I , unpub. op. at 2-3:

In 2010, the Department of Natural Resources (DNR) issued ISO Amendment 1, which "add[ed] Russian wild boar and their hybrids to the list of Michigan's invasive species." Johnson , 310 Mich. App. at 643 . The amended ISO provided in pertinent part that:

Possession of the following live species, including a hybrid or genetic variant of the species, an egg or offspring of the species or of a hybrid or genetically engineered variant, is prohibited:

* * *

(b) Wild boar, wild hog, wild swine, feral pig, feral hog, feral swine, Old world swine, razorback, [E]urasian wild boar, Russian wild boar (Sus scrofa Linnaeus). This subsection does not and is not intended to affect sus domestica involved in domestic hog production. [§ 40.4(1)(b).]

Under part 413 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.41301 et seq. , a person may not possess, sell, or introduce a prohibited species. MCL 324.41303 ; MCL 324.41306 ; MCL 324.41309. Defendants offered training on how to distinguish Sus scrofa from Sus domestica from Dr. John Mayer, an internationally known biologist, to their personnel as well as local animal owners. That training taught them how to identify the animals by genotype ("the unique genetic make-up of a species") and phenotype ("the expression of those genes, which results in specific physical, biochemical, or behavioral characteristics"). Defendants issued a declaratory ruling (DR), which it later rescinded, that listed eight phenotypes for identifying Sus scrofa modeled after Dr. Mayer's training.³ Despite its rescission of the DR, defendants continued to refer to those phenotypes as a guide for identification.

On February 21, 2012, plaintiff [Roger Turunen] filed a Complaint for Declaratory Ruling and Injunctive Relief for the court to determine the applicability of the ISO to his animals. On March 26, 2012, defendants filed a counterclaim for declaratory and injunctive relief alleging that plaintiff was required to abate the public nuisance of owning Russian Boar. Plaintiff's case was later consolidated with the cases of other plaintiffs challenging the DR and ISO, and in March 2014, the Marquette circuit court granted them summary disposition as to their claims that the ISO violated the equal protection and due process clauses, and was void for vagueness. This Court, in Johnson v. Dep't of Natural Res[ources , 310 Mich. App. 635, 873 N.W.2d 842], disagreed and found the ISO constitutional. The plaintiffs’ cases were remanded to their home circuit courts. On remand, defendants conducted inspections of plaintiff's hogs on December 18, 2015, and September 28, 2016. Defendants motioned the court to enter an order for voluntary dismissal of their counterclaim after defendants found no Russian wild boar at plaintiff's facility in December 2015. That motion was denied. The circuit court determined that Johnson v. Dep't of Natural Res[ources] , 310 Mich. App. 635 , rendered plaintiff's 2012 complaint allegations regarding the ISO's constitutionality moot, but found that the allegations in defendants’ March 2012 counterclaim were still viable.

In September 2016, the defendants conducted an inspection, and identified eight pigs they believed were either Russian wild boar or hybrids thereof. The case continued to a bench trial where the issue before the court became whether plaintiff's eight animals were properly classified by defendants as being prohibited under the ISO. [Some alterations in original.]

³ The sum of those characteristics were: 1) an arched dorsal profile or arched back; 2) front shoulders that were larger than the hind quarters; 3) darker colored fur toward the hooves; 4) "dark brown to blackish in color, sometimes gray" fur with "light tipped bristles;" 5) erect ears and a straight tail that were both darker at the tips; 6) a facial mask that appeared as a light-colored beard; 7) more slender from a frontal profile with eyes that appeared more on the side of their head; and 8) an elongated rostrum or nose.

A trial was conducted on the DNR's¹ counterclaim. Each side presented witnesses and expert witnesses on whether the eight pigs were unlawful under the ISO. The DNR presented the expert testimony of DNR wildlife specialists Duane Etter and Brian Roell (a point person in Michigan for feral swine and Sus scrofa), and Michigan State University associate professor Dr. Juan Steibel, who specializes in genetics and animal breeding. Plaintiff offered his own testimony, as well as that of Shannon Hanna, a DNR wildlife division supervisor involved in implementing the ISO in 2011–2012, as well as several individuals—Chris Helpin, veterinarian Donald Martinson, and Kevin Kirk—who have extensive familiarity with plaintiff's operations and pigs.

On November 22, 2016, the trial court issued an opinion and order containing the following findings of fact:

1. In December of 2010, the MDNR issued [the ISO], adding Sus scrofa Linnaeus to Michigan's list of invasive species.

2. The ISO was issued pursuant to authority conferred upon the MDNR by virtue of the provisions of The Natural Resources and Environmental Protection Act (NREPA), MCL 324.40101, et seq. 3. Common names that have been given to Sus scrofa include wild boar, wild hog, feral swine, feral pig, feral hog, Old world swine, razorback, [E]urasian wild boar and Russian boar.

4. In order to assist in identifying animals prohibited by the ISO, the MDNR sought input from Dr. John J. Mayer, a recognized expert in wild hogs.

5. As a result of its contacts with Dr. Mayer, the MDNR issued a declaratory ruling to assist members of the public in identifying illegal animals (Sus scrofa and hybrids) and to inform the public of the factors which would be utilized by the MDNR to identify Sus scrofa and Sus scrofa hybrids.

6. Because research is not sufficiently advanced, genetic testing is not yet able to differentiate between the two (2) species of pigs and their hybrids. The MDNR, therefore, is required to utilize morphology in an attempt to identify members of the prohibited species and their hybrids.

7. Although rescinded, the MDNR continues to utilize the points set forth in the declaratory ruling to identify pigs which it deems prohibited by the ISO....

8. Included in those traits that the MDNR deems indicative of Sus scrofa are: Body type and shape, arched dorsal profile, larger front shoulders compared to hind quarter, more slender than domestic animals, fully furred, light-tipped bristles, usually dark brown to black or gray in color, facial masks, elongated (not dish faced) rostrums, straight tail and ear, lighter-colored underfur, dark point coloration, eyes set to side of head, dorsal mane, grizzled coat and more slender than domestic animals.

9. Pure unhybridized populations of Eurasian/Russian wild boar probably no longer exist in this country....

10. Some characteristics of Russian boar are shared by domestic pigs; nonetheless, if a pig exhibits only one (1) characteristic of a Russian boar it can be classified as a Russian boar.

11. To date, a pig has not been ordered "depopulated" if it exhibited only one (1) trait of a Russian boar.

12. Characteristics of Russian boar are difficult to ascertain. For example, split tips can give the appearance of light-tipped bristles, and split tips exist in domestic swine. Observer designations of pelage can be subject to debate....

13. Environment, nutrition, gender and age can affect a pig's phenotype.

14. There are many morphological similarities amongst domestic breeds, feral pigs, [E]urasian wild boar and some heritage breeds which make distinguishing them from one another difficult and problematic....

15. A feral pig may be a domestic pig living in the wild.

16. The identification of completely reliable characteristics for feral hogs, [E]urasian wild boar and hybrids between the two has yet to be

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