Michigan DNR order threatens heritage swine farmers

[Guest guest]

This is an emotional argument; nonetheless, I think it's worth

consideration. Heritage animals should be protected, in my opinion, not

eliminated. -ne

Michigan DNR Going Hog Wild

By Pete Kennedy, Esq. | March 15, 2012

In a brazen power grab threatening the livelihood of hundreds of small

farmers, the Michigan Department of Natural Resources (DNR) is using the

state Invasive Species Act to expand its jurisdiction beyond hunting and

fishing to farming operations. On April 1, 2012 an Invasive Species

Order (ISO) that DNR issued in December 2010 prohibiting the possession

of a number of different types breeds of swine will go into effect.

The order allows DNR to seize and destroy heritage breeds of pigs that

farmers are raising; and DNR will not compensate farmers whose pigs are

destroyed. In the logic of the department, “Indemnification in

[Michigan] statute is for livestock and invasive species are not

livestock, and are therefore, not eligible for indemnification.” [1]

With the order taking effect in less than a month, four different

lawsuits have been filed recently in Baraga, Gogebic, Marquette and

Missaukee Counties to stop the implementation of the ISO. The farmer who

filed the lawsuit in Missaukee County is Mark Baker, a retired Air Force

veteran who raises the heritage breed Mangalitsa pigs on his farm in

n, Baker's Green Acres. In the words of Baker's state Senator

Darwin Booher, " When Mark Baker retired from the Air Force after

protecting our nation for 20 years, he never thought he would be

fighting his own state government to protect his family's livelihood.

Unfortunately, that is what is happening now " [2, para. 1]. ph

O'Leary, an attorney in Baraga, is representing Baker. ph O'Leary,

an attorney in Baraga, is representing Baker; he filed Baker's complaint

on February 24, 2012.

The Invasive Species Act gives DNR the discretion to add or delete from

a list of species whose possession is prohibited. In addition, if either

DNR or the Michigan Department of Agriculture and Rural Development

(MDA) determines that certain requirements are met for a particular

species, then it is mandatory that an ISO be issued prohibiting that

species. DNR has not made it clear whether the ISO for swine was

discretionary or mandatory.

There are two political agendas at work here. According to Baker’s

complaint, DNR has tried unsuccessfully for many years to have the

legislature eliminate hunting estates and preserves. In these

facilities, privately owned pigs and other animals live in a contained

natural environment where customers pay for a chance to hunt and harvest

these animals. DNR earns revenue from fees paid by those hunting on

public lands; getting rid of private hunting preserves would increase

the department’s income.

…it is certain only that swine raised in confinement facilities would be

exempt from the ISO. For the confinement operations, the ISO could

effectively reduce or eliminate the competition.

The other agenda at work is that of the Michigan Pork Producers

Association who has publicly supported the ISO. In a February 27

editorial published in the Manistee Advocate newspaper, Senator Booher

mentioned, “The small farmers I have talked to wonder why the DNR is

singling out their pigs and is joining forces with the Michigan Pork

Producers Association on this issue. They believe the association wants

all pigs to be raised in confinement facilities, and the best way to

achieve that is to make it illegal to raise certain swine, especially

those offering alternatives to the white pork raised in confinement” [2,

para. 9]. At this time it is certain only that swine raised in

confinement facilities would be exempt from the ISO. For the confinement

operations, the ISO could effectively reduce or eliminate the competition.

MDA has been silent on the swine ISO. This is an agricultural issue that

has the potential to affect hundreds of farms raising heritage breed

pigs; why is the department allowing DNR to occupy its turf? As Senator

Booher pointed out in his editorial, DNR is charged with management of

game and wildlife owned by the public—not the regulation of

privately-owned animals [2, para. 11].

The 2010 ISO states:

Possession of the following live species, including a hybrid or

genetic variation of the species, an egg or offspring of the species or

of a hybrid or genetically engineered variant, is prohibited; . . . .

( Wild boar, wild hog, wild swine, feral pig, feral hog, feral swine,

Old world swine, razorback, eurasian 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.” [3, § 40.4]

Baker’s complaint notes that “close examination of the wording of the

ISO reveals that it outlaws the entire pig species, then makes an

exception for pigs involved in ‘domestic hog production.’ Linnaeus is a

reference to Carl Linnaeus, the 18th century biologist who created the

modern day system of biological classification. Sus Scrofa and sus

domestica are different names for the exact same species. They are

capable of interbreeding and having fertile offspring. ‘Wild boar, wild

hog, wild swine, feral pig, feral hog, feral swine, Old world swine,

razorback, eurasian wild boar, Russian wild boar’ are nicknames given to

various breeds of pig which the ISO lumps together collectively under

the term Sus scrofa Linnaeus. They do not denote distinct or different

species of pigs” [4, #22].

The term “Domestic hog production” is not defined in the ISO, or

anywhere in Michigan law. The state Animal Industry Act (AIA) defines

“domestic animal” as “those species of animals that live under the

husbandry of humans” [4, #24]. The AIA defines feral swine as any who

“have lived their life or any part of their life as free roaming or not

under the husbandry of humans” [4, #26]. (Baker has never had one of his

Mangalitsa pigs escape and become feral). Instead of basing its

classification of prohibited species on this or a similar definition,

DNR stated in a December 2011 Declaratory Ruling on the ISO that its

intent was to identify which animals were prohibited by eight physical

characteristics (listed in the ruling) and a ninth characteristic

consisting of “characteristics not currently known to” DNR [5, p.4].

Instead of making a public pronouncement on how the ISO will be

implemented and how it will determine which swine will be prohibited,

DNR is giving answers to those questions on an individual basis telling

farmers to bring pictures of their pigs.

The characteristics include ones involving underbelly fur, tail

structure, ear structure and skeletal appearance. Many of the eight

characteristics are shared by pigs used in factory style pork

production--pigs that are not prohibited under the ISO. Baker’s pigs

also have a number of characteristics listed in the ISO. As pointed out

in the farmer’s complaint, “There is nothing inherently vicious or

unhealthy about the breeds of pigs targeted by the ISO. Any pig, whether

used in ‘domestic hog production’ or not, will exhibit the same

problematic behaviors if allowed to become feral, that is, to live

outside the husbandry of humans. It is the state of being feral which

causes the problems identified by the DNR in the ISO and declaratory

ruling, not any particular breed of pig” [4, #32].

With the ISO scheduled to go into effect next month, it is still unclear

how DNR plans to determine which swine are illegal to own under the ISO.

At a meeting for swine owners called by the DNR on February 1, “DNR

staff members, accompanied by DNR officers bearing firearms and taser

weapons, refused to answer” questions in front of the entire group

attending the meeting, only answering questions on a one-on-one basis

[4, #33]. This way of providing answers has frustrated groups like the

Michigan Animal Farmers Association (MAFA); in a February 8 letter to

DNR Director Rodney Stokes, members of MAFA pointed out that the

“procedure [used in the February 1 meeting] guaranteed that there would

be no uniform understanding of the MDNR position and that our confusion

over the ISO would continue” [6].

Instead of making a public pronouncement on how the ISO will be

implemented and how it will determine which swine will be prohibited,

DNR is giving answers to those questions on an individual basis telling

farmers to bring pictures of their pigs. This sets up the daunting

prospect of the DNR granting approval to each hog on every farm in

Michigan on a one-by-one basis. Answers the department has provided to

those seeking its opinion have been inconsistent as to what constitutes

prohibited swine.

One thing Stokes did make clear in a letter to MAFA was that once the

ISO takes effect, “DNR will use existing information that it possesses

to determine which facilities are most likely to contain multiple Sus

scrofa Linnaeus and therefore should be inspected on a priority basis,

for prohibited swine.” [7, para. 2]

The farmer says that the ISO is a swipe at the local food movement and

warns that government agencies in other states as well as the National

Pork Producers Association are watching what happens in Michigan with an

eye to taking similar action elsewhere.

Senator Booher and others in the legislature have asked Stokes on

numerous occasions to either rescind the ISO or revise it “to apply only

to pigs running wild outside a fence” [2, para.12]. The DNR director has

not responded to any of the requests.

Baker’s complaint against DNR asks the Missaukee County Circuit Court to

enjoin the department from enforcing the ISO against him or his

property. The complaint seeks various declarations from the court that

the ISO violates rights guaranteed by the U.S. and Michigan

constitutions including a declaration that the ISO constitutes an

illegal taking of Baker’s pigs and the common law trademark he has

created with his development of the Mangalitsa hybrid on his farm. There

is strong demand for Baker’s products among consumers and restaurants in

the Traverse City area. The farmer says that the ISO is a swipe at the

local food movement and warns that government agencies in other states

as well as the National Pork Producers Association are watching what

happens in Michigan with an eye to taking similar action elsewhere.

The scenario of an unaccountable bureaucracy enforcing an ambiguous

order at the expense of the property and livelihood of those providing

healthy food to their communities should not stand. The ISO is a blatant

attempt to take away property rights, freedom of food choice and market

share through the force of law.

---------------------

1. DNR Director Rodney Stokes, Letter to Rep. McBroom,

8 February 2012; 3rd para.

2. Darwin Booher, “DNR order threatens heritage swine farmers because of

how their pigs look”, The Manistee Advocate,

27 February 2012

3. Michigan Department of Natural Resources, “Invasive Species Order”, |

3 December 2010

4. Complaint filed for Baker v. Michigan DNR, 28th Circuit Court for

Missaukee County; File No. 12-8097 CZ, 24 February 2012

5. Michigan Department of Natural Resources, “Declaratory Ruling”,

13 December 2011

6. Michigan Animal Farmers Association (MAFA), Letter to DNR Director

Stokes, 8 February 2012

7. DNR Director Rodney Stokes, Letter to MAFA (Michigan Animal Farmers

Association), 17 February 2012

http://www.farmtoconsumer.org/michigan-dnr-going-hog-wild.htm