The Place Where Ludington Talks
Michigan DNR Gone Wild: Farmer Baker Protects His Herd from the Wolves
Pork Futures
Back in April of 2012, an issue came up where the Michigan Department of Natural Resources (MI DNR) came down with some heavy edicts that affected many family farms here in Michigan. An Invasive Species Order (ISO) on various pig characteristics made several pigs, raised for slaughter on small/medium farms illegal to possess. A farmer in northwest lower Michigan (and other independent farmers) contested the decree and the eventual enforcement of it, as described originally in this thread: the-boar-war with updates in it's comments.
On Friday, July 12, 2013 this farmer, Mark Baker, faced off in a court hearing against the MI DNR. Both parties had sued each other and this was a hearing on the summary disposition asked for by the DNR in front of Honorable Judge William Fagerman. Plaintiff Baker was looking to have the judge rule that his domestic pigs should not be outlawed just because they have characteristics that the MI DNR consider them as 'feral pigs', or else to have a jury trial granted on the case. The MI DNR was hoping to have their order stand, to have the judge rule the ISO gave them the power to enforce it on the Bakers, and to also grant them up to $700,000 ($10,000 per pig) because Mark Baker's farm still had 70 'feral pigs' on its green acres.
Lawsuit: A machine which you go into as a pig and come out of as a sausage
The above definition is from Ambrose Bierce's Devil's Dictionary; one could believe Mr. Bierce's wit would have been bemused by what took place on Friday. But before the litigation of the day started, I had to get between Ludington and the Missaukee County Courthouse in Lake City. About halfway, part of my muffler descended to the pavement, and I had to do a pit stop. I hunted down some wire at the side of the road, and with my best MacGuyver skills, was able to remedy the problem for the rest of the trip. I, more noisily than usual, arrived at the courthouse just before 1:35 PM, still before the hearing scheduled for 2:00 PM.
The Missaukee Courthouse is smallish compared to Mason County, the population of the county being less than 15,000. About ten folks were lounging outside underneath a shade tree, it being a very warm (85 degrees) and sunny day. Another 50 people were hanging around the main corridor of the courthouses first floor, among these at the time was the man of the hour, Mark Baker, and his family. Mark was wearing a smart dress shirt and a confident-yet-troubled smile. There was a good range of people among the folks attending, including about ten kids.
Occasionally, groups of people come from the courtroom area over the next fifteen minutes, at which point Mr. Baker and his family move to the as yet unseen courtroom. I am approached a couple minutes later by a person who was chronicling the event with a video camera, and was asking people why they were there, and there feeling on the overall topic. For some reason, I assent to get in front of the camera and air my opinions about what I feel is an unfair, unwarranted intrusion onto the rights of a private individual by an uncaring, overreaching group of public servants. Somehow, it seemed only natural to do so. I guess any attempt to say I was unbiased going into the courtroom, would be a bit of a stretch. But until I saw the DNR attorney and their representative in the courtroom, I failed to see any DNR supporters in the area, so I wasn't alone.
The courthouse was as busy as a prosperous slaughterhouse, and more tightly packed
At 2:20 PM I manage to push myself into the courtroom, as the bailiff's seek to gain more room for the standing room only crowd that has descended on this usually quiet rural court. The place can normally accomodate up to 50 people, but every seat (including extra chairs) the jury box and two to three rows/lines of people around the court's perimeter have almost three times that many people attending. Many more are turned away at the door due to reaching 'full capacity'. Court proceeds shortly after I find a place with more elbows than elbow room.
All animals are equal, but some animals are more equal than others.
That overarching rule from George Orwell's Animal Farm (an appropriate reference fable about fascist/communist pigs taking over a farm after getting rid of the farmer) was played out in court by the MI DNR attorney; Orwellian is a fitting adjective describing a societal condition destructive to the welfare of a free and open society and perhaps the most applicable way to describe what the state's DNR is trying to accomplish with those engaged in animal husbandry for a living.
Going into this hearing, I was willing to hear the MI DNR explain exactly why they felt the invasive species order was fair and equitable policy, and how their enforcement against feral pigs raised by farmers behind fences for purposes of food production was appropriate. The nervous attorney for them, laid out their position in about 15 minutes, and all I got from it was that they wanted to claim some sort of timeliness claim on the Baker's filing, they rigidly wanted to defend their policy in their goal to rid all invasive pigs from Michigan, and that their request for $700,000 from the Baker's was lawful and appropriate, but that they would understand if the judge wanted to use his discretionary powers to reduce that amount.
Baker's attorney was up next, and conveyed her message. She defended the timeliness, noting that the enforcement of the ISO was withheld until October 2012 after it was enacted in April 2012. She cited that the $700,000 should have never been on the table and was effectively harassment, and violative of the Fourteenth Amendment. She explained that Mark's pigs were bred from Russian boars and Mangalitsa pigs, getting the winter hardiness of the former breed, and the 'good mothering' instincts from the latter. She noted that historically, only one 'feral pig' has been reported in Missaukee County and that her client had never had any pig escape.
She claimed that if a so-called invasive species is domesticated and raised in captivity, then it is technically not 'feral', but a domesticated animal. She noted that any domestic pig in Michigan would become feral if they escaped into the wild, just to survive. She claimed that living conditions of an animal determine whether it is called feral or domesticated, that if an animal is out in the wilds it is the former, raised in captivity all of its life it is the latter.
She indicated that using the DNR's characteristics as guidelines would have every single pig in the state be outlawed because even normal breeds have enough characteristics to violate the ISO. She noted these characteristics sometimes encompassed all pigs, as in a pig having either a curly or a straight tail. She undisputedly stated: "Every pig in Michigan is a decendent of the Russian wild boar/Eurasion wild boar.”
She mentioned points of legal due process were violated by the ISO. She noticed boar-hunting facilities and farms were not differentiated, even though boar hunts are traditionally the times when pigs escape and go feral. She mentioned that Mark Baker was specifically targeted by the MI DNR for his outspokenness, and the $10,000 per pig figure was not levied against other farmer's in violation, and so he was denied equal protection under the law (Fourteenth Amendment).
She mentioned that nowhere in the MI DNR orders is there a definition of 'domesticated', whether it referred to pigs or not, nor to 'domestic animal (pig) production'. She stated that the MI DNR is violating their own order that says: "This order is not intended to affect domestic hog productions".
After all this ammunition complete with a couple of exhibits, the MI DNR attorney basically fell to relying on briefs of other civil cases dealing with this topic (four others) to address their viewpoint that Mark Baker's pigs were in violation of the ISO.
These pigs of various characteristics mercilessly ran Animal Farm, and not a feral one among them
You can't make a silk purse out of a sow's ear
The DNR seemed to have not made a very compelling case and Judge Fagerman seemed to be a reasonable person. He asked both attorneys good questions regarding the points each was trying to make. At the end of the whole business, he was seemingly inclined to rule for a trial because there seemed to be an issue of material fact, as to the matter of the species of pig. Is there really any characteristic(s) that defines whether a pig, regardless of how it is raised, make it invasive or feral? Most of his questions seemed to indicate he was at the least sympathetic to the Baker's side, and most of his significant concessions went to that side.
But at the end, he decided to further review the issue and then put out a written opinion, somewhat to the chagrin of the nearby court observers. But it was probably a wise choice to do so, and only time will tell whether he makes another wise choice to defend the interests of a citizen, standing for many other citizens, or make the choice to defend the practices of a state agency that seems intent on infringing on one of our basic, unstated rights, the right to farm on one's own land, which typically one presumes is given in a system which allows private property.
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Replies to This Discussion
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Permalink Reply by Willy on
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I think a key word the DNR uses and should have been challenged by the defendant is "invasive". I looked in several dictionaries and found no definition that would relate to a domesticated animal living in captivity. In my opinion that word simply does not apply to this situation. The only time a plant, animal or organism can be considered "invasive" is if they are released in the wild and cause damage to the environment. Until that happens there is no such thing as an invasive species.
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Permalink Reply by XLFD on
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Good point, and that' exactly one of the main points that was attempted to be shown in a few different ways by the Baker's lawyer. But the DNR's version of invasive was permissively vague, and did not exclusively rule out tame pigs.
I don't like the "invasive species" term in the first place. Call it a 'weed' if it's a plant, an 'undesirable' if it's an animal, or a "public nuisance" if it's a Ludington official.
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Welcome on board, State Senator Darwin Booher, representing Mark Baker's county and others has weighed in big on this topic saying:
"Mark Baker is a fighter. He honorably fought for our country as a member of the Air Force for 20 years. Now, to keep his family farm in McBain, he’s fighting against state bureaucrats, the Attorney General and his team of taxpayer-funded attorneys who are seeking to take away this patriot’s livelihood.
The Department of Natural Resources issued an invasive species order in 2010 that arbitrarily bans select breeds of pigs. Department officials claimed the pigs must be banned because the state has a problem with feral hogs, meaning wild pigs running outside of a fence. The department makes this claim despite the fact that: 1) Mark’s pigs have been raised inside a fence their entire lives; 2) not a single Baker pig has ever escaped captivity; and 3) all pigs, no matter what the breed, are capable of becoming feral (i.e. loose).
The DNR created a list of certain subjective characteristics that pigs will be assessed by to determine if they are now an invasive species. Mark’s pigs matched some of the characteristics – characteristics that any pig would meet. And, overnight, Mark’s pigs were magically transformed into an “invasive species” despite the fact that he and his family had been raising the heritage hogs without incident since 2007 and successfully selling to high-end restaurants as his family’s primary source of income. Therefore, left with no other alternative, Mark filed a lawsuit against the DNR to try to protect his family’s livelihood.
Now, incredibly through the lawsuit that Mark filed, the department is claiming that Mark has admitted to having invasive species and should be fined $10,000 per pig – or an astounding $700,000! That is right—the state wants to fine Mark nearly three quarters of a million dollars simply because of the breed of pig that he produces on his farm.
Of course, if Mark was “just” poaching deer, he would only be subject to a $1,000 fine. If he were driving drunk, he would only be subject to a $2,000 fine. Or, heaven forbid if he were selling crack cocaine to our children, he would only face a $10,000 fine.
Instead of prohibiting all people from hunting simply because a few people choose to poach deer, or stopping all people from driving because some people do choose to drive drunk, we pass laws to clearly and specifically address those behaviors. We do not simply have some bureaucrat make a rule that prohibits hunting and driving.
Unfortunately, that is not the case for Mark Baker. The heritage pigs he raised were legal one day and not the next simply because the DNR director said so and couldn’t be bothered to simply take a bit of time to promulgate some sensible regulations to ensure pigs didn’t become feral.
Like Mark, several other operators in Michigan have also been wronged by this action and forced by the state into the same corner as Mark. Consequently, they have also, filed lawsuits to protect their businesses, their property and their livelihood. Not surprisingly, rather than allow Michigan citizens, who will serve as jurors, to decide whether the department’s actions were right or wrong, the DNR and their team of taxpayer-funded attorneys have continually sought to delay or dismiss the case.
All of the actions taken by the state—from first issuing the invasive species order, to its implementation, to the stall tactics and indefensible fines—were done because of a bureaucratic ruling, not because it was required by law. Instead of taking a common sense approach to prevent the release of feral swine, such as requiring tags on all pigs or increasing the penalties for those who purposefully release hogs or allow them to escape, the department developed this outrageous rule that targets only certain breeds.
Thankfully, it’s not too late. State officials can still do the right thing and just repeal the invasive species order. They could then work to institute common sense changes that would better address feral pigs in Michigan and not instantaneously make criminals out of law abiding citizens and take away their property and their living. As this lawsuit heads to trial, I hope the DNR, Attorney General, and Governor Snyder see how shameful this decision is and reconsider their decision and actions.
Mark Baker is a fighter, but this is not a fair fight, so I will continue to stand behind Mark and the other farmers who are fighting against this disgraceful ruling. And, I urge you to join me in that fight by calling the governor’s office (517-373-3400) and request that he join me at Mark Baker’s farm to see the issue firsthand and then work with me on a common sense solution that doesn’t put our law abiding, hardworking, small family farms out of business.
Darwin L. Booher
State Senator-35th District"
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I wasn't able to make the court date yesterday, but it was a victory of sorts for Mark Baker vs. the State. The following release is from the official site http://bakersgreenacres.com/, where it explains that the State DNR decided to back off instead of have their irrational policy be ridiculed by the court. After killing a bunch of other farmer's pigs and asking for a $7000,000 fine against a guy whose assets fall hundreds of thousands under that, the bullies saw that he wasn't backing down. The narrative starts with a brief piece about the Attorney General representative of the DNR and the shameful way he comported himself in the courtroom.
It really frosts my goat that these guys in the AGO are well-paid by our taxes, supposedly have sworn an oath to the Constitutions of the State and USA, and then get in line with defending illegal state agency activity when they try to screw over the taxpayers. I am getting some of this myself in my FOIA lawsuit against the MSP, the AG puissant threatening me repeatedly, while defending the obvious violations of the FOIA law by his client (the MSP, not us), and the court's seemingly inappropriate actions thus far. These people are out of control with power-madness, because 99% of the people roll over for them.
"...It started with meeting, at long last, Harold Martin, the Attorney General’s representative for the DNR. He refused to shake Mark’s hand in greeting. He refused to show due respect to our national flag, and went out of his way to mock the crowd for saying the pledge of allegiance and saluting the flag. He displayed unprofessional behavior by confronting, insulting, otherwise offending the peaceful folks who came to observe the legal proceedings. While this is certainly his right, it does lead people to wonder about the attorney their tax money is supporting. Let’s just say it wasn’t the best first impression we’ve ever had of someone.
The next message from Mr. Martin was that, on the basis of one pig, the DNR now feels that all our pigs are legal. Despite the fact, he stated, that our pigs are Russian Boar hybrids (clearly prohibited in the ISO) is OK with the DNR and our pigs are legal. This is a complete turnaround from everything they’ve stated to date and left our jaws on the table. However, the net result was that it gave the judge little choice but to state that there was no longer a conflict. The practical questions were still on the table, but the legal status was changed with Harry’s statement. There was no more disagreement about whether or not the Invasive Species Order applied to us—we both agreed that it should not apply. The judge chose to ignore the Declaratory Ruling, which almost perfectly describes our pigs.
This turnabout on the part of the DNR was an admission of “uncle.” Their regulation is so incredibly subjective that they could just wave a magic wand and make our pigs “legal” and so avoid explaining themselves under oath. They were desperate not to have to make their case. This eleventh hour move shows their cowardice and their bully nature.
Practically, this is what the ruling means:
1) Our pigs are “legal” and therefore we can go back to business as usual. We can take our pigs to a USDA butcher without fear of refusal due to the ISO. We can sell weaned pigs this spring and they can’t go after our customers.
2) This only applies to us, not to anyone else who wonders if their pigs are legal or not.
3) We still don’t have clarification on what a “feral pig” or “old world swine” is. We still don’t know if we are a domestic hog producer per the DNR’s legally binding subjective opinion.
4) We get no compensation of any sort for the last two and a half years worth of lost business and livelihood.
We are talking about our options. We did not give up. It was forced on us. We still do not intend to give up, to roll over, to “comply.” The other thing we know is that Truth and Life will be vindicated in the end, whatever end it may be.
Thank-you to all the dedicated Americans who have stood beside us in so many ways. Your prayers, notes, and support have brought us this far. We intend to continue to stand, in one way or another, for our collective rights to life, liberty, and the pursuit of happiness. Thank-you!"
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A victory for farmers over the insanely racist pig policies of the Michigan DNR. A Marquette County judge has sided with three U.P. Hog farms and against the State. "
TRAVERSE CITY, Mich. (AP) - A circuit judge has ruled that a Michigan ban on certain types of exotic swine breeds is unconstitutional.
In an opinion released Monday, Judge Thomas Solka of Marquette County sided with three Upper Peninsula operations that challenged an order issued in 2010 designating the swine as invasive species that would be off-limits in the state.
The order by the Department of Natural Resources targets animals commonly known as wild boars, Eurasian or Russian wild boar and razorback hogs.
Before it was issued, dozens of farms and hunting ranches across the state kept those types of swine. The DNR says they've been escaping into the wild and damaging the environment and crops.
Solka's ruling says the order is arbitrary, unreasonable and denies the hog owners equal protection under the law."
http://www.9and10news.com/story/25056716/judge-throws-out-michigan-...
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