It has been fifteen months since heritage breed hog farmer Mark Baker sued the Michigan Department of Natural Resources (DNR) to stop the implementation of an invasive species order (ISO). The swine ISO supposedly targeted feral swine but could be applied to any domestic pig not raised in confinement. Baker has yet to have his day in court and it is still not settled when his trial will take place. It is common for lawsuits like this to turn into wars of attrition; the state has virtually unlimited resources while the farmers are bled of theirs over the course of the litigation.
Since April 2012, Baker has not been able to slaughter, process or sell the meat from any pigs he has raised and has not been able to sell live pigs in the state of Michigan either. Seizing an opportunity to take advantage of the farmer’s business shutting down, the Attorney General’s office recently made a “settlement offer” to Baker: The AG would not to seek penalties for the farmer’s alleged violations of the ISO if Baker would depopulate what remains of his prohibited swine. Baker’s response was one word – “NUTS!”
DNR’s “offer,” described by Baker as an ultimatum, was to not pursue civil penalties and costs of litigation if the farmer gave up his fight to overturn the swine ISO. Baker’s response was the same one that General Anthony McAuliffe gave General Heinrich Von Luttwitz at the Battle of the Bulge when the German commander requested that the American troops surrender.
The offer was made to Baker in an April 19 letter to Baker’s attorneys, Michelle Halley and Joseph O’Leary. In the letter, Assistant AGs Danielle Allison-Yokom and Kelly Drake state, “It is our position that your client is in possession of a number of swine prohibited by the Invasive Species Order . . . a person who possesses a prohibited animal is subject to a civil fine up to $10,000. It is our position that each animal constitutes a separate act for which a fine up to $10,000 is available . . . . It is also our position that the costs incurred by DNR in this matter including their attorney fees are recoverable.”
Even though the purpose of the ISO is to prevent the growth of the feral swine population in Michigan, the way DNR interprets the order any domestic pig raised in the outdoors could be prohibited under the order. In a Declaratory Ruling issued by DNR in 2011, the department declined to base its classification of prohibited swine on whether the animal was living under the husbandry of humans; instead, DNR chose to define prohibited swine based on whether the animals exhibited any of eight physical characteristics (listed in the ruling) and a ninth characteristic consisting of “characteristics not currently known to DNR.” Under the ambiguous Declaratory Ruling, a pig with a “straight tail” could be prohibited and so could a pig with a “curly tail.” Only the white pork raised in confinement would not be subject to prohibition under the ISO; the Michigan Pork Producers Association has remained a strong supporter of the swine ISO since its inception.
The ISO is a threat to genetic diversity, property rights and the ability of small farmers to make a living. Fortunately to this point, the opposition to the order is not going away; it is only increasing. Three other lawsuits filed around the same time as Baker’s by farmer Roger Turunen, game preserve operator Greg Johnson and pet pig owner Matt Tingstad are still moving through the courts. Recently, Turunen’s wife Brenda, a member of the Keweenaw Bay Indian Community in Michigan’s Upper Peninsula, filed suit in federal district court challenging the ISO on the grounds that it violated a 1842 treaty between the United States and the Lake Superior Chippewa tribe that guaranteed the tribal members’ right to farm. The lawsuit opens up a new front in the effort to overturn the ISO. This is one fight where it looks like the state will not win a war of attrition.
Baker says he is getting more support at the grassroots level throughout Michigan. People become angry once they understand that DNR can use the ISO to confiscate any domestic pig that has never been in the wild. Those wanting to give financial help to Mark Baker and his family in their battle against DNR can donate at www.bakersgreenacres.com
Those wanting to make a tax-deductible donation to go towards the Baker’s legal expenses can contact the Farm-to-Consumer Legal Defense Fund at 703-208-3276 or by email at firstname.lastname@example.org. The fight to strike down the ISO is winnable; with your help the chances of success increase.