Nearly two years ago, we asked whether it was lawful to own a pig in Michigan after a state agency issued an “Invasive Species Order”—ostensibly aimed at outlawing the ownership of “feral” pigs—but drafted so broadly and vaguely so as to cover barn-yard animals. Now we finally have an answer: it depends on whether the government decides your pigs are legal to own. Confused yet? Here’s the back-story:
The Michigan Department of Natural Resources issued an Invasive Species Order outlawing the ownership of certain types of pigs, allegedly to prevent the spread of feral swine and disease. According to a Declaratory Ruling which was supposed to clarify which pigs the Order covered, illegal pigs could be identified by characteristics such as “coat coloration,” “skeletal appearance,” “tail structure,” and “ear structure.” But illegal pigs could “exhibit either curly or straight tail structure,” and could have “either erect or folded/floppy ear structure.” And, their legality could also depend on “other characteristics not currently known” to the Department.
With stiff penalties threatened for lack of compliance—including a felony conviction, two years in jail, and $20,000 in fines—Michigan pig farmers were understandably concerned. Notably, because the Order specifically exempted the type of pigs that large-scale producers raise, the Michigan Pork Producers Association supported it. But the Order failed to exempt the heritage breeds favored by smaller producers satisfying an increasing demand from chefs and foodies for the unique flavors of heritage-breed pork.
One of those farmers, Mark Baker, filed a lawsuit challenging the Order. Baker raises a hybrid breed of Mangalitsa hog which he values for its flavorful meat and its ability to withstand Michigan’s cold winters. While his lawsuit was pending, he was unable to slaughter his pigs at USDA slaughterhouses because of the state’s alleged “feral” designation. He also had trouble getting veterinarians to sign off on the pigs’ health because they feared the state would revoke their licenses.
Finally, after two years of playing “procedural hide-and-seek” with the state’s lawyers, the court set Baker’s case for trial. But just before the trial was to begin, the state changed its position on Baker’s pigs, claiming they were suddenly “legal” and not covered by the Order. As a result, the case was moot and the judge dismissed Baker’s lawsuit. Baker and his family can now continue raising their hogs, but no one else in Michigan is any closer to understanding what exactly is a “feral” pig under the state’s definition.
This case reminds us of U.S. Supreme Court Justice Stewart Kennedy’s infamous statement, “I know it when I see it,” when it comes to obscenity unprotected by the First Amendment. Here, the Department of Natural Resources also apparently “knows a feral pig” when it sees one, but it will only tell you what it knows if you are willing to bring it to the brink of a trial. It’s a shame that people like Mark Baker, who are simply trying to earn an honest living for their families, are forced to play these types of games with government officials. It’s also disturbing that in a country that values the rule of law, people are forced to rely on government bureaucrats’ subjective opinions about whether their conduct is in fact criminal.