Diana Mulvihill/Ozy Roger Turunen smiles while discussing his hogs in March 2017 at his farm in Baraga County.

LANSING – A 2019 ruling that a Baraga County pig farmer’s pigs were lawful was upheld by the state Court of Appeals Thursday, though it reversed a circuit court ruling that found the order that they had been judged to violate was “unconstitutionally vague.”

At issue was whether the pigs owned by Roger Turunen violated a 2010 Department of Natural Resources order that listed Russian wild boar and its hybrids as an invasive species, and barred having or selling them.

Turunen filed a complaint in 2012 asking the court to determine if the order applied to his animals.

A Department of Natural Resources inspection in 2016 found eight pigs it believed to be Russian boar or hybrids. The pigs had varying numbers of characteristics in common with Russian boar. None met all criteria.

A 2016 Baraga County Circuit Court ruling found the DNR had not met the burden of proof required to prove the animals were barred by the ISO, and had not laid out a “clearly defined, explicit standard” for when a pig crosses the line to be deemed an invasive species.

Three years later, Baraga County Circuit Court found the invasive species order was unconstitutionally vague. A DNR website about the invasives used a photo of a purebred Russian boar, which the court found did not provide “fair notice as to what would necessarily constitute a prohibited pig in the eyes of the DNR.”

However, the appeals court found the ISO gave “fair or proper notice” by delineating characteristics of the banned animals.

The court also rejected Turunen’s argument of “subjective, arbitrary and discriminatory” enforcement of the ISO. It cited DNR experts who testified about their methodology, including looking for multiple characteristics of the wild boar.

“Thus, although the application of the criteria is somewhat subjective and may vary pig by pig, as applied to these pigs the standards employed by the DNR were not unconstitutionally void,” the appeals court wrote.

In determining whether the pigs were illegal, the appeals court rejected the DNR’s assertion that the court had disregarded “overwhelming evidence” of the pigs’ illegality, and did not specifically address the testimony of DNR expert witnesses.

The appeals court found the Baraga County Circuit Court applied appropriate factors in determining whether the pigs fell under the ISO, and was not obligated to explain why it did not agree with the findings of a particular witness.

The DNR also argued that the court’s finding that each pig had some Russian boar characteristics conflicted with its finding that the DNR failed to prove by preponderance of evidence the pigs were illegal. The appeals court disagreed with that argument.

“These same experts recognized that even though a pig may have characteristics of Sus scrofa, not all pigs exhibiting such traits are prohibited under the ISO,” the court wrote. “Indeed, the experts testified that they would err in favor of an owner if they could not conclusively determine that an animal was prohibited.”

None of the eight pigs are still alive. However, the appeals court determined that did not make the case moot. A decision on whether the pigs are legal, even now, would still have a practical effect on future enforcement of the order, the appeals court found.

“…[I]t is undisputed that plaintiff continues to raise and sell pigs for the main purpose that plaintiff raised and sold the eight dead ones, so even in the absence of these particular pigs, the DNR is just as able to action against plaintiff under the ISO for raising pigs similar to the ones at issue here,” the appeals court wrote.