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Johnson v. Dep’t of Natural Resources
Case Brief Instructions
Please note that, unlike the case you have been assigned, the cases in the text have
been stripped down to a fundamental legal issue related to the chapter of study and do
not contain much of the procedural aspects you may find in your case.
DECIDE ON A FORMAT AND STICK TO IT: Structure is essential to a good brief. It
enables you to arrange systematically the related parts that are scattered throughout
most cases, thus making manageable and understandable what might otherwise seem
to be an endless and unfathomable sea of information. There are, of course, an
unlimited number of formats that can be utilized. However, it is best to find one that suits
your needs and stick to it. Consistency breeds both efficiency and the security that
when called upon you will know where to look in your brief for the information you are
asked to give. Be mindful that the operative word is “brief”; ideally the case brief should
be about one page in length and never over two pages.
Nevertheless, it is important that a brief contain the following:
TITLE AND VENUE: Identify the case name and citation in the correct format.
RULE OF LAW: A statement of the general principle of law that the case illustrates in
the form of a statement.
Determining the rule of law of a case is a procedure similar to determining the issue of
the case. Avoid being fooled by red herrings; there may be a few rules of law mentioned
in the case excerpt, but usually only one is the rule with which the judges are most
concerned. The techniques used to locate the issue, described below, may also be
utilized to find the rule of law.
FACTS: A synopsis of only the essential relevant facts of the case, i.e. those bearing
upon or leading up to the issue. The facts entry should be a short statement of the
events that led one party to initiate legal proceedings against another in the first place.
While some cases conveniently state the salient facts at the beginning of the decision,
in other instances they will have to be culled from hiding places throughout the text,
even from concurring and dissenting opinions. Some of the “facts” will often be in
dispute and should be so noted. Conflicting evidence may be briefly pointed up. It is
impossible to tell what is relevant until the entire case is read, as the ultimate
determination of the rights and liabilities of the parties may turn on something buried
deep in the opinion. The facts entry should seldom be longer than five sentences.
ISSUE: A statement of the general legal question answered by or illustrated in the case
(Do not attempt to delve into procedural issues; just focus on the substantive legal
issue). For clarity, the issue is best put in the form of a question capable of a yes or no
answer. In reality, the issue is simply the Concise Rule of Law put in the form of a
question.
The major problem presented in discerning what is the issue in the case is that an
opinion usually purports to raise and answer several questions. However, except for
rare cases, only one such question is really the issue in the case. Collateral issues not
necessary to the resolution of the matter in controversy are handled by the court by
language known as obiter dictum or merely dictum. While dicta may be included later in
the brief, it has no place under the issue heading.
To find the issue, the student again asks who wants what and then goes on to ask why
did that party succeed or fail in getting it. Once this is determined, the “why” should be
turned into a question.
Since many issues are resolved by a court in coming to a final disposition of a case, you
should focus on the portion of the opinion containing the issue or issues most relevant
to the area of law under scrutiny. A noted law professor gave this advice: “Look at the
case key or head notes”. It is also most important to remember to read the key or head
notes at the beginning of a case to determine what the editors of the case reporter have
gleaned from it.
OPINION AND DECISION: This section should succinctly explain the rationale of the
court in arriving at its decision. In capsulizing the reasoning of the court, it should
always include an application of the general rule or rules of law to the specific facts of
the case. Hidden justifications come to light in this entry; the reasons for the state of the
law, the public policies, the biases and prejudices, those considerations that influence
the justices’ thinking and, ultimately, the outcome of the case. At the end, there should
be a short indication of the disposition or procedural resolution of the case. You may
wish to put this portion of the brief in outline form.
USE OF PRECEDENT: You should relate how the rule of law discernible from this case
compares with that derived from earlier and later cases. Where does this case fit in the
series of cases which has shaped the relevant portion of the law?
EFFECT ON BUSINESS AND SOCIETY: You should briefly summarize the impact and
effect that the ruling in the case will have on business and society.
REMEMBER THAT THE OPERATIVE WORD IS “BRIEF”.
310 Mich.App. 635
Court of Appeals of Michigan.
JOHNSON
v.
DEP’T OF NATURAL RESOURCES.
Tingstad
v.
Dep’t of Natural Resources.
Turunen
v.
Dep’t of Natural Resources.
Docket Nos. 321337, 321338, 321339.
Submitted May 12, 2015, at Marquette.Decided June 2, 2015, at 9:00 a.m.
Synopsis
Background: Owners of Russian boars brought action, challenging Department
of Natural Resources’ (DNR) invasive species order, adding Russian wild boar and their hybrids to
the list of Michigan’s invasive species. The Marquette Circuit Court, Thomas L. Solka, J., granted
owners’ summary disposition motion in part, and DNR appealed.
Holdings: The Court of Appeals, Gleicher, P.J. held that:
1 DNR’s invasive species order did not violate equal protection;
2 DNR’s invasive species order did not violate substantive due process; and
3 DNR’s order was not void for vagueness.
Affirmed in part, reversed in part, and remanded.
West Headnotes (12)Collapse West Headnotes
Change View
1Constitutional Law
Other particular issues and applications
As a regulatory action that did not implicate fundamental rights, Department of Natural Resources’
(DNR) invasive species order, adding Russian wild boar and their hybrids to the list of Michigan’s
invasive species, was subject to rational-basis review, and therefore, it needed only to be rationally
related to a legitimate government purpose to survive boar owners’ equal protection
challenge. U.S.C.A. Const.Amend. 14.
2Constitutional Law
Equal protection
Constitutional Law
Equal protection
Department of Natural Resources’ (DNR) invasive species order, adding Russian wild boar and
their hybrids to the list of Michigan’s invasive species, bore presumption of constitutionality, and boar
owners challenging order on equal protection grounds bore a heavy burden of rebutting that
presumption. U.S.C.A. Const.Amend. 14.
3Constitutional Law
Statutes and other written regulations and rules
Constitutional Law
Reasonableness, rationality, and relationship to object
Only in rare and exceptional cases will rational-basis review result in invalidating a law on equal
protection or due process grounds. U.S.C.A. Const.Amend. 14.
4Constitutional Law
Other particular issues and applications
Environmental Law
“Taking” or harming wildlife
Department of Natural Resources’ (DNR) invasive species order, adding Russian wild boar and
their hybrids to the list of Michigan’s invasive species, did not violate equal protection; domestic pigs
did not cause the vexing environmental problems created by their boar cousins, DNR’s decision to
ban Russian wild boar advanced the DNR’s legitimate objective of preventing any augmentation of
the present wild pig population, fact that the DNR had chosen to ban possession of certain pigs and
not others embodied a reasonable exercise of discretion, and DNR did not arbitrarily or capriciously
classify wild Russian boars as an invasive species harboring the capacity to harm natural and
agricultural resources. U.S.C.A. Const.Amend. 14.
5Constitutional Law
Environment and Health
When applying the highly deferential review afforded to environmental regulations, courts must
uphold a classification against an equal protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification. U.S.C.A. Const.Amend. 14.
6Constitutional Law
Statutes and other written regulations and rules
In general, the equal protection clause is satisfied so long as there is a plausible policy reason for
the classification, the legislative facts on which the classification is apparently based rationally may
have been considered to be true by the governmental decisionmaker, and the relationship of the
classification to its goal is not so attenuated as to render the distinction arbitrary or
irrational. U.S.C.A. Const.Amend. 14.
7Constitutional Law
Perfect, exact, or complete equality or uniformity
Classification, challenged on equal protection grounds, does not fail rational-basis review because it
is not made with mathematical nicety or because in practice it results in some inequality. U.S.C.A.
Const.Amend. 14.
8Constitutional Law
Fence and stock laws
Environmental Law
“Taking” or harming wildlife
Department of Natural Resources’ (DNR) invasive species order, adding Russian wild boar and
their hybrids to the list of Michigan’s invasive species, did not violate substantive due process; pigs
identified in the order, wild boar, wild hog, wild swine, feral pig, feral hog, feral swine, Old world
swine, razorback, Eurasian wild boar, and Russian wild boar and their hybrids or genetic variants,
posed serious threat to Michigan’s farming industry and natural resources, the decision to classify
Russian wild boar as invasive species was neither arbitrary nor capricious, and order bore rational
relationship to the DNR’s interest in protecting the environment from the perils posed by escaped
Russian boars. U.S.C.A. Const.Amend. 14.
9Constitutional Law
Animals and plants, regulation of
Environmental Law
“Taking” or harming wildlife
Department of Natural Resources’ (DNR) invasive species order, adding Russian wild boar and
their hybrids to the list of Michigan’s invasive species, was not void for vagueness; lines drawn in the
order between protected and prohibited pigs were neither elusive nor uncertain, and sufficed to
provide fair notice to swine owners of ordinary intelligence.
1 Case that cites this headnote
10Constitutional Law
Vagueness as to Covered Conduct or Standards of Enforcement; Offenses and Penalties
Void-for-vagueness tenets embrace the principle that a law is unconstitutional if its prohibitions are
not clearly defined.
11Constitutional Law
Statutes
To give fair notice, a statute must give a person of ordinary intelligence a reasonable opportunity to
know what is prohibited or required; it may not use terms that require persons of common
intelligence to guess at their meaning and differ as to their application.
12Constitutional Law
Statutes in general
Statute is sufficiently definite if its meaning can be fairly ascertained by reference to judicial
interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of
words.
Attorneys and Law Firms
**844 Bensinger, Cotant & Menkes, PC, Marquette (by Glenn W. Smith), and O’Leary Law Office,
Lanse (by Joseph P. O’Leary) for plaintiffs.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief
Legal Counsel, and Danielle Allison–Yokom, Kelly M. Drake, and Pamela J. Stevenson, Assistant
Attorneys General, for defendants.
Varnum LLP (by Stephen F. MacGuidwin and Aaron M. Phelps, Grand Rapids) for Michigan Pork
Producers Association, Michigan Agri–Business Association, Michigan Wildlife Conservancy,
Michigan Audubon Society, Michigan United Conservation Clubs, Michigan Corn Growers
Association, Michigan Allied Poultry Industries, Michigan Soybean Association, Greenstone Farm
Credit Services, Inc., Michigan Milk Producers Association, Potato Growers of Michigan, Inc., and
Michigan Farm Bureau.
Before: GLEICHER, P.J., and KIRSTEN FRANK KELLY and SERVITTO, JJ.
Opinion
GLEICHER, P.J.
*638 First published in 1905, Pigs is Pigs, by Ellis Parker Butler, tells the story of a railroad agent
who insisted on charging the “ livestock” rate for a shipment of two guinea pigs, rather than the lower
rate applicable to domestic pets. Butler, Pigs Is Pigs (Colver Publishing House, 1905), pp. 5–6.
“Rules is rules,” the agent announced, and “[t]h’ nationality of the pig creates no differentiality in the
rate … !” Id. at 4, 7. The man who had ordered the guinea pigs refused to be bullied by the
bureaucratic agent. Rather than pay a rate he viewed as exorbitant (30 cents a guinea pig),
the *639 buyer left the creatures at the station. Id. at 8–9. Within weeks, two guinea pigs became
hundreds. The chastened agent announced, “Rules may be rules,” but henceforth, “pigs is
pets.” Id. at 36.
This case presents a 21st century pig/rule problem. The Michigan Department
of Natural Resources (DNR) has declared the wild Russian boar an invasive species subject to
“dispossession.” Plaintiffs own hundreds of Russian boars, which they breed on ranches and offer as
targets for hunters. “Rules may be rules,” the owners insist, but despite their pigs’ “nationality,” the
targeted swine are domestic and not wild, and therefore are not an invasive species. Furthermore,
plaintiffs argue, the DNR’s order is void for vagueness and violates the Equal Protection and Due
Process Clauses.
The circuit court rejected plaintiffs’ vagueness challenge, but concluded that the DNR’s order
banning the boars ran afoul of the Equal Protection and Due Process Clauses because it lacked “the
standards for a reasonable and rational classification” scheme. Plaintiffs’ pigs, the circuit court
further determined, are “hybrid” domestic swine rather than wild and invasive pests.
**845 The rules governing our review of this dispute command us to afford great deference to the
DNR’s method of delineating a particular invasive species. The classification at issue may be
imperfect, but it is neither unconstitutionally vague nor irrational. We reverse the circuit court’s equal
protection and due process rulings, dissolve the injunction it imposed, and affirm that the invasive
species order possesses sufficient clarity to pass constitutional muster.
I. BACKGROUND FACTS AND PROCEEDINGS
Plaintiff Greg Johnson owns Bear Mountain, L.L.C., a hunting ranch where customers pay a fee
to *640 “harvest” Russian boars and other animals. Russian boars are not native to Michigan.
According to the DNR, the wild boars now roaming throughout the state (or their boar ancestors)
escaped from hunting ranches. Johnson purchased his initial stock of boars from a seller in
Canada. His importation permit, issued by the United States Department of Agriculture, specifically
labeled the animals as “Wild Boar.” Johnsonhas also obtained boars from plaintiff Roger Turunen,
who raises “swine, primarily of the Russian boar breed for sale to game ranches throughout
Michigan.” Plaintiff Tingstad purchased two pigs from Turunen. He named them “Gretchen” and
“Princess Goreya,” and attested that he “developed a strong affection for these pigs,” which he
described as “members of my family.” Sadly, both of Tingstad’s pet boars are now deceased.
Unlike Gretchen and Princess Goreya, the majority of Russian boars are not lovable pets. Across
the United States, large numbers have escaped from hunting ranches and entered the wild, leaving
behind a trail of environmental destruction. According to the United States Department of
Agriculture, “[t]he rooting and wallowing activities” of escaped boars and their multitudinous offspring
“cause serious erosion to river banks and areas along streams. These destructive animals have
been known to tear through livestock and game fences and consume animal feed, minerals, and
protein supplements.” Feral pigs “feast on field crops such as corn, milo, rice, watermelon, peanuts,
hay, turf and wheat,” and “will prey upon young livestock and other small animals.” United States
Department of Agriculture Animal and Plant Health Inspection Service, Feral/Wild Pigs: Potential
Problems for Farmers and Hunters, Agriculture Information Bulletin No. 799, available at *641 << https://www.aphis.usda.gov/publications/wildlife_damage/content/printable_version/feral% 20pigs.pdf>> (accessed May 20, 2015) [http://perma.cc/F5QS–8QH7].
Michigan’s DNR concurs. The page of its website discussing wild pigs recites that “[f]eral swine are a
problem for two main reasons—they can host many parasites and diseases that threaten humans,
domestic livestock and wildlife; and they can cause extensive damage to forests, agricultural lands
and Michigan’s water resources.” Michigan Department of Natural Resources, Feral Swine in
Michigan—A Growing Problem, available at << http://www.michigan.gov/dnr/0,1607,7–153– 10370_12145_55230–230062—,00.html>> (accessed May 20, 2015) [http://perma.cc/JM8G–
WC5A]. According to the DNR, “[b]y the end of 2011, more than 340 feral swine had been spotted in
72 of Michigan’s 83 counties, and 286 [had] been reported killed. A sow can have two litters a year
of four to six piglets. Based on their prolific breeding practices, it is estimated that feral swine in
Michigan currently could number between 1,000 and 3,000.” Id.
**846 Michigan is not the only state plagued with wild pigs. “The 2.6 million pigs in Texas cause
$500 million in damage each year—a liability of $200 per pig.” Nordrum, Can Wild Pigs Ravaging the
U.S. be Stopped?, Sci. Am., October 21, 2014, available at << http://www.scientificamerican.com.proxy.tamuc.edu/article/can-wild-pigs-ravaging-the-u-s-bestopped/>> (accessed May 20, 2015) [http://perma.cc/S2R6–ZELQ]. Florida’s feral hog population,
estimated at between 500,000 and one million animals, is second only to that of Texas. 2012 Annual
State Summary Report of the Wild Hog Working Group, Southeastern Association of Fish and
Wildlife Agencies (SEAFWA), p. 24, available at *642 << http://www.agfc.com/species/documents/2012annualstatesummaryreporthog.pdf>> (accessed May
20, 2015) [http://perma.cc/2QZB–UJ7X]. The SEAFWA Wild Hog Working Group characterizes feral
swine as “highly mobile disease reservoirs” that “can carry at least 30 important viral and bacterial
diseases, and a minimum of 37 parasites that affect people, pets, livestock, or wildlife.” Id. at 51. In a
video presentation posted on the Michigan DNR website titled, “A Pickup Load of Pigs: The Feral
Swine Pandemic,” Part 1, Dr. Michael Bodenchuk, Texas State Director of Wildlife Services,
observes: “In Texas, we say that any fence that will hold water will hold hogs. Fences may be hog
resistant but they are not hog proof and eventually hogs will be able to breach any fence.” Available
at << http://www.michigan.gov/dnr/0,1607,7–153–10370_12145_55230–251114—,00.html>>
(accessed May 20, 2015) [http://perma.cc/32BD–WKRD].
Closer to home, in 2002, Baraga County Prosecuting Attorney, Joseph P. O’Leary, implored
Governor John Engler to motivate “appropriate state agencies” to take action against wild Russian
boars that had escaped from a local “game preserve.” According to O’Leary, the “strong, fast,
intelligent, large (300+ pounds)” boars “will eat just about anything,” and posed “a serious threat to
humans.” The letter closed:
You should also be aware that I am advising property owners on the Point Abbaye Peninsula that
they do not have to sit idly by while their property is destroyed and their lives or their children’s lives
are threa …
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