A Lesson in Drafting: What Not To Do

By: Matt Hassen, Staff Member 

Since earlier this year, the Michigan Department of Natural Resources (DNR) has been enforcing an invasive species order prohibiting the possession of feral swine, among other invasive species.[1] Feral swine are problematic for two reasons according to the DNR. First, they host parasites and diseases that affect humans, livestock, and wildlife.[2] Second, they can cause damage to forests, agricultural lands, and water resources.[3] Based on sightings and reported killings by the end of 2011, the DNR estimated the Michigan feral swine population to number between 1,000 and 3,000.[4] Recent litigation exposed an epic failure of statutory and regulatory drafting.

The Michigan Animal Farmers Association (MAFA) argues that feral swine fail to meet the statutory requirements for listing as a prohibited species.[5] Specifically, a prohibited species must be “not native to this state.”[6] Unfortunately, the legislature failed to define “native” in the invasive species act – kind of a strange omission for legislation limited in scope to non-native species. So, MAFA argued that feral swine are “native” under the definition of “native” included in the animal industry act.[7] The court held that the invasive species act and the animal industry act are not in pari materia – they have different general purposes and do not relate to the same subject matter.[8] Instead, the court was left to rely on the definition of “native” found in Random House Webster's College Dictionary.[9]

The statute also requires that “[t]he organism is not naturalized in this state or, if naturalized, is not widely distributed in this state.”[10] MAFA made the same argument regarding the word “naturalized,” but again the court went with Webster’s.[11] One has to wonder why the legislature would omit critical definitions key to determining the scope of their invasive species legislation.

From the regulatory side, in a declaratory ruling in December 2011, the Michigan DNR listed eight physical characteristics it would use to distinguish feral swine from domestic pigs.[12]  The problem? The guidelines are incredibly vague. According to a state Senator, if “the tail is either curly or straight, you can be a felon for owning that hog.”[13] Even the wildlife biologist in charge of overseeing the order was quoted as saying, “some of the characteristics in the ruling are similar to a domestic hog breed.”[14]

The court ended up rejecting MAFA’s summary judgment and preliminary injunction motions. But, the hallmark of successful drafting is not that it holds up in court, rather that it avoids confusion and litigation in the first place.

[1] DNR Order Listing Sporting Swine as Invasive Species Takes Effect, Michigan DNR, (Oct. 10, 2011) http://www.michigan.gov/dnr/0,4570,7-153-10371_10402-263850--,00.html.
[2] Michigan DNR, False Rumors About Feral Swine Enforcement - Setting the Record Straight, Michigan DNR, http://www.michigan.gov/dnr/0,4570,7-153-10370_12145_55230---,00.html.
[3] Id.
[4] Id.
[5] Mich. Animal Farmers Ass'n v. Dep’t of Natural Res. and Env’t, No. 305302, 2012 WL 676386, at*5 (Mich. Ct. App. Mar. 1, 2012).
[6] Mich. Comp. Laws § 324.41302(3)(a)(i) (2012).
[7] Mich. Animal Farmers Ass'n v. Dep’t of Natural Res. and Env’t, No. 305302, 2012 WL 676386, at*5.
[8] Id.
[9] Id. at *6.
[10] Mich. Comp. Laws § 324.41302(3)(a)(ii) (2012).
[11] Mich. Animal Farmers Ass'n v. Dep’t of Natural Res. and Env’t, No. 305302, 2012 WL 676386, at*6.
[12] “In the Matter of Michigan Animal Farmers Association Request for Declaratory Ruling,” Michigan DNR, (Dec. 13, 2011) http://www.michigan.gov/documents/dnr/MDNR_DECLARATORY_RULING_2011-12-13_FINAL_371200_7.pdf.
[13] Elizabeth Meister and Dan Collison, “Battle Over Michigan's New Swine Rules Goes Hog Wild,” NPR Food Blog, (Aug. 31, 2012) http://www.npr.org/blogs/thesalt/2012/08/31/160394513/battle-over-michigans-new-swine-rules-goes-hog-wild.
[14] Id.