Two Michigan agencies want hog farmer's lawsuit dismissed

By Traci R. Gentilozzi Dolan Media Newswires Two state agencies have asked the U.S. District Court for the Western District of Michigan to dismiss a Baraga County hog farmer's complaint. Brenda Turunen is a member of the Keweenaw Bay Indian Community and a Baraga County resident. She and her husband raise ''Hogan Hogs,'' a breed of pig they developed but which may be declared invasive by the Michigan Department of Natural Resources, even if the hogs remain penned. Turunen filed a complaint in federal court last month, claiming that an 1842 treaty guarantees Indians the right to live off the land through means such as hunting and farming in exchange for ceding land to the federal government. (See, "Farmer first to claim exotic hog ban violates tribal rights," MiLW blog, April 15, 2013.) The MDNR and the Michigan Department of Agriculture and Rural Development have responded to the complaint, saying that ''perhaps the most significant problem'' with the complaint is that all rights of occupancy that may have been reserved by the 1842 treaty were extinguished by an 1854 treaty, reports the Daily Mining Gazette. The MDNR and the MDARD claim this was recognized by the 7th U.S. Circuit Court of Appeals in a 1993 action between the Sokaogon Chippewa Community and Exxon Corp. The MDNR and MDARD have asserted the treaties defend hunting, fishing and gathering, but not commercial farming. In addition, it is claimed that Turunen's complaint ''fails to allege facts to support jurisdiction" and that the agencies are immune from lawsuits in federal court under the 11th Amendment. Joseph O'Leary, who represents Turunen, said the cases on which the agencies rely "are off point." A separate state case was filed last year by Turunen's husband, Roger. He and four other plaintiffs across the state are fighting the MDNR's Invasive Species Order, on various grounds. Attorneys involved in those cases say that, while each matter involves its own separate issues and facts, the state wants to hear the cases together and issue one ruling. An agreement will allow a judge, likely Marquette County Circuit Court Judge Thomas Solka, to decide which parts can be tried together and which will remain separate. Published: Thu, May 16, 2013