Opinion
No. 335645
10-12-2017
GREGORY JOHNSON and BEAR MOUNTAIN, L.L.C., Plaintiffs/Counter-Defendants-Appellants, and CENTER FOR FOOD SAFETY, Amicus Curiae, v. DEPARTMENT OF NATURAL RESOURCES and DIRECTOR, DEPARTMENT OF NATURAL RESOURCES, Defendants/Counter-Plaintiffs-Appellees.
UNPUBLISHED Marquette Circuit Court
LC No. 12-050150-CZ Before: K. F. KELLY, P.J., and BECKERING and RIORDAN, JJ. PER CURIAM.
Plaintiffs/counter-defendants, Gregory Johnson and Bear Mountain, LLC, (collectively "plaintiff"), appeal by right an order granting judgment in favor of defendants/counter-plaintiffs, the Department of Natural Resources and its director (collectively "DNR" or "department"). Finding no errors warranting reversal, we affirm. Because there is no reason to disturb the trial court's judgment, we decline to address defendant's alternative theory for affirming the judgment.
Defendant's alternative theory for affirming the judgment involves application of the law of case doctrine.
I. BASIC FACTS
This is the second time this case has been before the Court. In Johnson v Dep't Natural Resources, 310 Mich App 635; 873 NW2d 842 (2015) (Johnson I) this Court set forth in detail the background facts and proceedings and there is no need to repeat them. The Johnson I Court remanded the matter for trial on the issue of whether plaintiff owned prohibited animals. After a lengthy trial, the trial court determined that 10 of plaintiff's pigs violated the DNR's Invasive Species Order Amendment No. 1 (ISO). Plaintiff now appeals as of right, arguing that the trial court misapplied the ISO to the facts of the case and further erred in allowing certain witnesses to testify as experts.
II. TRIAL COURT'S FINDINGS
Plaintiff argues that the trial court misconstrued and misapplied the ISO to the facts of this case. The trial court specifically concluded that Roger Turunen's animals were the result of a domestic breeding process and that the "Hogan Hog" was derived from a mix of four known and registered breeds of sus domestica - Duroc, Mangalitsa, Tamworth, and Meishan - but then looked to phenotype identification. Plaintiff argues that it was "ridiculous" for the trial court to conclude that two animals could procreate to produce an illegal animal.
"This Court reviews a trial court's findings of fact in a bench trial for clear error and reviews de novo its conclusions of law." Ambs v Kalamazoo Co Rd Comm'n, 255 Mich App 637, 651-652; 662 NW2d 424 (2003). "A finding is clearly erroneous where, although there is evidence to support the finding, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been made." Id.
The trial court did not clearly err when it found that a number of plaintiff's pigs were prohibited. The trial court determined that certain of plaintiff's animals were prohibited "as sus scrofa or hybrids thereof." The trial court made the following observations regarding plaintiff's testimony:
The portion of the eighty acres plus or minus is . . . somewhat of a natural environment in terms of topography, vegetation, geology, and so on, and that area wherein the pigs are located at time of harvest by clients or customers of Mr. Johnson is an engineered and designed - enclosed, I should say, and an engineered and designed and well constructed fencing system from which, in his experience of operating Bear Mountain, LLC, none of his pigs have ever escaped, and I find Mr. Johnson credible in that description of his operation, as well as the secured nature of his facility. And Mr. Johnson went on to testify that within this secured, fenced area, or woodlands are domestic pigs selectively harvest[ed] with the assistance of a guide, and that selective harvest could also be characterized as a simulated hunting experience.The trial court further noted that plaintiff's "advertised description of the animals there really go beyond what I would regard as ordinary sales pitch or sales puffery."
Now Mr. Johnson is well qualified to have designed and constructed and managed such a facility. . . . Again, I do find Mr. Johnson credible in his description of the physical layout and characteristics of his property and operation, and that he has not lost any of the animals on his property by escape into free range or the wild.
The trial court found that none of the Canadian breeds were on plaintiff's property: "I do find from the evidence and testimony, no evidence that there is any or are any descendants of this bloodline of those animals at Bear Mountain, LLC, at any times relevant to this case or any of the animals currently in Mr. Johnson's possession." Instead, the trial court specifically found that "the animals observed by the DNR Wildlife Biologists on December 16, 2015, all came from Roger Turunen's pig farm in Baraga County." It acknowledged that Turunen "was trying to move his pigs back towards the wild, and that includes producing and encouraging and breeding in the direction of pigs that were hairy, that lived outdoors once bred, smaller ears, dark of color, and other physical characteristics consistent with sus scrofa." The trial court specifically found:
Now Mr. Turunen testified he started this complex breeding process with all recognized and in some cases registered domestic breeds, domestic pigs, Durocs, Tamworths, Manglitsas, and Meishans and produced through considerable effort, time, and expense and number of years what he now calls Hogan hogs, . . . which he is marketing to game ranches including the Defendant in this case, Bear Mountain, LLC, and its owner.[]
I do find from this record and the testimony that the Turunen pigs are the result of a domestic farm breeding operation, not only in the breeding process but in the care and raising of those pigs before sale . . . and that both the breeding process described, as well as the care of the pigs and their location on - as part of the breeding process on Mr. Turunen's farm, is a domestic process.
Johnson is actually the plaintiff, having sued defendant in the first instance.
The trial court then discussed the experts' opinions and acknowledged the difficulty in classifying the pigs. Still, the trial court found:
But the DNR is then left with this Invasive Species Order in which they have to enforce and make decisions on the basis of phenotypical appearances and characteristics. Now the pigs at issue here, Mr. Turunen's pigs that ended upon Mr. Johnson's game ranch/farm, were generally raised outdoors. They're dark of hair. They're long of rostrum and nose line. They have many of the phenotypical characteristics that the literature indicates are adaptable to free range pigs, much more so than a fully commercial industrialized pink pig raised indoors that will sunburn in a matter of hours if left out in the sun and, although it ultimately will grow hair if left out in the winter, that these pigs that Mr. Turunen are producing have such characteristics that would cause an enforcement officer and this Court to conclude that they are sus scrofa and therefore unlawful pigs in Mr. Johnson's possession under those circumstances.The trial court concluded:
So on this Bench trial, the Court, as a fact finder, is duty bound to apply the law, and that includes the Natural Resources Environmental Protection Act, the Invasive Species Order, as written, and the Court of Appeals Decision, which is not only the law of the case, as we say, but it is now embedded in the common law of the State of Michigan as a published decision of the Court of Appeals from which no appeal was sought for leave to appeal from the Michigan Supreme Court.
So applying those laws to the facts and opinions that I've summed up here, this Court concludes that ten of the pigs possessed by Defendant, Greg Johnson and Bear Mountain, LLC, are sus scrofa or a hybrid thereof and are prohibited under the Invasive Species Order as amended and enacted under the Natural Resource Environmental Protection Act.
Defendant correctly notes that the trial court fell short of finding that Turunen's pigs were sus domestica; instead, the trial court's focus was on the method and procedure that Turunen utilized. The trial court correctly recognized that phenotyping was the only way to characterize the animals. The trial court appropriately considered plaintiff's own website and advertising. The trial court also relied on defendants' experts, who painstakingly went through a number of photographs and explained why certain animals were sus scrofa. To the extent plaintiff argues that the result was an injustice to plaintiff bears on the prohibition itself and not the trial court's application of the facts to the law. The trial court's findings were not clearly erroneous.
III. DEPARTMENT'S EXPERTS
Plaintiff argues that the department's experts were unqualified and that their opinions were not based on reliable scientific principles.
Although defendant implies that plaintiff never objected to the witnesses' testimony, it is clear from a review of the record that their qualifications were always at issue and that the trial court specifically addressed that issue. --------
"[T]he qualification of a witness as an expert and the admissibility of the testimony of the witness are in the trial court's discretion and we will not reverse on appeal absent an abuse of that discretion." Surman v Surman, 277 Mich App 287, 304-305; 745 NW2d 802 (2007).
The trial court did not abuse its discretion in determining that Dwayne Etter and Brian Roell were qualified to offer expert testimony. MRE 702 provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."The admission of expert testimony requires that (1) the witness be an expert, (2) there are facts in evidence that require or are subject to examination and analysis by a competent expert, and (3) the knowledge is in a particular area that belongs more to an expert than to the common man." Surman, 277 Mich App at 308. "MRE 702 requires the trial court to ensure that each aspect of an expert witness's proffered testimony—including the data underlying the expert's theories and the methodology by which the expert draws conclusions from that data—is reliable." Gilbert v DaimlerChrysler Corp, 470 Mich 749, 779; 685 NW2d 391 (2004), citing Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579, 589; 113 S Ct 2786; 125 L Ed 2d 469 (1993).
At trial, Etter testified that he had a Bachelor of Science Degree in Environmental Studies from Stockton University. He had a Master of Science Degree from Western Illinois University and a PhD. in Natural Resources and Environmental Sciences from the University of Illinois. The courses included wildlife biology, life sciences and taxonomy. Between his master degree and Ph.D., Etter worked in a deer research program out of the DuPage County Forest Preserve District near Chicago. His research on the white tail deer included estimating population and looking at ways to control nuisance or overabundant species. Etter taught Wildlife Biology classes at Central Michigan University and the University of Michigan-Flint. He also wrote 28 peer-reviewed reports and articles about wildlife biology. Etter was a certified Wildlife Biologist under the Wildlife Society. Etter explained how he became specialized in matters:
You have the general background from your education, and then it's a matter of researching, that is, found in textbooks or in publications, journal articles; also interacting with experts in those fields and attending conferences, meetings, seeing presentations at those meetings. So collectively, assimilate all that information to get educated along those individual species.Etter testified that identifying animals was part of his job, which included looking to the taxonomy and physical characteristics - or phenotype - of the species.
Etter had been with the DNR since 2002. His first position was as a Wildlife Research Biologist. He was in charge of research on black bears. In 2003 he was promoted to Wildlife Research Specialist and assumed research responsibilities for all fur bearers. In 2014, Etter assumed responsibility for all feral swine within the state. His most recent research was on learning as much about feral swine as possible so that "we can effectively remove them from the landscape." Etter served on the Invasive Species Core Team responsible for developing a management plan for invasive species. He interacted with agencies and worked on providing educational information about feral swine.
Etter began his work on feral swine in 2012 when he began researching them. He relied heavily on literature, attended conferences, and had discussions with experts in the field. He gathered his knowledge "through my research, through my studies, looking at tests, looking at field guides, attending conferences, talking to other experts in the field."
After identifying several photographs of animals observed at plaintiff's facility as violations of the ISO, Etter explained that it was possible for two DNR biologists to disagree about classification. In those instances, the biologists would get together to see why they disagreed and would then seek expertise outside of the department. In such an instance, the department would be lenient and not insist that the animal was covered under the ISO.
Etter testified that some scientists separated sus scrofa into two different species and some did not. It was true even though sus scrofa wild boar was the ancestor of all domestic swine. But that did not mean that sus domestica was a hybrid of sus scrofa. There were three types of groups - domestic, wild, and hybrid. Etter acknowledged that Mayer has concluded that "based on what is now known, the identification of completely reliable defining characteristics for the three forms has yet to be achieved." Etter formed his opinion that sus scrofa and sus domestica were different sometime in 2015 - "it was a process." This Court deferred to Shannon Hanna on the issue in its June 2015 opinion. It took Etter so long to come to such a conclusion because there was a tremendous amount of information involving the two species and continued to be debated in the scientific community. "I believe by September 30 of that year, and as I said, prior to getting into that genetic literature, I was of the opinion that they were separate species. Once I started to read more about the genetics, I started to wonder, professionally, if I had seen everything there was to be seen to have that opinion."
The following exchange took place during cross-examination:
Q. And now it appears on the 30th, you've finalized your opinion; is that right?
A. It appears that way, yes.
Q. That's less than a year ago; correct?
A. Yes, um-hmm.
Q. And just so we're clear, we covered that in your testimony before, you didn't start working in earnest to be an expert until you went to that International Wild Pig Symposium in Alabama in 2014?
A. No. I was working before then accumulating information that I felt by the time I had attended the conference in 2014, I felt I was an expert at that point, yes.
Q. Okay.
A. But really, I started to get into the literature in 2012.
Q. All right. But you didn't have any role with the DNR at that point in feral swine; correct?
A. Not other than the research, no.
Q. Okay. And you were not formally made the point person, feral swine person for the DNR until Shannon Hanna passed that on to you. She didn't pass it on, but you got it from Shannon Hanna; correct?Etter had only classified pigs on the two inspections at the Johnson and Turunen facilities.
A. I assumed the responsibilities. It was a transition period there.
Q. When was that, approximately?
A. It was sometime in 2014. Maybe summer, late summer 2014 would be my - that's my recollection of it.
Q. When you went to the April symposium in 2014 in Alabama -
A. Um-hmm.
Q. - did you consider yourself to be an expert at that point in time in feral swine?
A. I said when I came back from the conference, I felt that I had - I had discussed additional questions that I had with professionals at that meeting, I had seen a lot of different presentations, so I felt after the conference, I felt that I was an expert at that time.
Q. All right. So that - What was that, a three or four day conference?
A. Yeah. Yeah, it's three or four days. Yes.
Q. So anyway, going in, you weren't sure if you were an expert; coming out, you were sure that you were?
A. Yes. Yes. If there has to be a time when I'm an expert and when I'm not, I would say that was the time.
At trial, Roell testified that he had a Bachelor's of Science from Northern Michigan University and a Master's Degree in Biological Sciences from the University of Northern Colorado. He worked at the Colorado Division of Wildlife for three years while working on his Master's degree, researching swift fox on the Pawnee National Grasslands. He taught Biology and Anatomy/Physiology at Northern Colorado and had also authored or co-authored peer review articles. Roell had training in handling animals and in track identification and also taught training classes in his role as Wildlife Biologist.
Roell had been with the DNR for 19 years. His current position was Wildlife Biologist, which he had held for the previous five years. In that capacity, Roell was in charge of all wildlife in Marquette and half of Alger County, including "a lot of animal identification." He was the point person for the entire Upper Peninsula with regard to wolves and swine. He was asked to identify cougars, wolves, wolf hybrids, coyotes, and pigs. He was asked to identify species on almost a daily basis. He often referred people to various field guides.
Roell's training with sus scrofa began January 31, 2012 when he attended a training session by Dr. John J. Mayer. At the session, Mayer discussed how to identify sus scrofa and domestic hogs. Roell also studied the issue independently, reading articles and consulting various websites. Roell had experience with identifying sus scrofa "numerous times" because, as part of his duties, he conducted captive Cervid audits on facilities that had sus scrofa and hybrids. One of the first things Roell would observe when trying to identify an animal was its paw prints and how it moved. He would start at the legs and work his way up. A "lot of it depends on how good a look I get at the animal and how much time I can spend with it." In determining whether a pig was sus scrofa, Roell applied the same principles he used to identify other types of animals. Roell generally agreed with Etter's testimony regarding the distinguishing characteristics, but added that he also looked at chest width. A domestic pig was wider in the chest and their feet were set further apart. He, like Etter, admitted that there is no particular set number of characteristics a pig must have in order to be considered sus scrofa. Roell disregarded anything an owner might say; instead, his focus was on the physical characteristics of the animals.
When asked how the general public would know that Roell was an expert, he testified at his deposition that they would have to look at his curriculum vitae and assume he was. The following exchange took place:
Q. About when would you say you felt you had enough expertise to be an expert who could testify competently in a Court of law?
A. Probably 2014. I don't know a month or anything like that, but -
Q. No, that's good. That's generally sometime in that year?
A. Yeah.
On appeal, plaintiff complains that these witnesses had only recently acquired their so-called expertise. But, as defendant points out, the court rule has no requirement regarding the minimum length of time an expert is deemed an expert. It is clear that both Etter and Roell were experts in wildlife biology and had extensive history with the DNR in phenotyping. Their testimony was based on sufficient facts and data and was the product of reliable methods. The trial court did not err in qualifying them as experts.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
/s/ Michael J. Riordan