Open Range

EXAMINING ARIZONA’S OPEN RANGE LAWBY THOMAS K. KELLY AND TAMRA S. KELLY

When I graduated from Prescott High School in 1970, Arizona’s population was around 1.8 million people. As one of the nation’s fastest growing states, Arizona’s population today has reached 7.1 million.

The state continues to grow rapidly. Arizona’s cattle and sheep ranchers use almost one-half of Arizona’s total land mass, some 72,750,000 acres managed by the U.S. Forest Service, Bureau of Land Management (BLM) and Arizona State Land Department for livestock production.

As the state’s population grows, conflicts between cattle and people are becoming more frequent and more intense. Our new, transplanted population is often from urban areas unfamiliar with the principles and concepts of “open range” livestock production. Every livestock producer using public lands in Arizona knows our very existence is dependent upon maintaining and preserving Arizona’s open range law.

Historically, open range laws developed as a result of land ownership characteristics. Due to confined space in England, a common-law rule developed requiring a landowner to keep livestock enclosed on his private property. If not, and the livestock wandered on the land of another, the livestock owner, subject to certain exceptions, was liable for the trespass and ensuing harm to the property.

This general rule was followed by most eastern states of the United States which are essentially devoid of any public lands. In the western U.S., with its large expanses of both private and public lands, this rule requiring a rancher to “fence in” his livestock was not historically used nor even practical to implement.

Prior to enactment of the Taylor Grazing Act in 1934, the public lands were not managed and cattle ranchers enjoyed the unregulated use of public grazing lands. Cattle were simply identified by an authorized brand, but

free to graze anywhere on public lands. After enactment of the Taylor Grazing Act, the public lands were subjected to a system of regulation by “permit’ allowing cattle ranchers a designated area of public lands for grazing by a specific permittee. Large tracts of land containing hundreds, if not thousands, of acres were identified by the public agencies as “grazing allotments” and were managed for livestock production with agency conservation principles. Fencing off private parcels of property within these grazing allotments is not practical, and at times, impossible. Accordingly, the courts of the western states refused to follow the “fence in” rules of the eastern states, adopting in its stead, the “open range law.” Under the open range law there is no liability, civil or criminal, for livestock wandering on to the lands of another. If a landowner is concerned about livestock, his remedy was to simply fence out the unwanted cattle. Given the realities of raising livestock on vast expanses of public lands, Arizona still adheres to the open range law.

Although there is not a statute specifically defining the term “open range” in Arizona, ARS, Title 3, Article 8 (No-Fence Districts) contains 9 separate statutes, which comprise the open range law of the State. These statutes specify liability for harm caused by livestock to private property. In other words, if a property owner does not want livestock on his property, he must build a fence to enclose his property. There are two key statutes: ARS § 3-1426, which defines a “legal fence,” and ARS § 3-1428, which provides if the livestock have broken through the “legal fence” an owner may collect damages.

In common terms, this means that as a private landowner within a grazing allotment, if you do not want livestock on your property, you must build and maintain a lawful fence around your property.

Under this legal framework, a rancher using public lands for livestock production

in Arizona holds a permit issued by the federal or state government and is entitled to graze his cattle on the “open range” of the designated allotment. Landowners objecting to the presence of cattle on their property must fence out the unwanted livestock with a “lawful fence.” If they fail to do so, the rancher may allow his cattle to graze freely on the contiguous parcels of private land and is not subject to liability for the damage his cattle may cause. This practice is commonly referred to as adverse grazing.

As Arizona grows, its golf courses, tract home subdivisions, gas stations and strip malls are often constructed immediately adjacent to public lands cattle ranches where cattle have ranged freely for more than a century.

As the expansion continues, municipalities expand and incorporate these developing areas to increase their tax base. Once a municipal entity is formed, it must enact rules and regulations under its City Code – including those relating to the management of livestock.

Recently, I represented a local rancher who received multiple citations resulting from his cattle trespassing on private lands within the boundaries of the Town of Prescott Valley. As is often the case when addressing these problems, this Arizona ranching family has been ranching and grazing cattle on state and federal lands for decades before the Town of Prescott Valley existed. Once the rancher refused to admit guilt, a direct conflict between Arizona’s open range law and the Town of Prescott Valley’s Code materialized.

Cattle entering on the private parcel of land next to the rancher’s allotment found newly planted trees, shrubs and grasses far more palatable than the native grama grasses. After receiving a complaint from the landowner, who refused to fence the private property to keep cattle out, the Town prosecutor argued that the rancher had violated Prescott Valley Town Code § 6-02-020 Strays; Livestock and Poultry; Housing, which states: Any person who keeps

or causes to be kept any horses, mules, cattle, burros, goats, sheep or other livestock or poultry shall keep such livestock or poultry in a pen or similar enclosure to prevent their roaming at-large within the corporate limits of the town. Any such livestock or poultry running at-large may be impounded by the animal control officer.

After extensive litigation, both the Magistrate of the Town of Prescott Valley and, after an appeal, the Superior Court in Yavapai County rejected the prosecutor’s argument and held the rancher had not violated the town code and was not liable for damages. Both courts ruled in favor of the rancher under Arizona’s open range law.

The argument for the rancher and against liability was based on the operation of his cattle business pursuant to a lawful permit issued by the State of Arizona on lands owned by Arizona and subject to Arizona’s open range law. The rancher did not keep, own, or maintain livestock within the city limits of Prescott Valley. The rancher, therefore, is subject to state law, not the town ordinance.

This case points out the increasing frequency in which municipal ordinances may come into direct conflict with state law allowing a rancher to graze cattle on federal and state lands under the open range law. A long-recognized principle of statute interpretation involving conflict of laws in Arizona establishes that although municipalities are given express power to

legislate upon a certain subject, they may do so even though the same subject is covered by state-wide law, but municipal legislation cannot contradict the state law, although it may parallel it, or even go beyond it, so long as the two are not in conflict.

Application of the ordinance to individuals keeping livestock within the town limits is a reasonable, parallel regulation consistent with state open range law. Applying the ordinance to cattle ranchers properly permitted by the state creates an impermissible conflict. The state law relating to open range governs and, in this case, the Town Magistrate and Yavapai County Superior Court determined the rancher did not violate a Town ordinance.

The conflict between cattle and people in Arizona is becoming more prevalent. Ranchers must be prepared to effectively address these issues. Ranchers on public lands increasingly confront problems resulting from the rapid urban growth.

As an example, CPNA/Ag Lands Southwest recently listed the historic T’s Ranch for sale. The ranch is located a few miles north of New River and less than a mile east of Interstate 17. The T’s allotments are managed by the BLM and State Land Department and encompass a golf course, shooting ranges, gas stations, shopping malls and tract homes of the master planned community of Anthem, Ariz.

Although the T’s Ranch existed longbefore

the interstate was constructed and development of this part of Arizona occurred, its owners will frequently face issues relating to the conflict between cattle and people. They must become familiar with Arizona’s open range law, while developing communication and negotiation skills to deal with their neighbors and other users of the same public lands they graze. It is the only way to coexist and continue Arizona’s historical practice of grazing cattle on its public lands.

Not long ago, I was standing at the podium in the Prescott Justice Court with a lifetime friend and local rancher, who was charged with a livestock violation.

When asked to enter his plea, the rancher’s response was “Insanity your honor.”

When the judge gave him a quizzical look responding Insanity?, my friend looked him dead in the eye and said, “Judge, you have to be crazy to try to grow cows in this country.”

ABOUT THE AUTHORS

Thomas K. Kelly is a retired attorney, who now manages family cattle ranches and helps his wife, Tamra S. Kelly, in her real estate business. Tamra is an associate of CPNA and head of its Ranch and Farm Division and qualifying broker for Ag Lands Southwest. She sells cattle ranches and other agricultural properties in Arizona and New Mexico.

Interested in agricultural properties? Go to: https://www.aglandssw.com