Pyroglyphics

PYROGLYPHICS - HOT IRONS:

OWNERSHIP, IDENTITY AND LOCATION - A SUMMARY OF THE ARIZONA SUPREME COURT’S RECENT LIVESTOCK BRAND DECISION

BY THOMAS KELLY

Antique brand from Mexico

Samuel Donaldson

Although associated with western cowboys, branding one’s cattle to assert ownership and identity began centuries before the legendary cattle industry of the American West. Ancient Egyptian hieroglyphics depict the earliest record of livestock branding 4,700 years ago. Later, ancient Romans used hot irons to sear unique markings into livestock hides to evidence identity and ownership. Herńan Cortés, the legendary conquistador who defeated the Aztecs for the control of Mexico in 1521, is thought to be the first person to brand cattle in the new world. Cortés marked ownership of his cattle with a brand of three Latin crosses.

Holding cattle while the irons heat up

Samuel Donaldson

The practice of branding was adopted by cattle growers in the Americas and the act of “dragging calves to the fire” was made famous by the cowboys of the American West. The earliest recorded brand in Texas is believed to be by Richard H. Chisholm, registered in Gonzales County in 1832. Among one of the oldest continual brands in Texas is the “Running W” belonging to the King Ranch, originally registered in 1869. During the same year, one of the oldest ranches in Arizona,the Sierra Bonita Ranch marked its cattle with the Crooked H brand, which is still in use today. With the completion of the railroad through northern Arizona in 1881, the cattle business flourished in Arizona; the Arizona Cattle Company ran over 16,000 head of cattle under the A1 brand in some of the finest grazing lands surrounding Flagstaff. Branding cattle in the Southwest remains largely unchanged today. Branding irons are carefully fashioned from a hand-forge, calves are “mothered up” and sorted, irons heated over a fire, the calf roped, dragged to the fire, then the brand applied at a specific, approved location on the animal. The pride of ownership can be seen with a brand expertly applied showing consistency in quality, size and location.

A Set of irons to make your own brand

Samuel Donaldson

A brand is more than a symbol: it indicates proof of livestock ownership and is associated with the ranch and the rancher’s identity. As a result, the ranch brand is often reproduced anywhere and everywhere —on entry gates, burned into doors, walls and beams, laid in tile entryways, set in concrete walkways, carved into saddles, chaps and leather furniture, embroidered on jackets and shirts, on license plates, painted on the side of pickups and stock trailers – anywhere the rancher wants to communicate their identity. In fact, a ranch itself is often identified, not by the name of its owners, but by its brand. The O RO, Seven Up, Yolo, PZ, Bar U Bar, Cross U, TK Bar, Hash Knife, Bar Triangle and Diamond A’s are a few of many ranches identified by a brand. Even the United States has a unique brand. A brand may be passed through generations of a ranching family as an heirloom, indicating a proud connection to the past, a reminder of when cattle growers flourished during the settling of the Southwest.

In addition to its specific design, a brand is placed on livestock at a specific location. The rib, shoulder, neck, nose, jaw, side, flank, thigh and loin are specified locations on cattle. The US brand was originally placed on the left hoof of an animal and later changed to the left shoulder. The brand is still used today by the United States Forest Service.

Recently, the issue of ownership and the location of a livestock brand became the subject of an Arizona Supreme Court Case, Stambaugh v. Killian. The case arose as a result of a proposed duplicate use of the Bar 7 brand by two different cattle growers in Arizona. The Bar 7 brand, located on the left hip, has been owned by David Stambaugh in Arizona. The Eureka Springs Cattle Co., LLC owns an identical Bar 7 brand in California, this brand is located on the left rib of the cattle. When Eureka Springs moved its cattle from California to an Arizona ranch, it applied to the Arizona Department of Agriculture to use the Bar 7 brand on the left rib to avoid re-branding its cattle. The Department found Stambaugh’s existing Bar 7 brand during a conflict review, and twice the brand clerk rejected the Eureka Springs application. The brand clerk was eventually overruled by her supervisors and the Eureka Springs brand was approved on the grounds that the brand would be located at a different location on the animal. The department also noted the Eureka Springs brand was not so similar to any other brand on the left rib that the brand would be misidentified or easily converted. As required by statute, the Department of Agriculture publicly advertised Eureka Spring’s request to record its brand. Stambaugh noticed the conflicting brand, objected and filed a protest. The Department denied the protest and approved Eureka Springs Bar 7 brand.. David Stambaugh then hired Paul Orme, a Phoenix attorney, rancher and descendant of the historic Orme Ranch in Yavapai County, to sue the Arizona Department of Agriculture and Eureka Springs. Both the Superior Court and Arizona Court of Appeals ruled in favor of Eureka Springs. Basing its analysis on the Department’s discretion to consider the location of a brand when deciding if a proposed brand is of the “same design or figure” under A.R.S. § 3-1261.B, the Appellate Court determined the statute was ambiguous and considered the repeated references in the Arizona statutes to the significance of the location at which a brand is approved for placement on the owner’s livestock. The court noted the brand location must be designated on numerous documents such as brand applications and certificates, advertisements of proposed brands, bills of sale for brands, brand lease forms, and instruments of distribution for a decedent’s estate and self-inspection certificates. The Appellate Court recognized that for many decades the Department exercised discretion to approve duplicate brands as long as they were applied in different locations on the animal. “[T]o now invalidate the manner in which the Department has construed statutes over many decades would cause havoc with untold numbers of recorded brands.” Thus, the lower court determined “the Department’s longstanding practice of accepting similar brands that are applied in different locations on their owner’s livestock serves the statutes’ purpose of identifying ownership and preventing theft.”

The Arizona Supreme Court disagreed, reversing the holdings of the Superior and Appellate Courts. Basing its analysis on the plain language of the statute, the Court ruled the Department is precluded from recording “two brands of the same design or figure” regardless of their location. The statute in question, A.R.S. § 3-1261(B), provides: B. No two brands of the same design or figure shall be adopted or recorded, but the associate director, may, in his discretion, reject and refuse to record a brand or mark similar to or conflicting with a previously adopted and recorded brand or mark.

In its reasoning, the Supreme Court disagreed with the lower court and determined A.R.S. § 3-1261(B) was not ambiguous and did not include a location for the brand. In a step-bystep analysis, the Court found the common meaning of “design or figure” did not include “location” as part of its meaning. Next, the Court found the statute as a whole could only be subject to one reasonable interpretation – as barring the recording of two brands of the same design or figure, even in different locations. The Court then reasoned that adopting the Department’s argument would render subsection 3-1261(G), which makes it unlawful to apply a recorded brand in an unrecorded location, unnecessary or superfluous violating basic statutory interpretation. Further rejecting arguments of ambiguity, the Supreme Court noted subsection G, mandating location has a purpose, to deter a cattle rustler by requiring the thief to overcome a two-prong security test: a matching design and a matching location. Moreover, this subsection specifying location assists the Department in where to look for a specific brand, quickly identifying its owner during livestock inspection. Finally, in response to the assertion by the Appellate Court that ruling against the Department would cause chaos invalidating hundreds of brands, the Supreme Court determined that the Department could find only thirty-two instances of possible duplicate brands out of 10,000 registered brands. As a result, Stambaugh v. Killian ensures a recorded brand in Arizona is unique in its design and feature and has only one owner regardless of its location on livestock. Our oldest son and his wife own a ranch located deep in the Blue Primitive Area in Eastern Arizona near the Arizona/New Mexico border. The ranch is a road-less Forest Service allotment. Access to the ranch through the steep, rocky canyons and rugged mountains of the southern Blue Range overlooking the San Francisco River is by horseback. After several hours in the saddle you rim out above Coalsen Canyon. At the bottom of the steep rocky trail, sits the ranch headquarters surrounded by huge cottonwoods and sycamore trees, built decades ago next to Coalsen Creek. The headquarters consists of old corrals made from cedar posts and stays, a small hay barn and a little rock cabin with no amenities: no electricity, no running water, no cell phone coverage, and miles to the nearest neighboring ranch.,This place is a throwback to an earlier time in Arizona ranching history. Despite its antiquity the ranch still shows remnants of the pride of ownership of its earliest cowboys. The cabin was laboriously constructed with native rocks, hand-hewn log rafters and a tin roof; its architect included a small but highly functional fireplace. Embedded into the mortar above its mantel is inscribed the date it was built – 1941, and the brand of its owner – the Cross Y. Identity preserved for generations.

REFERENCES: Stambaugh v. Killian, 398 P.3d 574 (2017). Stambaugh v. Butler, 249 Ariz. 353, 379 P.3d 250 (Ariz. App. 2016) Decoding the Range: The Secret Language of Cattle Branding. https://www.smithsonianmag.com/arts-culture/decoding-the-rangethe -secret-language-of-cattle-branding-45246620/ What’s In a Brand? The History of Cattle Branding. https://agamerica.com/brandhistory-of-cattle-branding Graham County, Arizona BRANDS. http:// genealogytrails.com/ariz/graham/brands.html.

~ Most brands in the United States include capital letters or numerals, often combined with other symbols such as a slash, circle, half circle, cross, or bar. Brands of this type have a specialized language for “calling” the brand. Brands are called from left to right, top to bottom, and when one character encloses another, from outside to inside. Some terms used in brand identification are; crazy, rafter, reverse, lazy, tumbling, flying, walking, running, rail, stripe, box, diamond, hanging and rocking. What’s your brand? Post a picture on social media and use #westernaglife.

Samuel Donaldson

ABOUT THE AUTHOR: Thomas K. Kelly is a retired attorney who now manages family cattle ranches and helps his wife in her ranch real estate business