Chasing Livestock

CHASING LIVESTOCK

BY: THOMAS K. KELLY

PHOTO BY: TINA THOMPSON

With urban areas encroaching into open space and public lands in the western U.S., the frequency with which dogs harass, chase, wound and kill livestock is increasing. Dog owners walking, hiking or running with their pets on undeveloped or public lands often release them from their leash to allow the dogs to run and exercise. Residents of the forty-acre subdivision “ranches” sparsely populated, but common in Arizona and New Mexico, allow their dogs to run free. Worse, feral dogs in packs live on the fringes of our developed areas and search for prey to survive. Instinctively, these domestic and wild dogs respond to grazing animals by chasing, maiming or killing vulnerable animals. Even if the livestock are not killed, the devastating effect of dogs chasing and wounding livestock can be seen by the tragic results. Horses cut deeply by barbed wire, the hind legs of cows bitten and scarred, or the ears chewed off baby calves are indicators that either a domestic pet or feral dogs are wreaking havoc on a rancher’s livestock. The question I have been asked by my clients is: can I legally shoot them? Depending on which state you live in, my response is generally, yes.

Arizona, California and Texas have specific statutes protecting livestock and authorizing a person to shoot a dog that is pursuing or chasing livestock. The Arizona statute provides: Dogs killing or chasing livestock; liability of owner; classification A. If any person discovers a dog killing, wounding or chasing livestock, or discovers a dog under circumstances which show conclusively that it has recently killed or chased livestock, he may pursue and kill the dog. B. The owner of a dog is liable for damages caused by the dog chasing livestock. In the case of a dog killing or wounding livestock, the owner of the dog is liable for damages to the owner of the livestock equal to three times the value of the livestock killed or wounded. C. An owner of a dog who intentionally or recklessly allows or causes the dog to: 1. Wound or kill livestock owned by another person is guilty of a class 1 misdemeanor. 2. Chase livestock owned by another person, causing injury to the livestock, is guilty of a class 3 misdemeanor. ARS 3-1311 Dogs killing or chasing livestock; liability of owner; classification (Arizona Revised Statutes (2018 Edition)) ARS 3-1311 Dogs Killing or chasing livestock: liability of owner; classification (Arizona Revised Statutes (2018 Edition))

It is interesting to note that the Arizona law allows “any person” who discovers a dog killing, chasing or wounding livestock to shoot and kill the dog. This remedy is not limited to the owner of the livestock being chased. Moreover, the Arizona statute places criminal liability squarely on the shoulders of the owner of the offending dog and renders the owner of the dog liable for money damages caused by the death or injury to livestock. The rancher or other owner of livestock would be permitted to shoot the dog chasing their livestock then seek recovery of money damages for the treatment of injuries or death of the animal.

California law has a similar provision: Ca Civ. Sec 3341 (California Code (2019)) 1. In the prosecution of actions under the provisions of this chapter, it shall not be necessary for the plaintiff to show that the owner, possessor, or harborer of such dog or other animal, had knowledge of the fact that such dog or other animal would kill, wound or worry bovine animals, swine, horses, mules, burros, sheep, goats, or poultry. Any person on finding any dog or dogs, or other animal, not on the premises of the owner or possessor of such dog or dogs, or other animal, worrying, wounding, or killing any bovine animals, swine, horses, mules, burros, sheep, angora or cashmere goats, may, at the time of finding such dog or dogs, or other animal, kill the same, and the owner or owners thereof shall sustain no action for damages against any person so killing such dog or dogs, or other animal. Nothing in this section shall render an owner, possessor, or harborer of a dog liable for the accidental or unavoidable killing or injury of any bovine animal, swine, horse, mule, burro, sheep, angora goat, cashmere goat, or poultry which occurs in connection with or as a incident to the driving or herding the same from the premises of the owner, possessor, or harborer of the dog, whether such killing or injury occurs upon such premises or off of such premises. CA Civ. Sec. 3341 (California Code (2019 Edition))

Similar to Arizona, in California “any person” may shoot and kill a dog chasing the specified species of livestock and the statute precludes the owner of the dog from obtaining damages from the person who shoots the dog. California omits the specific statutory section authorizing recovering money damages for injuries or death caused to livestock. This omission would not, however, preclude a civil claim based on general tort law principles requesting recovery of damages based on the negligence of the owner in failing to maintain control of the aggressive dog. A somewhat unique provision in California allows the owners of real property to use their dog to herd or drive unwanted livestock from their property and in that limited circumstance receive immunity from prosecution for the accidental or unavoidable injury of death of livestock.

Keeping in mind that Texas produces more beef than any other state on mostly private land, it is not surprising the state has the most comprehensive protection for livestock producers against attacking dogs: Dogs or Coyotes that Attack Animals: (a) A dog or coyote that is attacking, is about to attack, or has recently attacked livestock, domestic animals, or fowls may be killed by: (1) any person witnessing the attack; or (2) the attacked animal’s owner or a person acting on behalf of the owner if the owner or person has knowledge of the attack. (b) A person who kills a dog or coyote as provided by this section is not liable for damages to the owner, keeper, or person in control of the dog or coyote. (c) A person who discovers on the person’s property a dog or coyote known or suspected of having killed livestock, domestic animals, or fowls may detain or impound the dog or coyote and return it to its owner or deliver the dog or coyote to the local animal control authority. The owner of the dog or coyote is liable for all costs incurred in the capture and care of the dog or coyote and all damage done by the dog or coyote. (d) The owner, keeper, or person in control of a dog or coyote that is known to have attacked livestock, domestic animals, or fowls shall control the dog or coyote in a manner approved by the local animal control authority. (e) A person is not required to acquire a hunting license under Section 42.002, Parks and Wildlife Code, to kill a dog or coyote under this section. Tex. Health and Safety code sec. 822.13 Dogs or Coyotes That Attack Animals (Texas Statutes (2017 Edition))

In Texas, any person witnessing a dog “attacking, is about to attack, or has recently attacked livestock” may kill the dog. Further, the owner of the livestock or a person acting on behalf of the owner may kill the dog if owner or person simply has knowledge of the dog attacking livestock. The law further immunizes the livestock owner from liability for killing the attacking dog and allows the livestock owner money damages for the injury or death to his livestock as well as costs incurred during the capture and return of the offending dog. Common sense dictates that Texas may have the best protection for livestock owners due to the significant impact livestock production has on its economy and the fact the state has very limited open space or public land. A dog attacking livestock would almost certainly be trespassing on a livestock producer’s private property.

Oddly, New Mexico’s protection for livestock from attacking dogs is extremely limited and somewhat impractical: Dogs: destruction (New Mexico Statutes (2018 Edition)) A. Any peace officer may impound any dog found running at large unaccompanied by and not under the control of the owner or handler, and further, the peace officer shall destroy the dog if it is in the act of pursuing or wounding livestock or wounding and killing poultry or attacking humans. B. Any peace officer may kill any dog in the act of pursuing or wounding any livestock or wounding or killing poultry or attacking humans whether or not the dog wears a rabies tag required by Section 77-1-3 NMSA 1978. There shall be no liability of the peace officer in damages or otherwise for such killing. NM Stat. 77-1-9 Dogs; destruction. (New Mexico Statutes (2018 Edition))

The New Mexico law provides little, if any, protection for the livestock producer. Under its statute, a rancher could not shoot a dog pursuing, wounding or killing livestock. If the owner of livestock sees a dog chasing or wounding his livestock, the law requires the owner to call a law enforcement officer to kill the dog. Once the peace officer arrives, he is only allowed to destroy the dog if it is in the actual act of pursuing and wounding livestock. Given the size and travel distances in New Mexico, it could take hours, if not days, for a peace officer to respond to an incident where dogs are attacking livestock. By the time they get to the scene the horrible results of wounded or dead livestock is complete and the attacking dogs long gone. Only when an officer actually sees the dog actually pursuing or wounding livestock may he shoot and kill the dog. Such a law provides little protection to the state’s livestock producers and is highly impractical.

We live in a culture where some people believe pets should enjoy a status equal to humans. These people spend substantial money for the purchase and care of their pets. There are dog parks, dog clothes, dog diets and even dog car seats. Incredibly, some dogs are even allowed to travel on airplanes, enter retail stores and accompany their owners into certain restaurants. To these dog owners, the reality of their pet being shot by a rancher for chasing his calves is met with disbelief, anguish and anger. Although the above-described statutes provide a great deal of protection to the producer trying to protect his livestock, when asked by a client: can I shoot a dog chasing my cattle? My answer is yes, but be careful. First make sure it’s safe to shoot then take a picture of the dog chasing your cattle before you kill it. Although not required, the photograph provides concrete proof that the shooting was necessary and justified under the law. Giving the picture and a copy of the statute to lawyers, judges and others often provided a quick and successful resolution to a legal dispute.

Several years ago we had a cow dog named Gus. He was a full-blooded border collie with handsome markings who proved to be a pretty good cow dog. One day, a tangle with a porcupine left him with some quills embedded deep in his throat. Unable to get them out,I took him to our local vet at the Prescott Animal Hospital. Although vets often frequented our ranches to treat cattle and horses, I had not been in the actual animal hospital for decades. When I checked in, the receptionist asked me my dog’s name then I took a seat and waited my turn. After a short time, I heard the receptionist call out: “Gus Kelly!” At first, I was greatly offended when she gave my last name to this dog thinking, he is no relation to me. But after giving it some thought, I realized Gus was fast, very smart and fairly good looking – obviously no relationship.

ABOUT THE AUTHOR: Thomas K. Kelly is a retired attorney who now manages family cattle ranches and works with his wife, Tamra Kelly in her real estate business, Ag Lands Southwest which specializes in the sale of cattle ranches in Arizona and New Mexico. See ranches for sale at www.aglandssw.com