David Stambaugh v. Mark Killian

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

DAVID STAMBAUGH,

Plaintiff/Appellant,

v.

MARK KILLIAN, ACTING IN HIS CAPACITY AS DIRECTOR OF THE ARIZONA DEPARTMENT OF

AGRICULTURE; ARIZONA DEPARTMENT OF AGRICULTURE, AN AGENCY OF THE STATE OF

ARIZONA; SUZETTE TAYLOR, ACTING IN HER CAPACITY AS STATE BRAND CLERK AT THE

ARIZONA DEPARTMENT OF AGRICULTURE; STATE OF ARIZONA; AND EUREKA SPRINGS

CATTLE CO., LLC, AN ARIZONA LIMITED LIABILITY COMPANY AND REAL PARTY IN INTEREST,

Defendants/Appellees.

No. CV-16-0217-PR

Filed August 3, 2017

Appeal from the Superior Court in Maricopa County

The Honorable John Christian Rea, Judge

No. CV2012-017523

REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One

240 Ariz. 353 (App. 2016)

VACATED

COUNSEL:

Paul R. Orme, Mark A. McGinnis (argued), R. Jeffrey Heilman, Salmon Lewis & Weldon,

PLC, Phoenix, Attorneys for David Stambaugh

Mark Brnovich, Arizona Attorney General, Kathleen P. Sweeney, Senior Appellate

Counsel, Christopher William McCormack (argued), Assistant Attorney General,

Phoenix, Attorneys for Mark Killian, the Arizona Department of Agriculture, Suzette

Taylor, and the State of Arizona

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STAMBAUGH v. KILLIAN, et al.

Opinion of the Court

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE

BALES, VICE CHIEF JUSTICE PELANDER, JUSTICES TIMMER, BOLICK, and GOULD,

and JUDGE PETERSON joined. JUSTICE BOLICK filed a concurring opinion.

JUSTICE BRUTINEL, opinion of the Court:

¶1 Arizona Revised Statute § 3-1261(B) provides that no two brands of the

same design or figure shall be adopted or recorded. Nonetheless, the Arizona

Department of Agriculture (“Department”) allowed Eureka Springs to record a “bar

seven” brand (—7), even though it was identical to a previously recorded brand owned

by David Stambaugh, because it was placed on a different location on the animals. We

hold that the plain language of the statute precludes the Department from recording “two

brands of the same design or figure” regardless of their location.

I. BACKGROUND

¶2 Eureka Springs planned to move its bar-seven branded cattle from

California to Arizona. Rather than re-brand the cattle, it applied to the Department to

use the bar seven brand in Arizona. Stambaugh had previously recorded an identical

brand in Arizona. Eureka Springs’ cattle, however, are branded on their left rib, and

Stambaugh’s cattle are branded on their left hip. Because the brands are identical, the

Department’s brand clerk twice rejected Eureka Springs’ application but was eventually

overruled by her supervisors. Because the brands were placed on different locations on

the cattle, the Department approved Eureka Springs’ brand.

¶3 When the Department publicly advertised Eureka Springs’ request to

record its brand pursuant to A.R.S. § 3-1261(C), Stambaugh filed a protest. The

Department rejected the protest and issued a certificate to Eureka Springs approving and

recording its bar seven brand applied to the left rib.

¶4 Stambaugh sued the Department, and both parties moved for summary

judgment. The superior court granted the Department’s motion in part, explaining that

“A.R.S. § 3-1261 and related statutes give the [Department] and its employees discretion,

as a matter of law, to consider the location of a brand on an animal in determining

whether two brands are of the same design or figure.” The superior court remanded the



Justice John R. Lopez has recused himself from this case. Pursuant to article 6, section

3, of the Arizona Constitution, the Honorable Michael D. Peterson, Presiding Judge of the

Graham County Superior Court, was designated to sit in this matter.

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Opinion of the Court

matter to the Department to conduct an administrative hearing on the brand and the

protest.

¶5 The court of appeals affirmed, holding that A.R.S. § 3-1261(B) is ambiguous.

Stambaugh v. Butler, 240 Ariz. 353, 356 ¶ 11, 358 ¶ 18 (App. 2016). Because the brands are

in separate locations, the court reasoned they are not identical, and the Department

therefore did not violate § 3-1261 when it approved Eureka Springs’ brand. See id. at 357

¶ 14. One judge dissented, reasoning that the phrase “design or figure” is unambiguous

and “excludes consideration of placement; both ‘design’ and ‘figure’ are defined to

include only a pattern, shape, or pictorial representation.” Id. at 358 ¶ 20 (Jones, J.,

dissenting).

¶6 We granted review because this case presents an issue of statewide

importance that is likely to recur. We have jurisdiction pursuant to article 6, section 5(3),

of the Arizona Constitution and A.R.S. § 12-120.24.

II. DISCUSSION

A. Standard of Review

¶7 We review the interpretation of statutes de novo. Wade v. Ariz. St. Ret. Sys.,

241 Ariz. 559, 561 ¶ 10 (2017). “Our primary goal is to effectuate the legislature’s intent.”

Id. “If the statute is subject to only one reasonable interpretation, we apply it without

further analysis.” Id. (citation omitted). Words in statutes should be read in context in

determining their meaning. See J.D. v. Hegyi, 236 Ariz. 39, 40–41 ¶ 6 (2014). In construing

a specific provision, we look to the statute as a whole and we may also consider statutes

that are in pari materia — of the same subject or general purpose — for guidance and to

give effect to all of the provisions involved. See David C. v. Alexis S., 240 Ariz. 53, 55 ¶ 9

(2016).

B. A.R.S. § 3-1261(B) is unambiguous and does not include location.

¶8 Section 3-1261(B) states, “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.”

¶9 The court of appeals majority determined that the statute is ambiguous and

held that it was within the Department’s discretion to consider a proposed brand’s

location on an animal to decide if it was the same “design or figure” as an already

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STAMBAUGH v. KILLIAN, et al.

Opinion of the Court

recorded brand. Stambaugh, 240 Ariz. at 356–58 ¶¶ 11–17. We disagree. The statutory

language, when considered in context and in relation to the statutory scheme, is

unambiguous and does not refer to the location of the brand.

¶10 We start with the statutory language. Because the statute does not define

“design or figure” we use the common meaning of those words. See State v. Pena, 235

Ariz. 277, 279 ¶ 6 (2014). “Design” is defined as “[a] drawing or sketch”; “[a] graphic

representation, especially a detailed plan for construction or manufacture”; and “[a]n

ornamental pattern.” Design, American Heritage Dictionary of the English Language 491

(5th ed. 2011). “Figure” is defined as “[a] written or printed symbol representing

something other than a letter, especially a number”; “[t]he outline, form, or silhouette of

a thing”; and “[a] pictorial or sculptural representation, especially of the human body.”

Figure, American Heritage Dictionary of the English Language 656 (5th ed. 2011). Based

on these definitions, the phrase “no two brands of the same design or figure” does not

refer to location as part of its meaning.

¶11 We next look to the statute as a whole to determine whether the provision

is subject to more than one reasonable interpretation. The Department, citing State v.

Sweet, 143 Ariz. 266, 269 (1985), posits that a statute may be found to be ambiguous if

there is uncertainty concerning the meaning of its terms or its scope when all its

provisions are examined. But here, the remaining provisions of the statute confirm that

subsection (B) can only reasonably be interpreted as barring the recording of two brands

of the same design or figure, even in different locations.

¶12 Subsection (G) of the statute provides, “It is unlawful to apply a recorded

brand in any location on an animal except as specified on the brand registration

certificate. The application of a brand in any other location is the equivalent of the use of

an unrecorded brand.” A.R.S. § 3-1261(G). Subsection (G) recognizes a distinction

between a brand and its location as specified on the registration. Reading “design or

figure” to incorporate location would conflate that distinction.

¶13 The Department unconvincingly argues otherwise. The Department

contends that subsection (G) requires this Court to interpret a brand’s design or figure as

including its proposed location. But subsections (B) and (G) serve different functions.

Subsection (B) refers to adopting and recording a brand. Adopting and recording a brand

is the province of the Department, and thus (B) governs the exercise of the Department’s

authority. Subsection (G), on the other hand, refers to applying a recorded brand.

Although the Department records brands, the livestock owner applies them, and the

owner, not the Department, is subject to criminal liability for a misapplication.

Subsection (G) is a directive to the livestock owners, not the Department. The limitation

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STAMBAUGH v. KILLIAN, et al.

Opinion of the Court

on brand placement by the owner in subsection (G) does not expand the limitation on the

Department’s authority to approve designs or figures under subsection (B).

¶14 Additionally, if location were included in “design or figure,” the second

sentence of subsection (G) would be superfluous. See City of Tucson v. Clear Channel

Outdoor, Inc., 209 Ariz. 544, 552 ¶ 31 (2005) (“Whenever possible, we do not interpret

statutes in such a manner as to render a clause superfluous.”). If the Department’s

interpretation were correct, placing a brand in a location other than the one specified on

the certificate would not be “the equivalent of the use of an unrecorded brand” — it

would be an unrecorded brand. Thus, this language in (G) would be unnecessary.

Equating a misapplied brand to an unrecorded brand, rather, serves the purpose of

putting ranchers on notice that placing a brand in a location other than the one specified

leads to the same criminal consequences as using an unrecorded brand. See A.R.S. § 3-

1269(A) (“A person who knowingly brands livestock with an unrecorded . . . brand is

guilty of a class 3 misdemeanor.”).

¶15 The court of appeals reasoned that “location” should be read into

subsection (B) because the surrounding subsections reference location. Stambaugh, 240

Ariz. at 356 ¶ 12. But under traditional methods of statutory interpretation, the opposite

is true — the fact that the legislature intentionally used the word “location” in other parts

of the statute and omitted it from subsection (B) suggests that location was not meant to

be part of subsection (B). City of Flagstaff v. Mangum, 164 Ariz. 395, 398 (1990) (“Where

the legislature uses a term within one statute and excludes it from another, the term

usually will not be read into the provision from which it was excluded.”).

¶16 In addition to the language of § 3-1261 itself, the statutory scheme otherwise

indicates that “design or figure” does not encompass location. A related statute, A.R.S.

§ 3-1262(A), which regulates the recording of brands and earmarks, reflects that a brand’s

location is distinct from its design or figure. Section 3-1262(A) states in pertinent part:

Recording shall consist of depicting a facsimile of the brand adopted, and a

diagram of the earmarks, together with an entry of the name, residence,

telephone number and post office address of the person adopting the brand

and earmarks, the date recorded, the place upon the livestock or other animals

where the brand is proposed to be used, the kind of animals upon which the

brand and earmark are proposed to be used, and a general designation and

statement of the location of the range whereon such animals are permitted

to range.

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STAMBAUGH v. KILLIAN, et al.

Opinion of the Court

A.R.S. § 3-1262(A) (emphasis added). If “location” was included in “design or figure,”

there would be no need to separate out the depiction of “a facsimile of the brand,” which

must have a unique “design or figure,” from “the place upon the livestock or other

animals where the brand is proposed to be used.”

¶17 Because the meaning of § 3-1261(B) is plain, based on the statute as a whole

and its context within the statutory scheme, we do not resort to other canons of statutory

interpretation. See State v. Christian, 205 Ariz. 64, 66 ¶ 6 (2003). The statute clearly

provides that a brand with an identical design or figure may not be recorded.

¶18 Nonetheless, we address several additional arguments asserting the

ambiguity of the statute. The Department argues that when subsection (B) grants it

“discretion to refuse to record a brand that is similar to a previously recorded brand, the

statute necessarily also gives [the Department] discretion to record a brand that it

determines is similar to, but sufficiently distinguishable from, a previously recorded

brand to fulfill” the purposes of § 3-1261 in identifying livestock ownership and

preventing livestock theft. The Department asserts that this grant of discretion also

allows it to record an identical brand sufficiently distinguishable because of its location.

But even if we accept the Department’s contention that this language allows it to approve

similar brands, because neither “design” nor “figure” refers to location, approval of an

identical design in a different location is not “similar”; it is the same, in violation of the

statute.

¶19 Contrary to the Department’s argument, reading “design or figure” to not

include location does not render other provisions within A.R.S. § 3-1261 moot.

Mandating the location serves other useful functions. As Stambaugh argued,

“[E]xclusive brand designs serve to identify the owner of the brand, while monitoring the

location of these brands assists the [Department] with identifying problematic brands,

which may be unique in design but lead to misidentification.”

¶20 Furthermore, location can also serve as protection against theft. Requiring

ranchers to specify the location of their brands makes it more difficult for a thief to modify

or replace a valid brand because the thief must pass what effectively is a two-prong

security test: a matching design and a matching location. Even if the thief is able to

modify one brand design into another, it must still be in the required location.

Additionally, specifying the location of the brand helps the Department and other

ranchers know where to look to be able to quickly identify an animal’s owner. In other

words, the location requirement serves valuable functions without being part of the

“design or figure” of the brand itself.

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STAMBAUGH v. KILLIAN, et al.

Opinion of the Court

C. Deference to Agency Interpretation.

¶21 The Department argues that we should defer to its interpretation of the

statute based on its expertise. Because the legislature has directly and clearly spoken to

the question at issue, this Court owes no deference to the Department’s interpretation.

See Wade, 241 Ariz. at 563 ¶ 21 (refusing to give weight to an agency’s interpretation of a

statute within its expertise when the legislature explicitly addressed the matter at issue

and this Court was “able to ascertain legislative intent by applying interpretive

principles”).

¶22 We note, however, that contrary to the court of appeals’ assertion, giving

the statute its plain meaning is unlikely to result in mass confusion in the cattle industry.

See Stambaugh, 240 Ariz. at 357 ¶ 15 n.5 (expressing concern that not reading location into

“design or figure” might invalidate hundreds of brands). At oral argument, we

questioned the parties at length about the Department’s practices. Despite the

Department’s claim of its “longstanding interpretation,” it could find only thirty-two

instances of duplicate brands out of 10,000 registered brands. Further, there was no

written policy at the time relevant here, and during the time period when there was a

written policy, it forbade identical brands.

¶23 The Department’s policy manuals from 1992 to 1998 state, “NO identical

brands are accepted for recording.” (emphasis in original). The manuals also read, “We

do not record a brand which conflicts with a recorded brand. This is a brand which

resembles a recorded brand or could, with slight changes, be changed into that brand,

especially if on the same side of the animal.” (emphasis added). According to its own

manuals, the Department’s policy did not even allow for similar looking (let alone

identical) brands on the same side of the animal. Rejecting identical brands in different

locations is unlikely to result in revocation of large numbers of existing brands.

III. CONCLUSION

¶24 We hold that A.R.S. § 3-1261(B) is unambiguous and precludes the

Department from adopting or recording identical brands. We reverse the superior court’s

judgment and vacate the court of appeals’ opinion. We remand to the superior court with

instructions to grant summary judgment in favor of Stambaugh. Stambaugh is awarded

his reasonable attorney fees incurred in this Court pursuant to A.R.S. § 12-2030, upon

compliance with ARCAP 21.

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STAMBAUGH v. KILLIAN, et al.

BOLICK, J., Concurring

BOLICK, J., concurring:

¶25 I join entirely the Court’s analysis and outcome. In addition to other

arguments rejected by the Court, the Department urged us to apply Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and defer to its

administrative expertise in construing the statute. I write separately only to note that this

Court has never expressly considered whether Chevron or its progeny establish standards

for administrative deference under Arizona law. I trust that, to the contrary, our

constitutional separation of powers remains vibrant, notwithstanding the extent to which

the United States Supreme Court has eroded it in the federal context. See Gutierrez-

Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch, J., concurring).

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