                                   IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


                          DAVID STAMBAUGH,
                            Plaintiff/Appellant,

                                      v.

      DONALD BUTLER, 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. 1 CA-CV 14-0817
                              FILED 8-9-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV 2012-017523
               The Honorable John Christian Rea, Judge

                                AFFIRMED


                                 COUNSEL

Salmon Lewis & Weldon, PLC, Phoenix
By Paul R. Orme, Mark A. McGinnis, R. Jeffrey Heilman
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Aaron Thompson
Counsel for Defendants/Appellees, Donald Butler, Suzette Taylor, Arizona Dept.
of Agriculture and State of Arizona
                      STAMBAUGH v. BUTLER et al.
                          Opinion of the Court



                                 OPINION

Judge Patricia A. Orozco delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen joined, and to which Judge Kenton D.
Jones dissented.


O R O Z C O, Judge:

¶1             David Stambaugh appeals the superior court’s ruling
upholding the recording by Defendants Donald Butler, Suzette Taylor, the
Arizona Department of Agriculture (Department) and the State of Arizona
(collectively, Defendants) of the Eureka Springs Cattle Co. livestock brand.
The Eureka Springs brand is identical to Stambaugh’s brand, but placed in
a different location on the animal. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           Stambaugh is the owner in Arizona of the bar seven brand1
applied to the left hip of his cattle. Eureka Springs owns the bar seven
brand in California applied to the left rib of its cattle. Eureka Springs
wanted to move its cattle from California to Arizona without rebranding its
herd.2 Therefore, Eureka Springs applied to the Department to use the bar
seven brand in Arizona on the left rib.

¶3           According to the record, the Department in the past has
approved requests to record brands that are identical to other recorded
brands, as long as the new application specifies that the brand will be
placed on a different location of the animal (i.e., left or right ribs, hip or
shoulder). When it received Eureka Springs’ brand application, the
Department researched potential conflicts and noted Stambaugh’s existing
bar seven brand. Even though the Eureka Springs brand is identical to
Stambaugh’s, the Department decided to accept Eureka Springs’ brand for
recording because its brand would be placed on a different location;
Stambaugh’s on the left hip of a cow and Eureka Springs’ on the left rib.


1       The appearance of the bar seven brand resembles -7. Stambaugh’s
cattle are located in Eastern Pinal County.

2     After its brand was recorded, Eureka Springs moved its cattle into
Western Graham County.


                                      2
                      STAMBAUGH v. BUTLER et al.
                          Opinion of the Court

The Department also noted the Eureka Springs brand was not so similar to
any other brand on the left rib that the brand could be converted or cattle
could be misidentified. The Department then publicly advertised Eureka
Springs’ request to record its brand.

¶4             After learning of the Eureka Springs application, Stambaugh
filed a protest. The Department denied Stambaugh’s protest and issued a
certificate to Eureka Springs signifying its approval and recording of the
bar seven brand applied on the left ribs of cattle.

¶5             Stambaugh then filed suit challenging the Department’s
recording of Eureka Springs’ bar seven brand, and the parties moved for
summary judgment. The superior court granted the Defendants’ 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 matter
to the Department to conduct a hearing on the brand and the protest.
Stambaugh timely appealed. We have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution, and Arizona Revised Statutes
(A.R.S.) sections 12-120.21.A.1 and -2101.A.1 (West 2016).3

                               DISCUSSION

¶6             We review the grant of summary judgment de novo and view
the evidence in the light most favorable to the party against whom
summary judgment was granted. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12
(2003). We also review issues of statutory construction de novo. Short v.
Dewald, 226 Ariz. 88, 93-94, ¶ 26 (App. 2010). “If a statute’s language is clear
and unambiguous, we apply it without resorting to other methods of
statutory interpretation.” Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268 (1994).
“However, if more than one plausible interpretation of a statute exists, we
typically employ tools of statutory interpretation.” Haag v. Steinle, 227 Ariz.
212, 214, ¶ 9 (App. 2011). Such tools include “the statute’s context, its
language, subject matter and historical background, its effects and
consequences, and its spirit and purpose.” Id. In addition, when “the
legislature has not spoken definitively to the issue at hand, ‘considerable
weight should be accorded to an executive department’s construction of a
statutory scheme it is entrusted to administer.’” Ariz. Water Co. v. Ariz. Dep’t
of Water Res., 208 Ariz. 147, 155, ¶ 30 (2004) (citing Chevron, U.S.A., Inc. v.


3     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


                                       3
                      STAMBAUGH v. BUTLER et al.
                          Opinion of the Court

Nat. Resources Def. Council, Inc., 467 U.S. 837, 844 (1984)). The Department’s
interpretation is not infallible, however, and courts remain the final
authority in an issue of statutory construction. U.S. Parking Sys. v. City of
Phoenix, 160 Ariz. 210, 211 (App. 1989).

I.     Arizona Livestock Branding Statutes

¶7            Pursuant to A.R.S. § 3-1261:

       A. Every person owning range livestock in this state shall
       adopt and record a brand[.]

       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.

                                  ...

       G. 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.

¶8             The Arizona legislature has given the Department “general
supervision over the livestock interests of the state, [including] protect[ing]
the livestock industry from theft.” A.R.S. § 3-1203.A. Livestock brands help
prevent theft by identifying the owners of livestock. See A.R.S. §§ 3-1267.B
(“The appearance upon an animal of the recorded brand of the owner as
shown by the record shall be received in the courts of this state as prima
facie evidence that the animal bearing the brand is the property of the
owner of the recorded brand . . . .”); -1371.1 (“The question of ownership
may be raised . . . [if] [t]he livestock is not branded as required by this
chapter.”).

¶9              The recording of a brand “shall consist of depicting a facsimile
of the brand adopted . . . [and] the place upon the livestock or other animals
where the brand is proposed to be used.” A.R.S. § 3-1262.A. When the
Department approves and records a brand, it issues a registration
certificate, see A.R.S. § 3-1266, which specifies where the brand must be
applied on the animal. The Department is also authorized to issue brand
books, A.R.S. § 3-1268, which identify recorded brands and note where they
are to be applied to their owners’ livestock.


                                        4
                      STAMBAUGH v. BUTLER et al.
                          Opinion of the Court

¶10           To protect brands and the function they serve, the legislature
has criminalized misconduct related to brand usage. For example, it is a
crime to brand “livestock with an unrecorded, cancelled, suspended or
forfeited brand[,]” A.R.S. § 3-1269.A, to brand livestock “with a brand other
than the recorded brand of the owner,” A.R.S. § 3-1304, or to apply a
recorded brand in a location other than that specified on the brand
registration certificate, A.R.S. § 3-1261.G.

II.    Analysis

¶11           The narrow issue the superior court decided is whether the
Arizona livestock branding statutes grant the Department discretion to
consider the location a brand is to be applied on an animal when deciding
if a proposed brand is of the “same design or figure” as another under
A.R.S. § 3-1261.B. Stambaugh contends that “[A.R.S.] § 3-1261.B is a plain
and unambiguous directive from the Arizona Legislature that prohibits the
[Department] from recording duplicate brands with the ‘same design or
figure,’” regardless of where on an animal a brand is to be applied. In
contrast, the Department asserts that, “[g]iven A.R.S. § 3-1261(G), it is at the
very least unclear whether the Legislature intended to allow the
Department to consider a brand’s location in determining whether the
brand consists of the ‘same’ design or figure as an existing brand[.]” We
agree with the Department that the statute is ambiguous.

¶12           In discerning the meaning and significance of the term “same
design or figure” in A.R.S. § 3-1261.B, we cannot disregard the repeated
references in A.R.S. § 3-1261 and surrounding statutes to the significance of
the location at which a brand is approved for placement on the owner’s
livestock. Although Stambaugh argues the first clause of A.R.S. § 3-1261.B
(“No two brands of the same design or figure shall be adopted or
recorded”) establishes the sole basis on which the Department is to decide
whether to approve a brand, other statutes in the same chapter and article
distinguish brands based on their location on livestock. As recited above,
subpart G of the same statute provides that “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’s reference to an “unrecorded brand” indicates
that an owner’s choice of where a brand will be placed on the animal is part
of the brand that the Department ultimately accepts and records.

¶13           Other statutes in the same chapter and article relating to
branding also undercut Stambaugh’s contention that we must read the first
clause of A.R.S. § 3-1261.B in isolation. For example, A.R.S § 3-1262.A
requires that the record of a brand must contain a designation of where the


                                       5
                       STAMBAUGH v. BUTLER et al.
                           Opinion of the Court

brand is to be placed on livestock. Under A.R.S. § 3-1267.B, a brand must
be applied to its recorded location to constitute prima facie evidence of
ownership of the livestock. Sections 3-1262.A, -1267.B and -1261.G mandate
that the designated location at which an owner applies a brand is a legally
enforceable requirement that, along with the design and figure of the brand,
combine to create the brand that the Department may accept for recording.4
Additionally, the second clause of A.R.S. § 3-1261.B (“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”) expressly
grants the Department discretion in determining whether a proposed brand
conflicts with one already recorded. When read in context to achieve a
consistent interpretation, these statutes make clear that the Department
may consider a brand’s location when determining if duplicate brands are
“of the same design or figure.”

¶14             Our interpretation is consistent with the purpose of the
Arizona livestock branding statutes. The purpose of livestock branding is
to identify ownership of livestock and thereby help prevent their theft. See
A.R.S. §§ 3-1267.B, -1203.A. Therefore, the statutes do not allow the
Department to approve conflicting brands of the “same design or figure”
because such brands would not then identify livestock ownership and
prevent theft. It follows, then, that the Department has discretion to accept
and record a brand that is similar to another already approved brand, as
long as the new brand can identify livestock ownership and prevent theft.
See Hoyle v. Super. Ct., 161 Ariz. 224, 227 (App. 1989) (“What a statute
necessarily implies is as much a part of the statute as what the statute
specifically expresses.”). A brand that is similar to another can be rendered
distinctive if it is required to be applied in a different location than the other.
Therefore, the purpose of the statutes is achieved if the Department can
consider location when determining whether a proposed brand is of the
same “design or figure” as a brand already recorded.



4      Brand location must also be designated on numerous documents
incidental to the administration of brands. For instance, location is
designated on brand applications and brand certificates, advertisements of
proposed brands, bills of sale for brands, brand lease forms, and
instruments of distribution if the brand is part of decedent’s estate.
Livestock self-inspection certificates also identify the brand’s location. See
Arizona Administrative Code R3-2-702.C.1.g.




                                        6
                       STAMBAUGH v. BUTLER et al.
                           Opinion of the Court

¶15            Furthermore, evidence in the record indicates that the
Department has long interpreted the branding statutes to allow it to
consider the location at which brands are to be applied when it determines
whether a proposed brand is of the same design or figure as a recorded
brand.5 “In circumstances like these, in which the legislature has not
spoken definitively to the issue at hand, ‘considerable weight should be
accorded to an executive department’s construction of a statutory scheme
it is entrusted to administer.’” Ariz. Water Co., 208 Ariz. at 155, ¶ 30 (quoting
Chevron, U.S.A., Inc., 467 U.S. at 844). This is particularly true when, as here,
the Department’s construction of the statute is “long continued,” see City of
Mesa v. Killingsworth, 96 Ariz. 290, 296 (1964); Long v. Dick, 87 Ariz. 25,
28-29 (1959); and when a contrary outcome would upset settled
understandings, see Dupnick v. MacDougall, 136 Ariz. 39, 44 (1983) (“Where
there has been such a background of acquiescence in the meaning of a law
unless manifestly erroneous, we will not disturb it.”); Bohannan v. Corp.
Comm’n, 82 Ariz. 299, 382 (1957) (“Uniform acquiescence of meaning, if it is
not manifestly erroneous, will not be disturbed, at least in cases of doubt,
for injustices are likely to result after a long period of time during which
many rights will necessarily have been acquired.”); Colonial Life & Acc. Ins.
v. State, 184 Ariz. 533, 535 (App. 1995) (“[I]f an executive office that
administers a statute interprets it a certain way and acquiesces in that
meaning for many years, the appellate courts will not disturb that
interpretation unless it is manifestly erroneous.”). Deposition testimony
and brand books in the record demonstrate that, for many decades, the
Department has exercised discretion to approve duplicate brands as long
as they are required to be applied in different locations, and we accord
considerable weight to that construction of the statutes. Based on the record
before us, to now invalidate the manner in which the Department has




5       Contrary to the dissent’s contention, the statute’s ambiguity is not
created by longstanding “misapplication” by the Department. The
ambiguity exists by virtue of the language of A.R.S. § 3-1261 and related
statutes, read in context with each other. Accordingly, we must look, inter
alia, to the Department’s longstanding construction of the statutes. To do
otherwise might render invalid hundreds of brands the Department
accepted for recording over the past several decades based on their owners’
promises to apply the brands in different locations than prior similar
recorded brands were to be applied.




                                       7
                     STAMBAUGH v. BUTLER et al.
                         Opinion of the Court

construed the statutes over many decades would cause havoc with untold
numbers of recorded brands.6

¶16           Stambaugh argues that A.R.S. § 3-1261.G has no bearing on
subsection B because the provisions are not codependent and do not
reference each other, and because A.R.S. § 3-1262.A is “simply a procedural
directive.” We interpret a statute’s various provisions in context with each
other to achieve a consistent interpretation. Koss Corp. v. Am. Express Co.,
233 Ariz. 74, 79, ¶ 12 (App. 2013). Thus, although subsections A and G do
not expressly reference each other, we must construe them together to
achieve consistency. See id. Construed in that manner, A.R.S. § 3-1261.G
bears on subsection B by suggesting that a brand’s location is a
distinguishing component of a recorded brand.

¶17           Our interpretation also does not “render[] the first and
primary phrase of [A.R.S. § 3-1261.B] meaningless and nonoperational,” as
Stambaugh asserts. Read as a whole, the statutes prohibit the Department
from approving brands of the same design or figure because such brands
do not identify livestock ownership and prevent theft. See A.R.S.
§§ 3-1261.B; -1267.B; -1203.A. Two identical brands applied at the same
location on an animal are “of the same design or figure,” and are prohibited
because they cannot identify ownership or prevent theft. Id. But the
converse also is true: the Department’s longstanding practice of accepting
similar brands that are applied in different locations on their owners’
livestock serves the statutes’ purpose of identifying ownership and
preventing theft.

                                CONCLUSION

¶18          For the foregoing reasons, we affirm the superior court’s
judgment.



J O N E S, Judge, dissenting:

¶19          The unambiguous language of a statute is not made
ambiguous simply by virtue of its longstanding misapplication. In Arizona,
persons owning range livestock are required to adopt and record a brand
with the Arizona Department of Agriculture (the Department), which they

6      Brand books from as early as 1908 list brands accepted for recording
that are similar in appearance but approved for application at different
locations on their owners’ livestock.


                                     8
                      STAMBAUGH v. BUTLER et al.
                          Jones, J., Dissenting


may then affix to their livestock to provide evidence of ownership. A.R.S.
§§ 3-1261(A), -1267(B), -1371(1), (4). Arizona Revised Statutes (A.R.S.)
§ 3-1261(B) unequivocally states, “[n]o two brands of the same design or
figure shall be adopted or recorded.”

¶20            Here, the parties agree the bar seven brands issued by the
Department to both Stambaugh and Eureka Springs are identical; Eureka
Springs argues, however, its placement of the brand on the left rib rather
than the left hip of its livestock makes the brand different in “design or
figure” within the meaning of A.R.S. § 3-1261(B). The fact that other
portions of A.R.S. § 3-1261 regulate the location of a brand does not modify
the unambiguously plain and ordinary language of A.R.S. § 3-1261(B). See
SFPP, L.P. v. Ariz. Dep’t of Revenue, 210 Ariz. 151, 155, ¶ 19 (App. 2005)
(“When a term is undefined by the legislature, we strive to apply the plain
and ordinary meaning of the words used unless a contrary intent is
expressed by the legislature.”) (citing State v. Hoggatt, 199 Ariz. 440, 443,
¶ 8 (App. 2001)). We look to an established, widely respected dictionary to
deduce a word’s plain and ordinary meaning. See Sierra Tucson, Inc. v. Pima
Cnty., 178 Ariz. 215, 219 (App. 1994) (citing State v. Wise, 137 Ariz. 468, 470
(1983)). The phrase “design or figure” excludes consideration of placement;
both “design” and “figure” are defined to include only a pattern, shape, or
pictorial representation. See The American Heritage Dictionary of the
English Language 491, 656 (5th ed. 2011) (defining “design” as “a drawing
or sketch,” “[a] graphic representation,” or “[a]n ornamental pattern”; and
defining “figure” as “[a] written or printed symbol representing something
other than a letter,” “[a] pictorial or sculptural representation,” or “[a]n
illustration printed from an engraved plate or block”).

¶21           Those statutes regulating placement of the brand are not
rendered meaningless by the exclusion of a brand’s location from the
analysis of whether two brands are “of the same design or figure.” The
requirement that a particular brand be placed in a specific location provides
an additional measure of protection to the owner of the livestock by
requiring, first, the application of a particular, unique design previously
approved by and recorded with the Department, and second, that the
particular, unique design be applied to the animal in a specific location.7

7      For this reason, I disagree with the majority’s assertion that its
interpretation furthers the purpose of Arizona’s livestock branding statutes
— “to identify ownership of livestock and thereby help prevent their theft.”
See supra ¶ 14. The majority merges two separate and meaningful



                                      9
                       STAMBAUGH v. BUTLER et al.
                           Jones, J., Dissenting


The dual requirements also assist anyone seeking to identify the owner of
livestock by directing him to a specific location for the evidence of
ownership.

¶22            Additionally, although the Department is granted some
discretion in determining whether brands are “of the same design or
figure,” that discretion has been narrowly defined by the legislature.
Specifically, the Department may exercise its discretion only to “reject and
refuse to record a brand or mark similar to or conflicting with a previously
adopted and recorded brand or mark.” A.R.S. § 3-1261(B). This limited
discretion does not allow the Department to accept and record identical
brands simply because they are to be placed in different locations. Instead,
it only allows the Department to be more restrictive than otherwise stated,
and reject brands that are not even necessarily “the same,” but merely
“similar.”

¶23            The Department is not afforded deference where its
implementation of legislative directives contravenes their clear language.
See Ariz. Water Co. v. Ariz. Dep’t of Water Res., 208 Ariz. 147, 155, ¶ 31 (2004)
(noting judicial deference is granted to an administrative agency’s
interpretation of a statute where the “statutory language is . . . not
dispositive”); Kobold v. Aetna Life Ins., 239 Ariz. 259, 262, ¶9 (App. 2016)
(noting an agency’s interpretation is granted deference only if “the statute
is silent or ambiguous with respect to the specific issue” and “the agency’s
interpretation is reasonable”) (first quoting Chevron U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 843 (1984); then citing United States v. Mead
Corp., 533 U.S. 218, 229 (2001)); Dewitt v. Magma Copper Co., 16 Ariz. App.
305, 308 (1972) (holding a “prior [administrative] construction is not
determinative [where] the statutes contain a sufficiently clear statement of
legislative intent”). Indeed, “our deference to tradition cannot blind us to
the fact” that, now that the Department’s practice has been challenged, it
does not conform to the statute. Colonial Life, 184 Ariz. at 535; see also Golder
v. Dep’t of Revenue, State Bd. of Tax Appeals, 123 Ariz. 260, 264 (1979) (“No
case law exists, nor any logic which would support the perpetuation of
faulty administrative proceedings merely for the sake of uniformity.”).
Because the statutory language is plain and unambiguous, we must apply
it as written. Tobel v. State, Ariz. Dep’t of Pub. Safety, 189 Ariz. 168, 174 (App.

components of livestock identification — the unique brand and its specific
location — and then ultimately disregards the requirement that the brands
be unique to the owners, leaving only the location of the brand to fulfill the
statutes’ purpose.


                                        10
                      STAMBAUGH v. BUTLER et al.
                          Jones, J., Dissenting


1997) (quoting Chaparral Dev. v. RMED Int’l, Inc., 170 Ariz. 309, 311 (App.
1991)). The Department’s contrary interpretation of an unambiguous
statute, while long-held, is manifestly erroneous.

¶24           Under the plain and unambiguous language of A.R.S.
§ 3-1261(B), the Department did not have discretion to approve Eureka
Springs’ brand — the bar seven — because its “design or figure” is identical
to Stambaugh’s previously recorded bar seven brand. I have no doubt that
both the Department and the cattle growers are capable of distinguishing
between a cow with a bar seven branded on its left hip and a cow with a
bar seven branded on its left rib. But that is not the question presented here.
The language of the statute simply does not permit the Department to issue
the identical bar seven brand to two entities. And while everyone but
Stambaugh may be comfortable with a course of practice at odds with the
language of the statute, it is solely within the purview of the legislature,
rather than the courts, to correct the discord between the language of the
statute and its longstanding, but inappropriate, application.

¶25           The Department has violated the clear and unambiguous
language of A.R.S. § 3-1261(B) by approving Eureka Springs’ application
for a bar seven brand identical to that previously approved and recorded
for Stambaugh’s use. I would reverse the order of the superior court and
direct the entry of judgment in favor of Stambaugh.




                                   :AA




                                      11
