In a case decision that will no doubt be of interest to my friends and clients in the cattle industry, the Arizona Supreme Court has just ruled that the Department of Agriculture can’t record a livestock brand that is identical to a previously recorded brand, even if the new brand is to be placed in a different location on the livestock.
I don’t know anything about the factual background of the case. I only know what the Supreme Court’s opinion says. It seems that the relevant facts are pretty simple. The “bar seven” brand had already been recorded in Arizona when the Department of Agriculture allowed someone else to record the same brand. The Department said they could allow the same brand to be recorded because it was placed in a different location on the livestock.
When the Department published the request to record the “new” bar seven brand, the owner of the previously recorded bar seven brand protested. The Department, the Superior Court, and the Court of Appeals all rejected the protest on the theory that the different placement meant that the two brands weren’t the same.
The relevant law says this:
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.
Nathan B. Hannah, attorney
Somehow, the Department convinced the Superior Court and the Court of Appeals that the Department had the discretion to consider the location of the brand in determining whether or not it was the “same design or figure” as the previously recorded brand. The Supreme Court made short work of that argument and ruled that as a matter of statutory interpretation, the law isn’t ambiguous and couldn’t be interpreted to include the location of the brand as an element of the brand’s “design or figure.” The location of the brand is significant for other purposes, but isn’t relevant in deciding whether or not one brand is “the same design or figure” as another.
The Department also contended that the courts should defer to the Department’s interpretation of the law based on the Department’s expertise. The Supreme Court summarily rejected that argument, reasoning that when the legislature’s intent is clear (as it is in the law in question here), the Department’s expertise isn’t needed to interpret the law.
So the Department lost, and had to pay the existing brand owner’s legal fees. That’s because there’s another law that says when a citizen successfully sues a state agency to force the agency to do its job, the state has to pay the citizen’s legal fees.
The end result is that the owner of the bar seven brand had to go all the way to the Arizona Supreme Court to vindicate a principle that seemed pretty clear already: you can’t record a brand that’s the same as a previously recorded brand, no matter where the brand is placed.
The case is Stambaugh v. Killian. The Supreme Court issued its opinion on August 3.
An Old Scam That Keeps Coming Back:
I’ll Trade My Check For Yours (And You Won’t Find Out Until It’s Too Late That Mine Is No Good)
A recent item on the Tucson News Now web site describes another instance of an old, and widespread, scam.
The scam goes like this: the scammer sends the victim a check for more than the victim expected. The scammer tells the victim to deposit the check in the victim’s account and send back the difference. By the time the victim’s bank tells the victim that the scammer’s check is no good, the scammer has cashed the check the victim sent to the scammer.
There are many minor variations, but the theme is always the same. The victim doesn’t question the scammer’s motive for sending a larger amount than the victim expected. The scammer, of course, has a ready answer if the victim asks why the scammer sent a larger amount. Frequently the scammer will give the victim the (bogus) reason up front.
This scam usually depends on the scammer’s check looking genuine enough to fool the victim, but even if the check looks perfectly genuine, that doesn’t mean it’s not fake, or from a closed or nonexistent account or bank, etc. Even something that looks like a cashier’s checks can be fake.
I have said it before: stop for just a moment and ask yourself if what the other person is asking you to do makes sense. If not, don’t do it until you have verified that it’s legit.
Nathan B. Hannah is a Shareholder in the Tucson office, and practices in the areas of estate planning and administration, real estate, and commercial transactions. He is also a noted blogger, and you can find more of his articles on his private blog,
Contact Attorney Hannah: nhannah@dmyl.com or 520/ 322-5000
This communication is designed to bring legal developments of interest to the attention of our clients and others. It should not be relied upon as a substitute for specific legal advice in a particular matter. For further information on any of the subjects discussed, or for legal advice in connection with any particular matter, please contact us.
