Folks, given recent events I wanted to take some time to clarify the law that applies in situations involving strays in an effort to help you understand “due process” in this matter.
Let’s begin by laying ground work – definitions – per Arizona Revised Statutes (ARS). I have excerpted some language when I felt it wasn’t relevant to this post. The citations are there so that you may look up the full text yourself if you wish.
ARS 3-1201. Definitions
In this chapter, unless the context otherwise requires:
4. “Equine” means horses, mules, burros and asses.
5. “Livestock” means cattle, equine, sheep, goats and swine, except feral pigs.
8. “Range” means every character of lands, enclosed or unenclosed, outside of cities and towns, upon which livestock is permitted by custom, license or permit to roam and feed.
9. “Range livestock” means livestock customarily permitted to roam upon the ranges of the state, whether public domain or in private control, and not in the immediate actual possession or control of the owner although occasionally placed in enclosures for temporary purposes.
10. “Ratite” means ostriches, emus, rheas and cassowaries.
3-1401. Definition of stray animal
“Stray animal” as used in this article means livestock, bison or ratites whose owner is unknown or cannot be located, or any such animal whose owner is known but permits the animal to roam at large on the streets, alleys, roads, range or premises of another without permission, except that this section does not apply to livestock where the principles of a federal permit, federal allotment or federal lease are in dispute.
So to reiterate the point, a stray may include any of and only the following: cattle, horses, mules, burros, asses, sheep, goats, and swine except for feral pigs, bison, ostriches, emus, rheas and cassowaries.
Now how is this supposed to work on a day-to-day basis? 3-1402 provides the meat of the situation.
3-1402. Holding and sale of stray animals; repossession before and after sale; nonliability of state
A. Any person who finds a stray animal may attempt to locate and, if located, notify the owner where the animal may be found. If the owner is unknown or cannot be located, or the person elects not to locate or notify the owner, the person shall notify the department and the department shall follow procedures pursuant to this section.
So John/Jane Q Public may try to notify the owner, or s/he shall notify the AZ Dept of Ag when s/he locates stray. Then what?
LSO (livestock officer or inspector) notifies the owner to take immediate possession. But if no owner, LSO holds for 7 days, 14 if requested, including posting notices, all of which is followed by an auction.
B. A livestock officer or inspector who finds or is notified of a stray animal shall attempt to locate the owner and, if located, notify the owner where the animal may be found. If the owner does not take immediate possession of the animal, or if the owner or claimant is unknown or cannot be located, the livestock officer or inspector shall hold the stray animal for at least seven days, but shall hold the stray animal up to fourteen days at the request of any person or organization, and sell it at public auction to the highest bidder for cash, after giving at least five days’ notice of the sale.
Notification to the public of the auction is spelled out in Section C along with details of what, when, where concerning the auction.
C. The department shall cause notice to be posted in three public places in the justice precinct where the stray animal is held stating:
1. That the stray animal will be sold at public auction for cash to the highest bidder.
2. The location where the stray animal will be held and the location where the animal will be sold.
Statute also makes allowances for situations where an owner comes forward to claim the stray during the impound period (Section D)
D. The owner of a stray animal may take possession of the animal at any time prior to sale by proving ownership and paying the inspection fee and all expenses incurred in keeping and caring for the animal.
But if no owner comes forward, the stray sells and the buyer is provided a certificate. However if the previous owner does come forward afterward, he may reclaim the animal by paying the purchase price plus ensuing expenses.
E. If the owner of the stray does not claim the animal before the day of sale, or if the owner is unknown or cannot be located, the livestock officer or inspector shall sell the animal pursuant to the notice, and shall deliver an invoice of sale or a livestock inspection certificate to the purchaser. The owner of an animal sold may take possession of it at any time before the purchaser sells it by paying to the purchaser the purchase price paid at the sale, together with the expense of keeping and caring for the animal from the date of sale to the time the owner takes possession of the animal.
Section F involves animals going through livestock markets, so it’s not really pertinent to our discussion and not included here.
Section G spells out that we can contract for care & feeding of the animals in our custody (especially useful since we have no facilities for such operations.)
G. The director may contract with any person to handle, feed and care for stray animals taken into custody under this section. This state is not liable for the injury or death of any person or stray animal or damage to property due to performance of the contract.
The remaining sections have to do with providing documentation of the sale and handling the proceeds from the sale.
3-1403. Report by livestock officer or inspector; preliminary disposition of proceeds of sale
A. On making the sale as provided by section 3-1402, the livestock officer or inspector shall notify the division of the name of the purchaser, the time and place of sale, the amount for which the animal was sold and a description of the animal showing the marks and brands, if any, or other identifying marks and shall pay to the department the net proceeds realized at the sale.
B. The department shall place the amount realized from the sale of stray animals in the livestock custody trust fund established by section 3-1377.
3-1404. Payment of proceeds of sale to owner of stray
Upon making satisfactory proof of ownership of any animal sold as a stray within one year after the sale, the department shall pay to the owner of the animal the net proceeds realized at the sale less any expenses incurred.
Recapping “due process”:
Livestock, bison & ratites “out of place” or if owner is unknown or can’t be located are by definition stray.
Strays must be impounded and notices of such posted.
If no owner comes forward to claim (and provide some proof), statute dictates that strays be sold for cash at public auction to the highest bidder.
In years past, I’ve done this while leaning on the fence that kept the horses in. There also have been times when I’ve had personnel conduct the auction where the animal was impounded and cared for. And in many situations the only attendee at the auction was the person contracted to provide feed and care.
The highest bidder may have offered $1.00 or $10.00. Or there may not have been a bid at all. But in this manner we have fulfilled our statutory obligations. The stray can now lawfully have a new owner.
No language that I’m aware of provides for the state to take property from one person and give to another person. For AZ Dept of Ag personnel to take a stray into custody and then deliver it to another party with an understanding of ownership being attached because of convenience or expediency is subverting due process as defined in the stray statutes. And that certainly won’t pass my understanding of my obligations and duties of this job.
That was a long one! But I hope the picture is a little clearer for folks. And remember to enjoy the ride!