We live in the area known as the “Rio Verde Foothills” or “North Scottsdale“. This area is also known as the “Unincorporated Area of Maricopa County“as we are just east of the city limits of Scottsdale. We are in an area that is designated “Free Range“. In the early 2000′s a developer in this area determined that there was water here in the Sonoran Desert at extreme depths and in low quantities, but it was here. Subsequent to that discover, the area would support life as we now know it.
This area sits at 2,500 feet and overlooks “Four Peaks“, the “McDowell Mountain Regional Park” the “Tonto National Forest” and the “McDowell Mountains“. The views are exceptional and the real estate is high desert.
In the early 2000′s, a land play was on and much of this area was subdivided into small parcels. A typical lot size is 1.5 acres up to 5 acres for a developed lot and at the peak, you might see land selling in the $200,000 per acre range. It has changed since those days, but the prices are steadily increasing.
The landscape is high desert with lots of Ocotillo’s, Saguaro Cactus, Barrel Cactus and the occasional tree, which in most parts of the country would be a large bush, but shade is a commodity here. Palo Verde trees, Mesquite trees and Ironwood trees are the native trees. The sunsets are nothing short of spectacular.
Sunset in Scottsdale
This once was the “wild west” as is still referred to by many. While not Texas as to the size of ranches such as the King Ranch, the 4-Sixes, etc., they were sizeable. Many a desert rat made his ranching claim to fame here but now it is the home of the well heeledScottsdale Scene which requires Hummers (aka Slummers), Ferrari’s, Bentley’s,Porsche’s, Mercedes and every over the top brand of automobile you can imagine.
An average Typical home for the “Desert Dwellers” will start at $400K and has at least a 3 car garage, pool, viewing platform for the mountains
Saguaro Cactus
…..and then there are the “Open Range Laws“.
The “Open Range Laws” are a bit of a misnomer as they are referred to as “Laws”, but are a series of statutes relating to the grazing of livestock in areas without recourse as to the damage they create to the individual property land owners. We live in such an area.
The cattle are protected, meaning it is my responsibility to “keep the cattle” out by means of a fence. This fence actually is defined…no less than 4 strands of barbed wire, at defined heights, the posts can be no more than 30′ apart and the wire has to be stretched and maintained. So, if a cow, or cattle find their way on to my property and destroy every speck of vegetation I have, it was my responsibility to keep them out. And if my dog were to pursue these cattle in running them away, the owner of the cattle could legally shoot and kill my dog with no recourse…even on my property. Oh, then there is another twist, Maricopa County requires a “Fence Permit” to build a fence.
As much of this area has “washes” and a lot of them, referred to as “dry creeks” in the rest of the United States, the county will not allow you to build a “barbed wire fence” through a “wash“. The fence must be pipe and the bottom rail cannot be closer than 24″ to the natural surface. The statute requires the bottom wire to be 18″ above the natural surface and “barbed wire”, which the county will not accept either of those scenarios. So much for meeting the statutes.
And it even gets better….when I drive in an area designated as “Open Range“, (by the way, there are no signs designating such an area) if I hit a cow, cow’s, bull…any of the above, die in the process and the animal dies as a result of my neglect for their safety, my heirs are responsible to the owner of the animal for reimbursement. My estate nor heirs have any recourse upon the owner of the animal(s) for negligence in managing his animals.
We maintain horses on our property. In Arizona you have to feed animals everyday as grass is unheard of unless there is a 1/2″ shower they refer to as a “Monsoon“. The grass will flourish until the ground dries up, which usually doesn’t take long.
Some modern Arizona State Legislators have attempted to change the “State Statutes” with little compassion from fellow Legislators as the Arizona Cattleman’s Associationappears to have quite a bit of power. The Counties, including Maricopa, through their elected officials, the “Board of Supervisors“, exhibit little compassion or concern for their constituents as well.
Other western states have the similar statutes on the books, but I know of some states that have invoked County regulations requiring the livestock owner’s to create fences to contain their livestock. Likely, these states have rainfall that does not require 200 acres to maintain one cow. And with the responsibility of maintaining the livestock comes the liability associated with damage or death that the livestock may create if they were to escape.
Arizona, or certainly parts of it, have changed from their rough/tough cowboy heritage and transitioned into the suburban lifestyles that so many other states have seen as well.
Cited herein are recent publications explained the statutes and their impact on individual property owners.
A publication from the Arizona Cooperative Extension Service
Arizona’s Open Range “Law”
AZ1533 December 2010
“Livestock are still an important part of rural life in Arizona.
As more and more homes have been built adjacent to areas
traditionally used for cattle grazing, the potential for conflict
between livestock owners and homeowners has increased.
Regardless of whether you yourself own large animals,
you must be aware of your responsibilities towards your
neighbors’ livestock. The details of your responsibilities—and
your liability—depend in large part upon where you live and
whether you have a suitable fence around your property.
Although you may hear or read about Arizona’s open range
law, there is no actual law in Arizona that defines open range.
Rather, the concept came about as part of Arizona’s ranching
history. Large ranches owned by one person sometimes
surrounded smaller parcels owned by another person. The
owner of the large ranch would require the small landowner
to put up their own fences to keep out the rancher’s cattle.
This saved the rancher from having to fence ALL the small
parcels that existed inside his ranch lands. So it became the
responsibility of the small landowner to fence out the rancher’s
cattle.
Although there may not be an actual open range law on the
books, there are nine state statutes that pertain to livestock
and fences (Arizona Revised Statutes (ARS) Title 3, Chapter
11, Article 8).
Key Points
• County Boards of Supervisors have the authority to
designate No-Fence Districts. Contact your county’s Clerk
of the Board of Supervisors office (see contact info below)
to find out if you live within a No-Fence District.
• If you do live in a No-Fence District, liability for property
damage by stray livestock falls on the livestock owner.
• If, like most Arizona residents, you DO NOT live in a
No-Fence District, it is your responsibility to fence out
unwanted livestock using a “Lawful Fence,” as defined in
ARS 3-1426. This is especially important in areas on your
property that contain gardens or ornamental plants that
livestock love to munch. A lawful fence 1) has posts spaced
Erik Glenn, Cori Dolan
no more than 30 feet apart; 2) has at least four strands of
barbed wire; and 3) spaces the wires such that they are 18”,
28”, 38” and 50” above the ground, respectively.
• If you have constructed a lawful fence and livestock break
through that fence to cause damage to your property, you
are entitled to file with either your justice of the peace or
your superior court to recover damages (see contact info
below).
• Furthermore, if you kill livestock in an open range area,
whether it is an accident or not, you are liable to the owner
to compensate for damages.
• Remember, even as a small-acreage landowner, if you own
livestock that does damage to someone else’s property and
they either live in a No-Fence District OR have built and
maintained a legal fence, you will be guilty of a class 2
misdemeanor and are liable for damages.
• If you are involved in an automobile accident with livestock,
contact your county’s Clerk of the Board of Supervisors
office to find out if the particular location is a No-Fence
District to see if you have any legal recourse. As mentioned
previously, if an accident outside of a No-Fence District
results in a dead animal, you are liable to the owner for his
or her loss.
• Although it’s technically not one of the nine statutes
pertaining to open range and No-Fence Districts, it is
important that landowners understand ARS 3-1311, as well.
This statute explains that dog owners must not let their pets
chase, wound or kill livestock. They are liable for damages,
will be charged with a misdemeanor and their dog may be
legally killed if it can be conclusively shown that it harassed
or killed livestock.”
A recent article in the High Plains/Midwest Ag Journal, note the comment by the City Council member of Ahwatukee, Sal DeCiccio, what a guy, representing his constituents well.
Runaway cow calls attention to Arizona’s open range law
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PHOENIX (AP)–A runaway cow that wandered Ahwatukee Foothills neighborhoods and sections of the South Mountain Preserve for eight weeks is calling attention to Arizona’s Open Range Law.
A state legislator claims the wandering 1,000-pound heifer is an example of why Arizona laws that regulate cattle farms need to be modernized.
“Arizona’s Open Range Law is a relic, it is an outdated 19th-century law,” said Arizona Rep. Daniel Patterson, a Tucson Democrat who in the past legislative session introduced a bill that would, among other things, require cattle owners to keep their animals fenced.
The state House bill went nowhere, but Patterson said he will draft a similar bill for the next legislative session.
Present law allows cattle to roam and makes it the responsibility of property owners to find ways to keep the animals out of their yards or fields.
Patterson thinks the rule is backward.
“When people hear about the Open Range Law they are just blown away,” Patterson said. “They can’t believe it puts the rights of cattle above those of property owners.”
Patterson represents a section of southern Tucson that is similar to Ahwatukee, the southernmost part of Phoenix. Both abut rural areas where livestock is kept.
The runaway cow has been a source of amusement for Ahwatukee residents. As the cow remained on the lam from late June to mid-August, many wondered if they would see it while running or biking through the preserve and whether they would wake up to find it grazing on their lawns.
Patterson said he represents many angry Tucson residents who have had their fences broken and gardens trampled by stray cattle from nearby rural areas. Sometimes it is difficult to identify from which ranch a troublesome cow strays.
Patrick Bray, vice president of the Arizona Cattle Growers Association, said a law requiring that cattle owners put fences around their property would be too expensive for ranchers who own immense properties in rural Arizona. Plus state history is on the cattle owners’ side, he said.
“When we were settled, the law said you have to fence out cattle–not fence cattle in,” he said.
The cow that wandered Ahwatukee for two months broke through a fence at a small farm in southwest Phoenix and ran off to the South Mountain Preserve. The Arizona Department of Agriculture issued the owner a written warning and told him to hire cowboys to round up the animal.
Over a period of two months, the Phoenix Police and Parks and Recreation departments received numerous reports about where the cow was, but neither agency has the authority to capture cattle under state law. Only owners and the state agriculture department can do that.
Councilman Sal DiCiccio, who lives close to a preserve area where the cow finally was captured, said he doesn’t believe Phoenix needs any additional laws regulating cattle or livestock within the city limits.
“I have lived here 23 years and in my whole time here there has never been a cow loose in Ahwatukee,” he said. “It was just kind of a freak thing.”
And then there is the Wikipedia’s discussion of the archaic laws:
In the western United States, open range is rangeland where cattle roam freely regardless of land ownership. Where there are “open range” laws, people wanting to keep animals off their property must erect a legal fence to keep animals out, as opposed to the “herd district” where an animal’s owner must fence it in or otherwise keep it on the person’s own property. Most eastern states require owners to fence in or herd their livestock. The Western open-range tradition originated from the early practice of unregulated grazing in newly acquired western territories, which was codified in the laws of Western states as they developed written statutes.[1]Over time, as the Western lands became more developed (railroads, mining, farming, etc.) the open range laws started to be challenged and were significantly curtailed, but they still exist in certain areas of most western states.[1]
Cattle roundup, before barbed wire times
Unlike the eastern United States, the western prairies of the 19th century were vast, undeveloped, and uncultivated, with scarce, widely separated sources of water. Until the invention of barbed wire in the 1870s, it was more practical to fence the livestock out of developed land, rather than to fence it in.[1] As the United States government acquired western territories, land not yet placed into private ownership was publicly-owned and freely available for grazing cattle, though conflicting land claims and periodic warfare withNative Americans of the Great Plains placed some practical limits on grazing areas at various times.
Free-roaming range cattle calved, were moved between grazing lands, and driven to market by cowboys. Branding was used to identify cattle belonging to different owners.[1] Unbranded cattle were known as “mavericks” and could become the property of anyone able to capture and brand the unmarked animal.
The invention of barbed wire in the 1880s allowed cattle to be confined to designated areas to prevent overgrazing of the range. In Texas and surrounding areas, increased population required ranchers to fence off their individual lands.[4] This initially brought considerable drama to western rangeland. Its invention made fencing huge expanses cheaper than hiring cowboys for handling cattle, and indiscriminate fencing of federal lands often occurred in 1880s, often without any regards to land ownership or other public needs, such as mail delivery and movement of other kinds of livestock. Various state statutes, as well as vigilantes (see “Fence Cutting War“), tried to enforce or combat fence-building with varying success. In 1885, federal legislation outlawed the enclosure of public land. By 1890, illegal fencing had been mostly removed.[1][5]
Waiting for a Chinook, by C.M. Russell. Overgrazing and harsh winters were factors that brought an end to the age of the Open Range
In the north, overgrazing stressed the open range, leading to insufficient winter forage for the cattle and starvation, particularly during the harsh winter of 1886–1887, when hundreds of thousands of cattle died across the Northwest, leading to collapse of the cattle industry.[6] By the 1890s, barbed wire fencing was also standard in the northern plains, railroads had expanded to cover most of the nation, and meat packing plants were built closer to major ranching areas, making long cattle drives from Texas to the railheads inKansas unnecessary. Hence, the age of the open range was gone and large cattle drives were over.[6] Meanwhile, ranches multiplied all over the developing West.[7]
[edit]Modern times
Cattle on a mining road
In modern times, free roaming cattle can be a nuisance and danger in developed areas. Most western states now limit open range to certain areas. Under open range law today, if livestock break through a “legal fence” (defined by law in terms of height, materials, post spacing, etc.), then the livestock owner is liable for damages of the fenced property. Conversely, the livestock owner is not liable in the absence of the “legal fence.” An exception exists for “unruly” animals, usually meaning breeding bulls and stallions, which are supposed to be restricted by the owner.
On roadways within an open range area, in a cow-car collision on a roadway, the rancher was at one time not generally liable, but recent law changes beginning in the 1980s gradually increased rancher liability, first requiring cattle be kept off federal highways, then other developed roads, and in some cases, limited open range grazing only to certain times of the year. In some states, such as Montana, case law on the open range has, for all practical purposes, eliminated it altogether, though statutes may remain on the books. Today, a vehicle has a much higher chance of hitting a wild animal than livestock.
Laws are still in flux. In Arizona, livestock must be fenced in within incorporated areas, but are still listed only as a potential nuisance for unincorporated suburbs. Therefore in that state, bills are being pushed “to get rid of this antiquated law from 19th century.” Those opposing the legislation say that “eliminating the law would put undue hardship on ranchers. However, the law has sometimes been settled via legal action. In Montana, the Montana Supreme Court in the decision Larson-Murphy v. Steiner, eliminated the open range doctrine altogether, though statutes remain on the books and have been updated since the decision to ameliorate some provisions of the decision.
So at the end of the day, know your rights about “Open Range”. As a landowner, you have none at the present time, unless you can construct a legally permitted ”barbed wire” fence and own property without a wash….which will not happen in the Rio Verde Foothills.
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