When a SD county has a weed and pest control problem and there are private commercial chemical applicators operating in the county, can the county weed and pest board still enter into a joint powers agreement (under SDCL 1-24-8) with another government agency for weed control work? Or does the existence of private applicators in the county block the county from contracting with the other government and force the county to use the private applicators?

Plain-English summary

Counties in SD run weed and pest control through county weed and pest boards. Those boards have a mix of duties: implement and pursue weed and pest control programs, contract for chemicals and labor, sometimes sell or apply chemicals, and coordinate with state and federal partners on weed control across public and private lands.

A common approach is the joint powers agreement (JPA) under SDCL 1-24-8. Two government units agree to cooperate on a shared problem. For weed control, a county board might enter a JPA with a state agency such as the Department of Transportation, or with a federal agency such as the U.S. Forest Service. Each side contributes resources, sometimes including chemical application services.

Custer County had been doing JPAs of this kind. A private commercial applicator in the county complained. The applicator pointed to SDCL 38-22-23.11, which says: "The county weed and pest board may purchase such quantities of agricultural chemicals, poisons, and equipment and hire such labor necessary to carry out the provisions of this chapter," followed by language restricting the board from selling and applying chemicals when those services are available through commercial sources.

The applicator's argument was that SDCL 38-22-23.11 prohibited the county board from doing chemical application work itself (or via a JPA) when private commercial applicators were available. If accepted, this reading would block JPAs for chemical-application work in any county where a private applicator existed. Custer County State's Attorney Tracy Kelley asked the AG to clarify.

The AG's answer was: a county may enter into a joint powers agreement under SDCL 1-24-8 with another governmental agency for weed control even when private commercial applicators exist in the county. SDCL 38-22-23.11's restriction applies to private landowner services, not to cooperative agreements between government agencies.

The reasoning ran through three points:

First, the statutory framework supports inter-governmental cooperation. SDCL 1-24-8 generally authorizes joint powers agreements among government units. SDCL 38-22-23.9 specifically authorizes weed and pest boards to enter cooperative agreements with federal agencies. The Legislature thus contemplated weed-control cooperation between governments as part of the normal way the work gets done.

Second, SDCL 38-22-23.11's commercial-source limitation is best read as applying to commercial sales to private landowners, not to inter-governmental work. The county board's authority to "purchase such quantities of agricultural chemicals, poisons, and equipment and hire such labor" exists to carry out the board's duties under chapter 38-22. Selling chemicals to private landowners is one way the board could potentially fulfill those duties (and the commercial-availability limit makes sense in that context, to avoid putting the county in direct competition with private vendors). Performing chemical application under a JPA with another government agency is a different activity, governed by a different statutory authority (SDCL 1-24-8), not bounded by the SDCL 38-22-23.11 limit.

Third, the alternative reading would block inter-governmental cooperation statewide. The opinion noted that a review of the Department of Agriculture's list of licensed commercial pesticide applicators showed that every county in SD has a commercial applicator. Reading SDCL 38-22-23.11 to block JPAs in any county with a private applicator would mean there could be no joint powers agreement between governmental units in SD for weed control. The AG was "not inclined to ascribe that intent to the Legislature."

The opinion did not opine on the authority of a weed and pest board over federally-owned land except to note that SDCL 38-22-23.9(2) specifically authorizes cooperative agreements with federal agencies for that purpose. The facts named the U.S. Forest Service as one of the agencies Custer County had historically worked with.

The bottom line: county weed and pest boards in SD could continue to enter JPAs with other government agencies for weed control work, even when private applicators were available. The private applicator's exclusivity argument failed.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL chapters 1-24 (Joint Powers Agreements) and 38-22 (Weed and Pest Control) should both be checked directly. The principle that inter-governmental cooperation is distinct from commercial sales to private landowners is structural and likely stable, but verify before relying on a specific JPA arrangement.

What the opinion meant at the time

For Custer County and similar SD counties in 2011, the opinion confirmed that JPA-based weed control could continue. The facts described Custer County contracting with the SD Department of Transportation and the U.S. Forest Service to control weeds on those agencies' properties, and the opinion held that those cooperative arrangements remained legally sound. The private-applicator complaint did not change anything.

For SD county weed and pest boards generally, the opinion provided a clear distinction. Direct sales of chemicals to private landowners are subject to the SDCL 38-22-23.11 commercial-availability limit. Cooperative agreements with other government agencies for weed control are not. The board could continue both types of activities (where authorized) with the appropriate statutory limits applying to each.

For county states' attorneys advising weed and pest boards, the opinion gave a structural answer to a recurring complaint. Private applicators occasionally argued for exclusivity. The opinion's reading let the state's attorney explain that JPAs were a separate authority and not subject to the same restriction.

For private commercial weed applicators in SD, the opinion was a limit on competitive-exclusion arguments. The private applicators could still serve private landowners (where they had the work). They could not insist that all chemical application work in the county go to them. Government-to-government cooperation was protected.

For federal land managers such as the U.S. Forest Service, the opinion validated existing cooperative arrangements with county weed boards. Continuing those arrangements required no change in approach.

For township supervisors, the opinion was useful background but not directly applicable. Townships rely on county weed and pest boards for their weed-control coordination. The opinion preserved the county-board mechanism that township-road weed control depends on.

Common questions

Q: What is a joint powers agreement?
A: A contract between two or more government units that lets them combine resources for a shared purpose. SDCL ch. 1-24 is the SD statutory framework. SDCL 1-24-8 is the specific authorization for governmental units to enter joint powers agreements.

Q: Why is JPA-based weed control common in SD?
A: SD has a mix of federal land, state-supervised land and highways, county land, and private agricultural land. SDCL 38-22-22 places the cost of controlling weeds on public lands and highways on the government supervising them, so effective control requires coordination across those landowners. JPAs are the practical tool for coordinated work across mixed federal, state, county, and private ownership.

Q: What does SDCL 38-22-23.11 actually restrict?
A: As read by the 2011 AG, it restricts the county weed and pest board from selling and applying chemicals to private landowners when commercial applicators are available to do the same work. The point is to avoid government competition with private vendors for private-landowner work. It does not restrict cooperative agreements between government agencies.

Q: Can the county weed and pest board sell chemicals to private landowners?
A: Under SDCL 38-22-23.11, only when commercial applicators are not available to provide the same services. The restriction protects private commercial applicators from government competition in the private-landowner market.

Q: Does the opinion apply to federal grasslands work?
A: Yes. The opinion specifically notes SDCL 38-22-23.9(2) authorizes cooperative agreements between county weed and pest boards and federal agencies. JPAs with the USFS, BLM, and other federal land managers fall within that authority and are not blocked by SDCL 38-22-23.11.

Q: What if a private applicator believes a JPA-based contract is anti-competitive?
A: The opinion does not give private applicators a remedy in SDCL 38-22-23.11. If the applicator believes specific JPA terms violate other law (state procurement, antitrust, contract law), that's a separate question. The opinion only addresses whether SDCL 38-22-23.11 itself blocks the JPA, and the answer is no.

Q: Can a county weed and pest board pay another county's applicators?
A: Under SDCL 1-24-8's JPA authority and the 2011 AG opinion, yes. Counties can enter JPAs with each other for shared weed-control work, and the financial arrangement (one county paying another) is a matter for the JPA contract.

Q: Does this opinion affect ranchers and farmers spraying their own land?
A: No. The opinion is about the county weed and pest board's authority. Private landowners doing their own weed control on their own land are not affected. The board's enforcement authority over private landowners (under SDCL ch. 38-22) is separate from the chemical-sales authority addressed in SDCL 38-22-23.11.

Background and statutory framework

SD has a layered weed-control framework. The Legislature designates noxious weeds (often by reference to administrative rule). The SD Department of Agriculture coordinates statewide. County weed and pest boards (one per county) implement the program at the local level. The boards have responsibilities for: educating landowners, enforcing the noxious-weed control statutes, contracting for chemicals and equipment, sometimes conducting application services, and coordinating with federal and state partners.

SDCL ch. 38-22 codifies the framework. Within that chapter, SDCL 38-22-23.9 is the cooperation provision, including subsection (2) for cooperative agreements with federal agencies. SDCL 38-22-23.11 is the chemicals-and-labor purchasing authority, including the commercial-availability limit on chemical sales.

SDCL 1-24-8 is the general JPA authority. It allows governmental units to combine their statutory powers through written agreement. JPAs are common across SD for many purposes: emergency management, law enforcement task forces, library systems, road maintenance, water/sewer service, and yes, weed control.

The interpretive question was whether SDCL 38-22-23.11's commercial-availability limit applied to all weed-and-pest-board chemical-application activity or only to direct commercial sales to private landowners. The AG used standard SD interpretive doctrine to resolve the ambiguity.

The plain-language reading of SDCL 38-22-23.11 is that the commercial-availability limit attaches to the board's purchase-and-sell authority. The statute authorizes the board to "purchase such quantities of agricultural chemicals, poisons, and equipment" and to "hire such labor necessary to carry out the provisions of this chapter." The commercial-availability limit then qualifies that authority. In context, the limit is naturally read as applying to the board's commercial-style activities (purchasing chemicals to sell or apply for fee), not to all chemical-application activity the board might engage in via JPA with another government agency.

The structural reading reinforces the textual one. JPAs operate under different statutory authority (SDCL 1-24-8) and SDCL 38-22-23.9 specifically authorizes inter-governmental cooperation for weed control. The Legislature thus contemplated two distinct tracks: direct commercial-style activities (where the SDCL 38-22-23.11 limit applies) and inter-governmental cooperative work (where it does not).

The statewide-effect argument seals it. The AG cited Martinmaas v. Engelmann (2000 S.D. 85) for the rule that intent is determined from the statute as a whole and related enactments, and Rotenberger v. Burghduff (2007 S.D. 7) for the rule that statutes are construed to give effect to each and to exist in harmony. Because every SD county has a commercial applicator (per the Department of Agriculture list the opinion references), the reading the private applicator urged would block every JPA in SD for weed control. The AG was not inclined to ascribe that intent to the Legislature.

The opinion also notes the federal-cooperation track separately. SDCL 38-22-23.9(2) is express authority for weed and pest boards to enter cooperative agreements with federal agencies. That makes it doubly clear that the SDCL 38-22-23.11 limit cannot block inter-governmental weed work.

The opinion's holding fits the AG's typical approach to statutory limits on agency authority: read the limit no broader than its text and context require, especially when the broader reading would conflict with other authority-granting statutes or produce absurd results.

Citations and references

Constitutional provision:
- S.D. Const. art. IX, §§ 3 and 4 (cooperation between governmental units)

Statutes:
- SDCL 1-24-2 (joint exercise of powers by public agencies)
- SDCL 1-24-8 (joint powers agreement authority)
- SDCL 38-22-22 (responsibility/cost of weed control on public lands and highways)
- SDCL 38-22-23.1 (appointment of county weed and pest board)
- SDCL 38-22-23.9 (cooperative agreements; subsection (2) state and federal agencies)
- SDCL 38-22-23.10 (boards implement weed/pest control programs)
- SDCL 38-22-23.11 (chemicals/labor purchase; commercial-availability limit)
- SDCL 38-22-23.14 (remedial action upon landowner failure)
- SDCL 38-22-23.16 (control operations upon landowner request)

Cases:
- Martinmaas v. Engelmann, 2000 S.D. 85, 612 N.W.2d 600
- Rotenberger v. Burghduff, 2007 S.D. 7, 727 N.W.2d 291

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1669

Original opinion text

STATE OF SOUTH DAKOTA
OFFICE OF THE ATTORNEY GENERAL

October 18, 2011

Tracy L. Kelley
Custer County State's Attorney
420 Mt. Rushmore Rd.
Custer, SD 57730

OFFICIAL OPINION NO. 11-04

Joint Powers Agreement for Weed Control

Dear Ms. Kelley:

You have requested an official opinion from this office regarding the following question:

QUESTION:

Can a county, pursuant to SDCL 1-24-8, contract with another governmental agency for weed and pest control if there are one or more private commercial applicators within the county?

ANSWER AND OPINION SUMMARY:

Yes. Although SDCL 38-22-23.11 provides that a county weed and pest board may not sell and apply chemicals and poisons for weed and pest control if such services are available through commercial sources, that statute does not apply when a public agency enters into cooperative agreements with another public agency for such services. SDCL 38-22-23.9(2) specifically authorizes county weed and pest boards to coordinate activities with state and federal agencies and to enter into agreements with those entities pursuant to SDCL ch. 1‑24. SDCL 1-24-8 authorizes joint powers agreements between public agencies for "any governmental service, activity, or undertaking which any public agency entering into the contact is authorized by law to perform."

FACTS:

Custer County has historically contracted with other governmental agencies, including the South Dakota Department of Transportation and the United States Forest Service, to spray for and control weeds on properties under the ownership and control of such governmental agencies. There are one or more private applicators located within Custer County that provide weed and pest control services. One private applicator has questioned the legality of the county contracting for and performing services for other governmental entities and has further argued the need for such governmental agencies to bid for such services.

IN RE QUESTION:

Every county in the state was required to appoint a weed and pest board no later than February 1, 1984. SDCL 38-22-23.1. Those boards are responsible for implementing and pursuing programs for the control of weeds and pests within their respective counties. SDCL 38-22-23.10. SDCL 38-22-22 places the responsibility for, and the cost of controlling weeds and pests on public lands and highways, on the state agency or local government supervising those lands and highways. See also SDCL 31-31-1; SDCL 31-31-4; SDCL 38‑22‑23.15; SDCL 38-22-24; compare SDCL 31-31-5 on townships. Weed and pest boards have the responsibility to make sure that private landowners, and those state agencies and local governments within their boundaries, comply with the weed and pest control programs implemented and pursued by the county weed and pest board.

The question posed seeks my opinion on how two pertinent statutes fit together within the framework of the statutory scheme. The issue is one of statutory interpretation. "The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. . . . Words and phrases in a statute must be given their plain meaning and effect." Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611. SDCL 38-22-23.11 provides:

The county weed and pest board may purchase such quantities of agricultural chemicals, poisons, and equipment and hire such labor necessary to carry out the provisions of this chapter. The board may sell and apply agricultural chemicals and poisons for weed and pest control if such services, chemicals, and poisons are not available through commercial sources.

It is this statute that evidently forms the basis for the complaint the county has received from the private applicator. This statute may not, however, be considered in isolation. "[S]tatutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject." Martinmaas, 612 N.W.2d at 611. "Statutes are to be construed to give effect to each statute and . . . to have them exist in harmony." Rotenberger v. Burghduff, 2007 S.D. 7, ¶ 8, 727 N.W.2d 291, 294 (internal citation omitted).

A review of the weed and pest control statutory scheme reveals another statute which is particularly relevant to your inquiry. SDCL 38-22-23.9(2) provides that a county weed and pest board may:

(2) Coordinate activities with state and federal agencies and enter into cooperative agreements, including agreements entered into pursuant to chapter 1-24; . . . .

Both sections 3 and 4 of Article IX of the South Dakota Constitution authorize cooperation between governmental units in the exercise of their powers. The Legislature has provided the mechanism for such governmental cooperation in SDCL ch. 1-24. SDCL 1-24-2 provides:

Any power or powers, privileges, or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state and jointly with any public agency of any other state or of the United States to the extent that the laws of such other state or of the United States permit such joint exercise or enjoyment. Any agency of South Dakota state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileges, and authority conferred by §§ 1-24-2 to 1-24-9, inclusive, upon a public agency. The provisions of this section do not apply to the power to tax or police powers, unless jointly held or otherwise authorized by law.

Public agencies may enter into joint powers agreements with one another, and those agreements may include contracts "to perform any governmental service, activity, or undertaking which any public agency entering into the contact is authorized by law to perform." SDCL 1-24-8.

I am of the opinion that cooperative agreements between public agencies for weed control fall squarely within that statutory authorization. As pointed out above, SDCL 38-22-22 places the responsibility for, and the cost of controlling weeds and pests on public lands and highways on the state agency or local government supervising those lands and highways. Certainly SDCL 38-22-23.11 demonstrates that the Legislature was sensitive to concerns about government competing with private business in carrying out its weed and pest control responsibilities. A weed and pest control board has authority to undertake work on a scale broader than just doing control work on county property. Under SDCL 38-22-23.14, a board may undertake remedial action upon the failure or refusal of a landowner to deal with infestations. Under SDCL 38-22-23.16, a board may also perform weed and pest control operations upon the request of a landowner. In those situations, if there is a commercial operator available in the county to perform those services, SDCL 38-22-23.11 would limit the county in performing the services with its own personnel.

When the landowner requesting county assistance is another unit of government, however, the Legislature has seen fit to provide an exception to SDCL 38-22-23.11 by authorizing joint governmental action. The state constitution and the statutory arrangement encourage cooperation between governmental units; here, the Legislature has gone so far as to include a specific reference to joint cooperative agreements in the weed and pest control statutes.

Nothing compels a governmental unit to use the competitive bidding process to undertake work on governmental property where the governmental unit determines to do the work with its own labor force, whether that work is building roads, erecting structures, or weed control. A government is always free to use its own work force, even if there are business entities that provide similar services. SDCL ch. 1-24 simply allows governmental units to assist each other in doing so.

Furthermore, a review of the many licensed commercial pesticide applicators listed on the current Department of Agriculture website indicates that each county in South Dakota has a commercial applicator. That means that under the interpretation of SDCL 38-22-23.11 urged by the complaining private applicator, there could not be a joint powers agreement between governmental units in South Dakota for weed control. I am not inclined to ascribe that intent to the Legislature. The limitations in SDCL 38-22-23.11 must be construed to only apply to private landowners.

It is my opinion that a county may, pursuant to SDCL 1-24-8, contract with another governmental agency for weed and pest control, even though there are one or more private commercial applicators within the county. I offer no opinion on the authority of a weed and pest control board over lands owned, managed, maintained, or supervised by the federal government except to point out that a weed and pest board has specific authority to enter into cooperative agreements with federal agencies under SDCL 38-22-23.9(2).

Respectfully submitted,

Marty J. Jackley

Attorney General

MJJ/HHD/jkp