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: enforce state and county noxious-weed lists, conduct public-information work, contract for chemicals and labor, sometimes sell chemicals to private landowners, and coordinate with state and federal partners on weed control over large landscapes (federal grasslands, BLM land, state-managed wildlife areas, county-owned 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 another county, with a state agency, with a federal grasslands office, or with a tribal entity. Each side contributes resources, sometimes including chemical application services. The arrangement is cheaper and more effective than each unit going it alone.
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 produces absurd results. SD has many JPAs for weed control, including agreements with federal grassland managers, USFS, BLM, and state agencies. Almost every SD county has at least one private commercial applicator. Reading SDCL 38-22-23.11 to block JPAs in any county with a private applicator would effectively prohibit all inter-governmental weed cooperation in SD. The AG was not inclined to ascribe that intent to the Legislature, citing the established canon against absurd results (Martinmaas v. Engelmann).
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. That side-note matters because some SD counties have significant federal land (Black Hills National Forest, Buffalo Gap National Grassland, various BLM tracts), and effective weed control requires federal cooperation.
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 with significant federal-land neighbors in 2011, the opinion confirmed that JPA-based weed control could continue. Joint operations with the USFS, BLM, the SD Department of Game, Fish and Parks, and adjacent counties 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 (USFS Black Hills National Forest, USFS Buffalo Gap National Grassland, BLM SD field offices), the opinion validated existing cooperative arrangements with adjacent 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 large areas of federal land (Black Hills, Buffalo Gap National Grassland, Cheyenne River and Pine Ridge tribal lands, multiple BLM tracts), state-managed wildlife areas, county-owned conservation land, and private agricultural land. Effective weed control on those landscapes requires coordination across landowners. JPAs are the practical tool for coordinated chemical application across mixed federal/state/county/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 absurdity argument seals it. Martinmaas v. Engelmann (2000 S.D. 85) supplies the canon: statutes are not construed to produce absurd or unreasonable results. The reading the private applicator urged would block every JPA in SD where any private applicator existed. The AG considers that result absurd given the statutory framework's clear support for inter-governmental cooperation in weed control.
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
Statutes:
- SDCL 1-24-8 (joint powers agreement authority)
- SDCL 38-22-23.9 (cooperative agreements; subsection (2) federal agencies)
- SDCL 38-22-23.11 (chemicals/labor purchase; commercial-availability limit)
Cases:
- Martinmaas v. Engelmann, 2000 S.D. 85, 612 N.W.2d 600
Source
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.
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 statute then includes the commercial-availability limit restricting sales and application when commercial sources are available.]
The county weed and pest board's authority to enter into cooperative agreements with other governmental units exists under separate statutes (SDCL 1-24-8 generally; SDCL 38-22-23.9(2) for cooperative agreements with federal agencies). Reading SDCL 38-22-23.11's commercial-availability limit to extend to inter-governmental cooperation would conflict with those separate authorities.
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