When a SD township road runs along the edge of a farm or other private land, who has to control the weeds in the road ditch and right-of-way: the township or the adjoining landowner? And can a township board change the September-1 to October-1 statutory window for when weeds have to be removed?

Plain-English summary

In rural SD, weed control along township roads has been a long-running source of friction between townships and abutting landowners. Two statutes facially point in opposite directions:

• SDCL 31-31-2 says the owner or occupant of land abutting or adjoining a township road shall cut, remove, or destroy "grass, weeds, trees, and brush" in the right-of-way.
• SDCL 38-22-22 says the state agency or subdivision that supervises lands or highways is responsible for controlling and eradicating weeds on those lands or highways.

So who has the duty?

Hutchinson County's townships took the position that landowners had it all. Hutchinson County Weed & Pest Board supervisor Lonnie Mayer disagreed. The 1976 AG opinion (AGO 76-1) had said townships controlled noxious weeds. But the statutes referenced in 76-1 had since been amended or repealed, so the legal landscape was unclear. Mayer asked the 2016 AG to clarify.

The 2016 AG sorted it out by category of weed.

Noxious weeds: Township responsibility. SDCL 38-22-22 places the duty on whatever state agency or subdivision supervises the land or highway. Township roads are supervised by the township, so the township has the duty for noxious weeds on township roads. The 1976 opinion (AGO 76-1) reached the same conclusion. Although the underlying statutes had been amended (SDCL 38-12-2 and 38-12-3 repealed; SDCL 38-22-22 and 38-22-24 amended to remove the literal "noxious weeds" phrase), the AG concluded the structural answer was unchanged.

All other weeds (regular grass, ordinary weeds, trees, brush): Landowner responsibility. SDCL 31-31-2 places the duty on the abutting landowner.

The reasoning relied on the harmonizing canon. SD courts read conflicting statutes together to give effect to all of them where possible (Meyerink v. Northwestern Public Service). If SDCL 31-31-2 and SDCL 38-22-22 both controlled all weeds, both townships and landowners would be responsible for noxious weeds, and no one would be responsible for everything else. That absurd result (Martinmaas) had to be avoided. So the AG read SDCL 38-22-22 to cover noxious weeds and SDCL 31-31-2 to cover everything else.

On the second question (whether townships can change the September-1 to October-1 removal window), the AG said yes. SDCL 31-31-3 expressly says the weed-removal window is "between the first day of September and the first day of October of each year, or between dates annually fixed by the board of supervisors." SDCL 31-31-5 carries the same authority into the enforcement provision. The plain language gives the township board annual rate-making authority over the timing.

So the bottom line for SD townships:

1. Township pays for and controls noxious weeds (Canada thistle, leafy spurge, perennial sow thistle, hoary cress, Russian knapweed, salt cedar, purple loosestrife, absinth wormwood, the rest of the state and county lists) growing in township-road right-of-way.
2. Abutting landowner has to mow ordinary grass, ordinary weeds, brush, and small trees in the township-road right-of-way next to their property.
3. Township board may set its own annual schedule for landowner mowing.
4. If the landowner fails to mow, the township can hire someone, mow it, and bill the landowner (SDCL 31-31-5).

Currency note

This opinion was issued in 2016. 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 31-31 (township road weed control) and 38-22 (noxious weed control) have both been revisited periodically. The list of designated noxious weeds is set by administrative rule and is updated. Check the current SDCL provisions and the SD Department of Agriculture's current noxious weed list before relying on a specific allocation of duties.

What the opinion meant at the time

For SD township boards of supervisors in 2016, the opinion settled a recurring fight. The board had to budget for and execute noxious weed control on township roads. The board did not have to mow or spray ordinary grass and weeds on every abutting parcel; that was the landowner's job. The opinion also confirmed the board's authority to set its own mowing schedule, which let boards align mowing with local conditions (a wet spring might justify pushing the date back; a dry summer might justify moving it earlier).

For county weed and pest boards (like Lonnie Mayer's Hutchinson County board), the opinion gave a tool for enforcement. The county board could press townships to control noxious weeds on township roads, citing SDCL 38-22-22 and AGO 16-01. The county board could also press landowners on ordinary weeds, citing SDCL 31-31-2.

For abutting landowners, the opinion meant they still had a real mowing duty. Anyone with farm ground or rural acreage along a township road had to mow the right-of-way along their property at least once a year between September 1 and October 1, or on whatever schedule the township board set. If they didn't, the township could hire someone and bill them under SDCL 31-31-5.

For county state's attorneys advising townships, the opinion provided a clean two-category rule that could be used in advice letters and in any enforcement litigation. The structural answer (township for noxious, landowner for other) was easy to explain to township boards and to enforce.

For SD Department of Agriculture noxious-weed program staff, the opinion confirmed the cooperative-enforcement model. The state designates noxious weeds, counties (through their weed and pest boards) coordinate enforcement, and townships do the actual control work on the roads they supervise.

Common questions

Q: What is a noxious weed in SD?
A: A weed designated by state or county authority as one that must be controlled. The list is maintained under SDCL chapter 38-22 and related administrative rules. Common examples have included Canada thistle, leafy spurge, perennial sow thistle, hoary cress, Russian knapweed, salt cedar, purple loosestrife, and absinth wormwood. Check the SD Department of Agriculture's current list and your county's local supplemental list.

Q: What counts as an "ordinary" weed for landowner-duty purposes?
A: Any weed that is not on the state or county noxious-weed list. Common pasture and hay weeds, foxtail, ragweed, lambsquarters, kochia, etc., would typically fall here. SDCL 31-31-2 also covers ordinary grass, brush, and small trees in the right-of-way.

Q: How wide is a township-road right-of-way?
A: Typically 66 feet centered on the road, but it varies. The abutting landowner's duty under SDCL 31-31-2 runs to the full right-of-way along their land, not just to the edge of the gravel.

Q: What if the landowner refuses to mow?
A: Under SDCL 31-31-5, the township board may hire someone to mow, then charge the cost back to the landowner. The mechanics of the assessment and collection are typically through the property tax process.

Q: Can a township avoid noxious-weed responsibility by claiming the landowner has to do it under SDCL 31-31-2?
A: No. The AG opinion reads the two statutes as distributing responsibility by weed type, not letting either side dump its share on the other.

Q: Does the township have to spray noxious weeds at its own expense?
A: Yes, under the opinion's reading of SDCL 38-22-22. The township that supervises a road bears the cost and responsibility for noxious-weed control in that road's right-of-way. Townships often handle this through cooperative agreements with the county weed and pest board.

Q: Can the township board change the mowing window every year?
A: Yes. SDCL 31-31-3 expressly says "between the first day of September and the first day of October of each year, or between dates annually fixed by the board of supervisors." The board can set new dates each year if it wants.

Q: How does this interact with section-line right-of-way?
A: Section-line right-of-way carries similar issues. The opinion is specific to township roads. Section-line ROW that has not been opened as a township road may have different rules. Consult county counsel for specific section-line questions.

Q: What happens if the township and the landowner disagree about whether a particular plant is a noxious weed?
A: The state-designated and county-designated noxious-weed lists govern. The county weed and pest board can identify the plant and issue a determination. If there is still dispute, the county state's attorney typically handles enforcement.

Background and statutory framework

SD's weed-control framework runs through two main statutory threads. The first thread is general right-of-way maintenance, codified in SDCL chapter 31-31 (Township Roads — Weeds and Brush). The second thread is noxious-weed control, codified in SDCL chapter 38-22 (Weed and Pest Control).

SDCL 31-31-1 establishes the general duty to remove grass, weeds, trees, and brush from township road right-of-way. SDCL 31-31-2 specifically places the duty on the owner or occupant of land abutting or adjoining the township road. The duty runs to the right-of-way (not just the road surface). The plant categories are general: "grass, weeds, trees, and brush."

SDCL 31-31-3 sets the default removal window (September 1 to October 1) and authorizes the township board of supervisors to set its own annual dates. SDCL 31-31-5 provides enforcement: if the landowner does not mow, the board can hire someone to do it and the township pays the cost, presumably recovering from the landowner through standard mechanisms.

SDCL chapter 38-22 is the parallel noxious-weed control framework. SDCL 38-22-22 places the duty for noxious weeds on the state agency or subdivision supervising the land or highway. SDCL 38-22-24 is the parallel enforcement provision. These statutes used to refer expressly to "noxious weeds" but were amended in the years after 1976 to remove the literal phrase, while still describing the substantive noxious-weed control framework.

The Legislature removed the literal "noxious weeds" phrase from SDCL 38-22-22 and 38-22-24, and repealed the former definitional statutes SDCL 38-12-2 and 38-12-3. That left a literal-text gap: the term "noxious weeds" no longer appeared in the operative SDCL provisions in 2016. The 2016 AG nonetheless concluded the underlying obligation framework was unchanged. The category of noxious-weed control still existed (designated by current administrative rule), and SDCL 38-22-22 still allocated weed-control responsibility on supervised lands/highways to the supervising entity.

The 1976 AG opinion (AGO 76-1) had reached the same allocation under the prior statutes. The 2016 AG explicitly noted that AGO 76-1's literal statutory citations were obsolete (because of the repealed/amended statutes), but the substantive allocation it identified was correct. The 2016 opinion functions as a refresher and a re-grounding of the 1976 framework in the updated statutory text.

The interpretive heavy lifting was the harmonization of SDCL 31-31-2 and SDCL 38-22-22. Read literally, both statutes might apply to all weeds on township roads, putting the duty in two places at once. SD interpretive doctrine prefers harmonization (Meyerink v. Northwestern Public Service) and avoidance of absurd results (Martinmaas v. Engelmann, Moss v. Guttormson). The AG read the two statutes as covering different weed categories: SDCL 38-22-22 for noxious weeds (per its placement in the noxious-weed chapter) and SDCL 31-31-2 for everything else (per its placement in the general township-road chapter).

The structural argument also worked. If SDCL 31-31-2 and SDCL 38-22-22 both controlled the same universe of weeds, the result would be that townships and landowners both had duties for noxious weeds (with the absurd implication that each could point at the other), and no one had a duty for ordinary weeds. The legislature would not have intended that.

On the second question, the AG's job was much easier. SDCL 31-31-3 and 31-31-5 expressly authorize the board of supervisors to fix annual dates. The plain language disposes of the issue.

The opinion's holding represents typical AG-opinion craft for SD: state the conflicting statutes plainly, apply settled harmonization doctrine, ground the result in a structural argument, and leave the door open for the Legislature to act if the policy direction needs to change.

Citations and references

Statutes:
- SDCL 31-31-1 (right-of-way weed-removal duty)
- SDCL 31-31-2 (landowner duty for grass, weeds, trees, brush)
- SDCL 31-31-3 (statutory weed-removal window; board may fix annual dates)
- SDCL 31-31-5 (enforcement if landowner fails)
- SDCL 38-22-22 (state agency/subdivision responsibility for weeds on supervised land/highway)
- SDCL 38-22-24 (noxious weed control framework)
- SDCL 2-14-4 (uniform application of statutory definitions)
- SDCL 38-12-2 (repealed)
- SDCL 38-12-3 (repealed)

Cases:
- State v. I-90 Truck Haven Service, Inc., 2003 S.D. 51, 662 N.W.2d 288
- Puetz Corp. v. SD Dept. of Revenue, 2015 S.D. 82, 871 N.W.2d 632
- State v. Clark, 2011 S.D. 20, 798 N.W.2d 160
- Pete Lien & Sons, Inc. v. Zellmer, 2015 S.D. 30, 865 N.W.2d 451
- Meyerink v. Northwestern Public Service Company, 391 N.W.2d 180 (S.D. 1986)
- Martinmaas v. Engelmann, 2000 S.D. 85, 612 N.W.2d 600
- Moss v. Guttormson, 1996 S.D. 76, 551 N.W.2d 14

Prior AG opinions:
- AGO 76-1 (Janklow, January 8, 1976; same allocation under prior statutes)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1684
• Original PDF: https://atg.sd.gov/OfficialOpinions/DOC081016-08102016131514.pdf

Original opinion text

OFFICIAL OPINION NO. 16-01

August 5, 2016

Lonnie Mayer, Supervisor
Hutchinson County Weed & Pest Board
140 Euclid #38
Olivet, South Dakota 57052

Official Opinion No. 16-01

Re: Obligation for Weed Control on or Along Township Roads

Dear Mr. Mayer,

In your position as Supervisor of the Hutchinson County Weed & Pest Board, you have requested an official opinion from the Attorney General's Office on the following questions:

Question(s):

1. Is the township or the adjoining landowner responsible for weed control along township roads?

2. Can a township deviate from the dates established in statute for the removal of weeds?

Answer(s):

1. The Legislature has placed the responsibility for controlling and eradicating noxious weeds on or along township roads upon the state agency or subdivision that supervises the roads. The responsibility for controlling all other weeds on or along township roads has been placed upon the landowner.

2. Yes. Pursuant to SDCL 31-31-3 and 31-31-5, a township's board of supervisors may determine the dates between which all weeds shall be removed along township roads.

Facts:

Townships within Hutchinson County contend that the responsibility for controlling and eradicating weeds on township roads, or within the road right of way, shall be upon the landowner. Attorney General's Opinion 76-1 interprets state law to require townships to control noxious weeds along township roads. Also, townships within Hutchinson County are adjusting the dates of required weed control to deviate from the dates contained in SDCL 31-31-3 and 31-31-5. Based on these facts, you have asked the two questions identified above.

In re Question 1:

Attorney General Janklow issued a formal opinion on this same issue on January 8, 1976. That opinion stated in relevant part:

[South Dakota] statutes do not authorize a township to require a landowner to control noxious weeds in township road ditches adjacent to his property. SDCL 31-31-2 ... refers to "grass, weeds and brush." SDCL 38-22-22 and 24 ... specifically refer to "noxious weeds" and it is the responsibility of the township in this instance to control such noxious weeds. SDCL 38-12-2 and 3 contain statutory definitions of what constitutes "noxious weeds."

AGO 76-1.

Since the date of that opinion, SDCL 38-12-2 and 38-12-3 were repealed, and SDCL 38-22-22 and 38-22-24 were amended to remove the term "noxious weeds" from their statutory descriptions. Opinion 76-1 is, therefore, no longer a valid explanation of statutory authority on this issue. It is my opinion, however, that these statutory changes do not affect the underlying obligation of townships to remove noxious weeds on or along township roads.

SDCL 38-22-22 provides in pertinent part that "[t]he responsibility for and the cost of controlling and eradicating weeds ... on all lands or highways owned or supervised by a state agency or subdivision shall be upon the state agency or subdivision supervising such lands or highways. ..." SDCL 31-31-2, however, provides in pertinent part that "[t]he owner or occupant of any land abutting or adjoining upon township roads shall cut, remove, or destroy or cause to be cut, removed, or destroyed, grass, weeds, trees, and brush growing on or in the right-of-way of such roads. ..." Facially, these statutes appear to conflict; SDCL 38-22-22 indicates that townships are responsible for eradicating weeds on or along township roads, while SDCL 31-31-2 indicates that this responsibility falls upon landowners.

Statutes must be read as a whole and in conformance with well-established principles of statutory construction. State v. I-90 Truck Haven Service, Inc., 2003 S.D. 51, ¶ 8, 662 N.W.2d 288, 291. "'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.'" Puetz Corp. v. SD Dept. of Revenue, 2015 S.D. 82, ¶ 16, 871 N.W.2d 632, 637 (quoting State v. Clark, 2011 S.D. 20, ¶ 10, 798 N.W.2d 160, 164). "'Words and phrases in a statute must be given their plain meaning and effect.'" Pete Lien & Sons, Inc. v. Zellmer, 2015 S.D. 30, ¶ 35, 865 N.W.2d 451, 463 (citations omitted). However, "[w]here conflicting statutes appear, ...reasonable construction [must be given] to both, and ...effect [must be given], if possible, to all provisions under consideration, construing them together to make them harmonious and workable." Meyerink v. Northwestern Public Service Company, 391 N.W.2d 180, 184 (S.D. 1986) (citations omitted). See also Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611.

I am aware that SDCL 2-14-4 provides that "[w]henever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs except where a contrary intention plainly appears." However, interpreting the weeds described in both SDCL 31-31-2 and SDCL 38-22-22 as "noxious weeds" would lead to a result that in my opinion the Legislature did not intend. "'[I]n construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result.'" Martinmaas, 2000 S.D. 85, ¶ 49 (quoting Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17). To interpret both SDCL 38-22-22 and SDCL 31-31-2 as both controlling the same types of weeds would result in making both townships and landowners responsible for controlling noxious weeds, with no entity then responsible for the control of all other weeds.

Therefore, it is my conclusion that the Legislature intended the term "weed" in SDCL 31-31-2 to refer to all other weeds beyond those noxious weeds controlled by SDCL 38-22-22. As such, the responsibility for controlling and eradicating noxious weeds on or along township roads has been placed upon the township. The responsibility for controlling all other weeds on or along township roads has been placed upon the abutting landowner.

In re Question 2:

The plain language of SDCL 31-31-3 permits a township's board of supervisors to determine the dates between which weeds shall be removed from township roads. SDCL 31-31-3 provides:

Time for weed removal. Grass, weeds, trees or brush referred to in §§ 31-31-1 and 31-31-2 shall be cut, removed, or destroyed between the first day of September and the first day of October of each year, or between dates annually fixed by the board of supervisors.

This language is carried over into SDCL 31-31-5 which provides:

Failure of abutting landowner to remove weeds — Removal by board of supervisors — Compensation for removal. If the owner or occupant of land abutting upon or adjoining township roads does not cut, remove, or destroy, or cause to be cut, removed, or destroyed, the grass, weeds, trees, or brush in the right-of-way of such roads between the first day of September and the first day of October, or between the dates annually fixed by the board, the board of supervisors of the township in which the land is located may employ a person or persons to immediately cut and remove the grass, weeds, trees, and brush on or in the right-of-way of such township roads with compensation at a rate to be fixed and paid by the board.

The emphasized language makes it clear that the Legislature has given a township's board of supervisors the express authority to establish the dates between which weeds shall be removed along township roads.

Very truly yours,

Marty J. Jackley
ATTORNEY GENERAL