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 But the statutes referenced in 76-1 had since been amended or repealed, so the legal landscape was unclear.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 Although the underlying statutes had been amended (SDCL 38-12-2 and 38-12-3 repealed; SDCL 38-22-22 and 38-22-24 amended to remove the literal "noxious weeds" phrase), the AG concluded the structural answer was unchanged.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 the designated noxious weeds (those on the state and county noxious-weed 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 does not remove the vegetation as required, SDCL 31-31-5 allows the board to employ someone to do it, with compensation fixed and paid by the board.

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 township boards of supervisors, the opinion assigns the cost and responsibility for noxious weed control on township roads to the supervising township. Other vegetation remains the abutting landowner's responsibility. The board may fix annual removal dates under SDCL 31-31-3 and 31-31-5.

For a county weed and pest board receiving a question about a township road, the opinion identifies which party has the weed-control duty. It does not decide what enforcement steps the county board may take.

For abutting landowners, SDCL 31-31-2 requires removal of grass, other weeds, trees, and brush from the adjoining township-road right-of-way. Check whether the township board fixed annual dates different from the September 1 to October 1 statutory window. If the work is not done, SDCL 31-31-5 allows the board to employ someone, with the board paying that person's compensation.

For counsel advising a township, the opinion supplies a two-category allocation: the supervising township handles noxious weeds on or along its roads, and abutting landowners handle other vegetation under SDCL 31-31-2.

For state weed-control staff, the opinion identifies the agency or subdivision supervising a highway as responsible for noxious weeds there under SDCL 38-22-22.

Common questions

Q: What is a noxious weed in SD?
A: The opinion distinguishes noxious weeds from other vegetation but does not list particular species. Check the applicable noxious-weed designation before assigning the duty for a particular plant.

Q: What counts as an "ordinary" weed for landowner-duty purposes?
A: Under the opinion's allocation, the abutting landowner's duty covers weeds other than noxious weeds, as well as the grass, trees, and brush named in SDCL 31-31-2.

Q: Is the duty limited to the traveled road surface?
A: No. SDCL 31-31-2, as quoted in the opinion, addresses vegetation growing on or in the right-of-way of the adjoining township road.

Q: What if the landowner refuses to mow?
A: SDCL 31-31-5 allows the township board to employ someone to remove the vegetation. The quoted statute says that person's compensation is fixed and paid by the board. The opinion does not say the board can charge the landowner or collect the cost through taxes.

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: The opinion reads SDCL 38-22-22 to place both the responsibility and cost of controlling noxious weeds on the township that supervises the road.

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: Does this opinion identify which individual plants are noxious weeds?
A: No. It allocates responsibility by weed category. Determine whether a particular plant is designated as noxious before applying that allocation.

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 31-31-2 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 allows the board to employ someone if the required removal is not done and says the board fixes and pays that person's compensation.

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. The opinion explains that the earlier provisions on noxious weeds were amended after the 1976 AG opinion.

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 31-31-2 (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 2-14-4 (uniform application of statutory definitions)
• SDCL 38-12-2 (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