Authority of counties to regulate noxious weeds without activating weed control boards

COUNTIES--WEED CONTROL BOARD--POLICE POWER--DEPARTMENT OF AGRICULTURE--Authority of counties to regulate noxious weeds without activating weed control boards

1.  Chapter 17.10 RCW establishes weed control boards to regulate noxious weeds.  RCW 17.10.040 sets out the procedure to activate a county noxious weed control board.  When a weed control board has not been activated, a county can nevertheless regulate noxious weeds under the authority of chapter 17.10 RCW, but only when a weed control board has been ordered to activate by the director of the Department of Agriculture.  A county may not continue without a weed control board for a second consecutive year.

2.   Article 11, section 11 of the Washington Constitution grants counties broad police power related to the general welfare of the people.  This authority must be consistent with laws enacted by the Legislature.  The Legislature has enacted a comprehensive system to regulate noxious weeds.  A county's exercise of authority to regulate noxious weeds under the police power would be inconsistent with this system.  Therefore, a county may not regulate noxious weeds pursuant to its police power authority.

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                                                                February 25, 1992

The HonorableC. Alan Pettibone
Director
Washington State Department of Agriculture
406 General Administration Building
Mail Stop:  2561
Olympia, Washington  98504-2561
                                                                                                                   Cite as:  AGO 1992 No. 1

Dear Dr. Pettibone:

            By letter previously acknowledged, you have asked our opinion on the following paraphrased questions:

            1.         Under what circumstances may a county use the authority granted to an activated noxious weed control board to combat noxious weeds under chapter 17.10 RCW, without activating such a board?
            2.         If a county noxious weed control board has not been activated or ordered to be activated pursuant to RCW 17.10.040, may a county nevertheless combat noxious weeds with county resources and personnel by virtue of any other legal authority?

            We answer the first question in the manner set forth in our analysis.  The answer to the second question is no.

                                                                    ANALYSIS

            The Legislature enacted chapter 17.10 RCW in order to limit economic loss associated with the presence and spread of noxious weeds on or near agricultural land.  RCW 17.10.905.  Chapter 17.10 RCW creates county noxious weed control boards which may be activated for purposes of combatting noxious weeds within the county.  The Legislature has also enacted two other chapters governing county control of noxious weeds: chapter 17.04 RCW, authorizing creation of weed districts, and chapter 17.06 RCW, governing intercounty weed districts.  All three of these chapters are material to our analysis.

            Question 1:

            Under what circumstances may a county use the authority granted to an activated noxious weed control board to combat noxious weeds under chapter 17.10 RCW, without activating such a board?

            RCW 17.10.020(1) creates in each county of the state a noxious weed control board.  This statute states that each such board "shall be inactive until activated pursuant to the provisions of RCW 17.10.040."  RCW 17.10.020(2).

            RCW 17.10.040 reads in its entirety:

                        An inactive county noxious weed control board may be activated by any one of the following methods:

                        (1)  Either within sixty days after a petition is filed by one hundred registered voters within the county or, on its own motion, the county legislative authority shall hold a hearing to determine whether there is a need, due to a damaging infestation of noxious weeds, to activate the county noxious weed control board.  If such a need is found to exist, then the county legislative authority shall, in the manner provided by RCW 17.10.050, appoint five persons to hold seats on the county's noxious weed control board.

                        (2)  If the county's noxious weed control board is not activated within one year following a hearing by the county legislative authority to determine the need for activation, then upon the filing with the state noxious weed control board of a petition comprised either of the signatures of at least two hundred registered voters within the county, or of the signatures of a majority of an adjacent county's noxious weed control board, the state board shall, within six months of the date of such filing, hold a hearing in the county to determine the need for activation.  If a need for activation is found to exist, then the state board shall order the county legislative authority to activate the county's noxious weed control board and to appoint members to such board in the manner provided by RCW 17.10.050.

                        (3) The director, with notice to the state noxious weed control board, may order a county legislative authority to activate the noxious weed control board immediately if an infestation of a class A noxious weed or class B noxious weed designated for control within the region wherein the county lies as defined in RCW 17.10.080 is confirmed in that county.  The county legislative authority may, as an alternative to activating the noxious weed board, combat the class A noxious weed or class B noxious weed with county resources and personnel operating with the authorities and responsibilities imposed by this chapter on a county noxious weed control board.  No county may continue without a county noxious weed control board for a second consecutive year if the class A noxious weed or class B noxious weed designated for control within the region wherein the county lies has not been eradicated.

(Emphasis added.)

            The three respective subsections of RCW 17.10.040 provide for activation of a noxious weed control board by the county legislative authority as a result of (1) a determination by the authority that a need for activation exists, following a hearing held on the authority's own motion or pursuant to petition by registered voters; (2) an order to activate by the state noxious weed control board upon a petition by registered voters or by members of an adjacent county's noxious weed control board; or (3) an order to activate from the director of the Department of Agriculture if an infestation of class A or class B noxious weeds is confirmed in the county.

            The term "inactive" is not defined in chapter 17.10 RCW. In absence of a statutory definition, we must assume the Legislature intended the common meaning of the word.  King Cy. Coun. v. Public Disclosure Comm'n, 93 Wn.2d 559, 561, 611 P.2d 1227 (1980); Pacific First Fed. Sav. & Loan Ass'n v. State, 92 Wn.2d 402, 409, 598 P.2d 387 (1979).  Webster's defines "inactive" as "not active: as a(1): marked by deliberate or enforced absence of activity or effort . . . b(1): being unused or out of use : lying idle : not functioning".  Webster's Third New International Dictionary 1139 (1966).  Thus, in requiring noxious weed control boards to remain inactive until activated, the Legislature clearly intended to preclude inactive noxious weed control boards from combatting noxious weeds under the authority of chapter 17.10 RCW. 

            Although RCW 17.10.020(2) precludes unactivated noxious weed control boards from combatting noxious weeds, RCW 17.10.040(3) does, in limited circumstances, allow the counties in which such unactivated boards are located to combat noxious weeds under the authority of chapter 17.10 RCW.  There the Legislature stated:

                        The director, with notice to the state noxious weed control board, may order a county legislative authority to activate the noxious weed control board immediately if an infestation of a class A noxious weed or class B noxious weed designated for control within the region wherein the county lies as defined in RCW 17.10.080 is confirmed in that county.  The county legislative authority may, as an alternative to activating the noxious weed board, combat the class A noxious weed or class B noxious weed with county resources and personnel operating with the authorities and responsibilities imposed by this chapter on a county noxious weed control board.  No county may continue without a noxious weed control board for a second consecutive year if the class A noxious weed or class B noxious weed designated for control within the region wherein the county lies has not been eradicated.

RCW 17.10.040(3) (emphasis added).

            We find significant the Legislature's placement of this alternate authority in RCW 17.10.040(3).  Activation under this subsection is conditioned in part upon an infestation of class A or B noxious weeds, and exercise of the alternate authority provided in this subsection is tied to combatting such an infestation.  Neither RCW 17.10.040(1) nor (2) mentions class A or B noxious weeds.  Therefore, we believe that RCW 17.10.040(3) limits a county's power to combat noxious weeds using the authority granted by chapter 17.10 RCW to those circumstances in which the director has ordered the county's inactive noxious weed control board to activate.

            In response to your first question, then, only when a county noxious weed control board has been ordered to activate by the director pursuant to RCW 17.10.040(3), may the county combat noxious weeds under the authority of chapter 17.10 RCW by means other than activating its noxious weed control board.  Thus, a county ordered to activate its noxious weed control board by the state noxious weed control board pursuant to RCW 17.10.040(2), could not invoke the alternate authority provided for in RCW 17.10.040(3).  Nor could a county invoke such authority if it determined, pursuant to RCW 17.10.040(1), that a need existed to activate its noxious weed control board.  The county's only option, under RCW 17.10.040(1) and (2), is to combat noxious weeds by activating the noxious weed board.

            In those circumstances in which a county does properly invoke the alternate authority pursuant to RCW 17.10.040(3), it may not use such authority for a period of longer than one year.

            Question 2:

            If a county noxious weed control board has not been activated or ordered to be activated pursuant to RCW 17.10.040, may a county nevertheless combat noxious weeds with county resources and personnel by virtue of any other legal authority?

            A county may exercise only those powers expressly granted to it by statute or the constitution, or those necessarily implied therefrom.[1]Spokane v. J-R Distrib., Inc., 90 Wn.2d 722, 726, 585 P.2d 784 (1978); Pacific First Fed. Sav. & Loan Ass'n v. Pierce Cy., 27 Wn.2d 347, 353, 178 P.2d 351 (1947).

            As noted earlier, chapter 17.10 RCW is not the sole statutory authority for the regulation of noxious weeds.  Chapters 17.04 and 17.06 RCW, respectively, govern the creation of county and intercounty weed districts.  RCW 17.10.900 explicitly states that any weed district formed under either of these chapters shall remain in effect despite the subsequent enactment of chapter 17.10 RCW, unless dissolved following a petition by 10 percent of the landowners in the weed district.  Thus, whether or not a noxious weed control board has been activated, or ordered to be activated pursuant to RCW 17.10.040(3), an existing weed district or intercounty weed district created pursuant to chapter 17.04 or 17.06 RCW nevertheless may combat noxious weeds in such district.[2]

            Although these statutes provide authority for combatting noxious weeds, we assume your question is directed to the situation where none of these statutory proceedings apply.  We are unaware of any other statute expressly authorizing county regulation of noxious weeds.  Therefore, we must examine the authority of a county to combat noxious weeds in the exercise of its police power.

            Article 11, section 11 of our state constitution grants counties broad police power.  It provides:

                        Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.

Const. art. 11, § 11.  Consistent with article 11, section 11, RCW 36.32.120(7) authorizes county commissioners to "[m]ake and enforce, by appropriate resolutions or ordinances, all such police and sanitary regulations as are not in conflict with state law".

            Thus, the police power of the counties is as extensive as that of the Legislature, and broad enough to encompass all measures reasonably and substantially related to the promotion of the general welfare of the people.  Hillis Homes, Inc. v. Snohomish Cy., 97 Wn.2d 804, 808, 650 P.2d 193 (1982); State v. Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980).  In AGO 65-66 No. 114, we concluded that a city could exercise its police power in order to control noxious weeds.[3]In responding to your second question, we must determine whether there is any reason why this power should not extend to noxious weed control by a county as well.

            The police power "requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws."  Spokane v. Portch, 92 Wn.2d 342, 346, 596 P.2d 1044 (1979); Haas v. Kirkland, 78 Wn.2d 929, 932, 481 P.2d 9 (1971).  The regulation of noxious weeds is most certainly a matter of local concern, as evidenced by the localized approaches to the problem taken by the Legislature in chapters 17.04, 17.06, and 17.10 RCW.  However, whether local police power regulation would be consistent with state law is problematic.

            A county's plenary police power ceases when the state enacts a general law concerning the particular subject, and there is no room for concurrent jurisdiction.  Spokane, 92 Wn.2d at 346.

                        Whether there be room for the exercise of concurrent jurisdiction in a given instance necessarily depends upon the legislative intent to be derived from an analysis of the statute involved.  If the legislature is silent as to its intent to occupy a given field, resort must be had to the purposes of the legislative enactment and to the facts and circumstances upon which the enactment was intended to operate.

Id.  (citations omitted).  A statute will not be construed as limiting the power of a county to legislate concurrently unless legislative intent to do so is clear.  Clallam Cy. Deputy Sheriff's Guild v. Board of Clallam Cy. Comm'rs, 92 Wn.2d 844, 850, 601 P.2d 943 (1979).

            In an opinion to Philip A. Davidson, Prosecuting Attorney, dated October 2, 1935, this office was asked whether a county had the authority to levy taxes or to appropriate money for weed control outside or in addition to budgets of weed districts organized under the then existing version of chapter 17.04 RCW.  The opinion reviewed the development of weed control law in Washington, and concluded that authority independent of chapter 17.04 RCW did not exist.  1935-36 Ops. Att'y Gen. 54.  This view also was taken in another opinion to Philip A. Davidson, Prosecuting Attorney, dated July 9, 1937 (1937-38 Ops. Att'y Gen. 114).[4]In essence, these opinions determined that chapter 17.04 RCW completely occupied the field of noxious weed control, and therefore preempted independent county regulation of noxious weeds.

            Although chapter 17.04 RCW has been amended on several occasions since these opinions were authored, we conclude that these later amendments do not materially affect the conclusions reached in the opinions.  Moreover, we believe that enactment of chapters 17.06 and 17.10 RCW suggests that the Legislature has even further occupied the field:  Chapter 17.06 authorizes the regional regulation of noxious weeds by intercounty weed districts, and, as we pointed out in AGO 1990 No. 11, chapter 17.10 RCW goes beyond chapter 17.04 RCW by extending regulation of noxious weeds from unincorporated portions of the county to the county as a whole.[5]

            Support for our conclusion is found throughout chapter 17.10 RCW.  First, RCW 17.10.020(1) creates in every county a noxious weed control board having jurisdictional boundaries of the entire county.  Thus, the Legislature has created in every county a board with authority to control noxious weeds throughout the county.  We question whether the Legislature would have created these boards statewide had it not intended that they be used should noxious weed control be necessary in a county.

            Second, RCW 17.10.040(1) and (2) suggest that whenever the need for noxious weed control exists, that need should be met by activating the county noxious weed control board.  For example, RCW 17.10.040(1) states that upon a petition or on its own motion, the county legislative authority shall hold a hearing to determine "whether there is a need, due to a damaging infestation of noxious weeds, to activate the county noxious weed control board."  (Emphasis added.)  If such a need is found, then the county must activate the board.  Id.  Similarly, if, one year following such hearing, the county has not activated its board, the state noxious weed control board may be petitioned to hold a second hearing to determine the need for activation.  If such a need is found, the state board must order the county to activate its board.  RCW 17.10.040(2).  Presumably, if a county determines that sufficient need exists to control noxious weeds through its independent police power, then the same determination would give rise to a duty under RCW 17.10.040(1) and (2) to activate the county board in order to achieve the same purpose.[6]Indeed, a county may only deactivate its noxious weed control board upon determining that no need exists for such a board.  RCW 17.10.890(3).

            Third, the Legislature considered direct regulation of noxious weeds by the counties and limited such regulation to the narrow circumstances of RCW 17.10.040(3).  This suggests that the Legislature intended for counties in need of noxious weed control to activate their boards pursuant to the mandates of subsections (1) and (2) of the statute, in the event that they are ineligible to regulate noxious weeds directly via the authority granted in RCW 17.10.040(3).

            A fourth reason for our conclusion that chapter 17.10 RCW preempts independent county regulation of noxious weeds lies in the fact that the chapter provides for regulation of noxious weeds, whether or not the county chooses to activate its noxious weed control board.  If the county does activate its board, then it has the powers and duties set out in the chapter.  If, on the other hand, the county chooses not to activate its board, the director is empowered to conduct searches on private property, issue citations and civil infractions, directly control noxious weeds, place liens on property, and exercise other powers pursuant to the same authorities and responsibilities imposed on activated noxious weed control boards.  RCW 17.10.074(1)(g).  Had the Legislature intended for counties, rather than the director, to have such authority, it easily could have said so.  It did not.  Also, any direct regulation of noxious weeds by the counties could conflict with the director's authority granted in the statute.

            Finally, we find support for our conclusion in RCW 17.10.905, which provides, in part:

                        The intent of the legislature is that this chapter be liberally construed, and that the jurisdiction, powers, and duties granted to the county noxious weed control boards by this chapter are limited only by specific provisions of this chapter or other state and federal law.

            We believe that the Legislature intended few limitations on the jurisdiction, powers and duties granted to county noxious weed control boards under the chapter, because it viewed the chapter as providing a comprehensive basis for regulation of noxious weeds in counties of this state.  In our opinion, it would be contrary to this broad mandate and comprehensive regulatory scheme to conclude that individual counties may venture beyond the statutory framework of Title 17 in combatting noxious weeds.[7]Therefore, the answer to the second question is no.

            We trust that the foregoing will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    JOSEPH E. SHORIN III
                                    Assistant Attorney General
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