DISTRICTS - WEEDS - ENFORCEMENT OF ERADICATION OF NOXIOUS WEEDS WHERE DISTRICT IS PARTIALLY OR WHOLLY WITHIN WEED EXTERMINATION AREA

DISTRICTS - WEEDS - ENFORCEMENT OF ERADICATION OF NOXIOUS WEEDS WHERE DISTRICT IS PARTIALLY OR WHOLLY WITHIN WEED EXTERMINATION AREA

(1) The directors of a weed district are authorized to employ a weed inspector even though a weed supervisor may have been appointed for the weed extermination area by the county commissioners and the state director of agriculture.  (2) Where a weed district is located within a weed extermination area, the district has exclusive jurisdiction over the eradication of weeds within the district so long as it exercises its powers and functions.  (3) The duty of conducting a hearing to determine costs of eradication of weeds devolves upon the board of county commissioners and the director of the department of agriculture where the weed extermination area has assumed responsibility for eradication of weeds.  (4) and (5) It is necessary that there be a board of directors of the weed district even though there is also a weed extermination area, and the powers and duties of the directors are specified in chapter 17.04. RCW.

                                                                 - - - - - - - - - - - - -

                                                                October 28, 1959

Honorable John Panesko
Prosecuting Attorney
Lewis County
Chehalis, Washington                                                                                           Cite as:  AGO 59-60 No. 80

Dear Sir:

            By letter previously acknowledged, you requested the opinion of this office on certain questions which we paraphrase as follows:

            (1) Are the directors of a weed district authorized to employ a weed inspector as provided in RCW 17.04.150 if the county commissioners appoint a weed supervisor as provided in RCW 17.08.080?

            (2) In the enforcement of RCW 17.08.120 regarding the eradication of noxious or poison weeds does a weed extermination area assume exclusive jurisdiction of the eradication of such weeds in a weed district which is located within a weed extermination area?

            (3) Does the duty of conducting a hearing to determine costs for the eradication of weeds devolve upon the  [[Orig. Op. Page 2]] board of county commissioners and director of the state department of agriculture if the weed extermination area has assumed responsibility for the eradication of the weeds?

            (4) Is it necessary that there be a board of directors of the weed district where there is also a weed extermination area?

            (5) If the answer to question (4) is in the affirmative, what powers do they have and what would their duties be?

            We answer questions one, three and four in the affirmative; question two in the negative; and question five in the manner hereinafter set forth in our analysis.

                                                                     ANALYSIS

            RCW 17.08.020 sets up the procedure to be followed in the establishment of a weed extermination area.  Upon petition of registered landowners representing not less than 5 per cent of the number of farms in the county, the board of county commissioners and the director of the state department of agriculture are to investigate the matter and to hold a public hearing.  The act further provides for the creation of a weed extermination area or areas,

            ". . . when the boards of county commissioners and the director of the department of agriculture of the state of Washington find the creation of such an area and the extermination of noxious or poison weeds or plants growing thereon to be in the interest of the general public welfare of their respective counties or of the state of Washington, and when such investigation shows that conditions are such as to prevent the organization of a weed district in the manner prescribed in RCW 17.04.010 through 17.04.140, 17.04.240 and 17.04.250. . . ."  (Emphasis supplied)

            And in addition, the act provides that:

            ". . .Any weed district organized or reorganized as provided in RCW 17.04.010 through 17.04.140, 17.04.240 and 17.04.250 is hereby authorized to maintain its status and organization and to exercise all powers and subject to the limitations  [[Orig. Op. Page 3]] granted to it in prior sections of this chapter,even when part or all of such weed district is also included in a weed extermination area."  (Emphasis supplied)

            The legislature made it clear that in those instances where a weed district did exist and a portion of it, or all of it, was included in a weed extermination area, the weed district would continue to operate as it had prior to the establishment of the weed extermination area.

            With the foregoing in mind, we answer your questions as follows:

            (1) RCW 17.04.150 provides specifically as follows:

            "The board of directors of such weed district shall have the power:

            ". . .

            "(2) To appoint a weed inspector and to require from him a bond in such sum as the directors may determine for the faithful discharge of his duties, . . ." (Emphasis supplied)

            It is clear from the foregoing statutory provisions that the directors of the weed district are authorized to employ a weed inspector regardless of the fact that the county commissioners and the director of the state department of agriculture may have engaged a weed supervisor in a weed extermination area as authorized by RCW 17.08.080.

            (2) As we have previously pointed out, RCW 17.08.020 expressly authorizes a weed district to maintain its status and organization and to exercise all powers granted to it under chapter 17.04 RCW even though a part or all of the weed district is included within a weed extermination area.

            In addition, RCW 17.08.060, which is concerned with the duties of the boards of county commissioners and the director of the state department of agriculture, provides as follows:

            "It shall be the duty of the boards of county commissioners and the director of the state department of agriculture: (1) To determine what methods, rules and regulations are to be used and the specific weed, weeds or plants to be destroyed, prevented or exterminated in the weed extermination areas established: Provided, That the directors of any weed district organized and continuing under chapter 17.04 [[chapter 17.04 RCW]]shall have final approval of any regulations 17.04shall have final approval of any regulations  [[Orig. Op. Page 4]]applying on crop lands to weeds general distributed within the boundaries of such weed districts; (2) to carry out, or cause to be carried out, these designated methods, rules and regulations on the weeds or plants specified; . . . and (3) upon information of the existence of any noxious or poison weed not generally distributed within the state, to thoroughly investigate the existence and the probability of the spread thereof and to establish, maintain and enforce such regulations as in their opinion are necessary to circumscribe and exterminate or prevent the spread of such weed."  (Emphasis supplied)

            RCW 17.04.050,supra, specifically authorizes the board of directors to adopt rules and regulations and "to supervise, carry out and enforce such rules, regulations, plans, methods and means."

            It is a general rule that there cannot at the same time within the same territory exist two distinct municipal corporations exercising the same power.  Royer v. Public Utility District No. 1, 186 Wash. 142, 56 P. (2d) 1302.

            The general rule of law that the exercise of jurisdiction by one municipal corporation suspends any jurisdiction by another municipal corporation is stated inBayha v. Public Utility District No. 1, 2 Wn. (2d) 85, 103, 97 P. (2d) 614:

            ". . . under a general well established rule of law, two municipal corporations, having concurrent jurisdiction and having in part the same granted powers, cannot exercise such identical powers, at the same time, in the same territory. . . ."

            See McQuillin, Municipal Corporations, 3rd ed. Vol. 2, § 7.08, p. 269.  Although the weed extermination areas in question are quasi-municipal corporations, the rule is clearly applicable.

            It is our opinion that the board of directors of a weed district is vested with exclusive jurisdiction concerning the extermination of noxious and poison weeds within the weed district.  Rules and regulations which have been promulgated by the county commissioners and the director of the state department of agriculture may be used by the directors of the weed district and enforcement made pursuant to said rules and regulations, if the directors in their discretion approve said regulations.  It would appear, however, that a weed extermination area  [[Orig. Op. Page 5]] would have no power to enforce its regulations within the weed district without the approval of the directors of the district.  However, there would appear to be no statutory limitation on the right of the board of county commissioners and the state director of agriculture to cooperate with the board of directors of the weed district in carrying out mutually agreeable regulations.  We note that RCW 17.08.100 specifically authorizes the board of county commissioners and the director of agriculture to cooperate with other governmental, public or private agencies in carrying out the purposes of the act.

            We conclude that a weed extermination area does not have exclusive jurisdiction of the eradication of noxious and poisonous weeds within a weed district but merely has concurrent jurisdiction, which jurisdiction is suspended in areas where the weed district is carrying out its powers and duties under chapter 17.04 RCW.

            (3) The answer to question three is in the affirmative and further discussion of this question is foreclosed by § 8, chapter 205, Laws of 1959, which amends RCW 17.08.120:

            "If the board and the director find that noxious or poison weeds are in danger of going to seed on crop land contrary to the adopted methods, rules and regulations, . . . they shall give notice and follow the procedure set forth for weed districts for the eradication and control of such weeds:  Provided, That at the conclusion of the hearing to assess costs and after evidence thereon, the board shall find whether such failure by the owner to cut or otherwise destroy such noxious or poison weeds was wilful and, if it shall so find, it shall further assess a charge in an amount not to exceed the cost of such cutting or destruction as determined at the hearing plus ten dollars for preparation of notices, and in addition thereto filing fees and service costs: . . ." (Emphasis supplied)

            The procedures prescribed for weed districts including the hearing to determine costs, are set forth in RCW 17.04.200, 17.04.220.

            Of course, if the weed district has assumed responsibility for the eradication of the weeds within the district, as previously discussed, then the hearing is conducted before the board of directors of the district, and no hearing would then be authorized before the board of county commissioners.

            (4) In answer to your fourth question, it is essential that there be a board of directors of a weed district.  See RCW 17.04.070.  This  [[Orig. Op. Page 6]] requirement is not affected by the fact that the weed district may be located within a weed extermination area in view of the answer to your second question.  As we have previously pointed out, RCW 17.08.020, supra, explicitly authorizes a weed district to ". . . maintain its status and organization and to exercise all powers previously granted to it."

            (5) In answer to your fifth question, we direct your attention to RCW 17.04.150,supra, which specifically sets forth the powers of the directors of a weed district.  In addition, RCW 17.04.190 enumerates the duties of the weed inspector appointed by the board.  The specific duties of the directors are found in chapter 17.04 RCW and are too numerous to recite in detail.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP M. RAEKES
Assistant Attorney General