County Board of Supervisors Has Broad Discretion Controlling Noxious Weeds

On July 20, 2022, the Iowa Court of Appeals affirmed the denial of a petition asking for a writ of mandamus to compel the Madison County Board of Supervisors to destroy noxious weeds on a neighbor’s land. While the county Weed Commissioner can destroy the weeds and charge the expense to the landowner,  that is not the exclusive remedy available for a landowner’s noxious weed violation. Instead, a county weed commissioner can work with a landowner over extended periods of time to address noxious weed violations. The Court further reasoned that a writ of mandamus is an inappropriate legal remedy in this circumstance since the landowner could file a nuisance lawsuit against the neighbor.  

Facts

In September 2019, the plaintiff, a Madison County landowner, filed a petition for a writ of mandamus asking the Madison County District Court to compel Madison County and three County Supervisors to perform their noxious weed duties under Iowa Code chapter 317. A claim against the county attorney was dismissed through summary judgment because a writ of mandamus is unavailable to compel a county attorney to prosecute.

During 2018 and 2019, the landowner brought numerous complaints of noxious weed seed drift against his neighbor to the attention of the Madison County Board of Supervisors (Board), as well as the county attorney and sheriff.   In 2018, Weed Commissioner Root sent the neighbor a notice of violation. Commissioner Root then retired in late 2018. The position went unfilled with four applicants turning down the position. Commissioner Smith was hired June 2019.

Commission Smith sent a notice of violation to the landowner’s neighbor, but the notice was returned undelivered. Commissioner Smith then went to the property on July 31, 2019, and talked to the neighbor about the noxious weed problem on the neighbor’s land. Commissioner Smith returned on August 5 and inspected the property, finding no thistles on the fence line.  Commissioner Smith thought the problem was resolved after visiting the property more than six times to ensure there were no issues with noxious weeds.

The landowner complained about his neighbor’s weeds again in 2020. Commission Smith spoke to the neighbor and sent a notice of violation. The neighbor mowed and sprayed; Commissioner Smith inspected the property and thought the problem was resolved.  Madison County Supervisor Fitch visited the property in July 2020 and found thistles in low lying wetland areas. She talked to the neighbor, who later assured her that the thistles were removed.

A bench trial on the writ of mandamus against the County and County Supervisors was held April 2021.  In June 2021 the district court denied the landowner’s petition and did not issue a writ of mandamus. The landowner appealed the denial of the petition, claiming the County had a mandatory duty to enforce Iowa Code chapter 317.  Pettit also appealed the grant of summary judgment dismissing the claim against the county attorney.

Court of Appeals Decision

On appeal, the Court of Appeals upheld the district court on both issues. Under Iowa law, a writ of mandamus is appropriate only for ministerial acts. Ministerial acts are those where the government actor has no discretion as to how it carries out its duties.  If the act is ministerial and the government fails to act, then a writ of mandamus may be properly issued. If the act is non-ministerial, then  a writ of mandamus can only be ordered if the government officials have acted in an arbitrary or capricious manner.

The court reasoned that the statutory authority granted to the weed commissioner supports a finding that a county’s weed control is a discretionary act. If there is a weed commissioner, they are tasked with controlling noxious weeds within the farmlands of the county.[i]  Iowa Code § 317.6 directs the weed commissioner to notify a landowner of a noxious weed violation.  Five days after the notice is given, Iowa Code § 317.16 states that the weed commissioner “may” go onto the property to eradicate the weeds; it does not say  the Commissioner “shall.”

The Court further stated that Iowa Code § 317.3 allows a Board to appoint a county weed commissioner, but does not mandate that the Board control the commissioner through ordinances or explicit direction. The court explained that this demonstrates that there is wide latitude given to the Board on how it approaches controlling noxious weeds.

Here, the Board tried to employ a county weed commissioner at all times. When there was a commissioner, he worked with the landowner’s neighbor over time to address the issue, and he did. A county board member visited the neighbor and took action on the problem.

Thus, the Court found that the Board upheld its duty under Iowa Code chapter 317. It had the discretionary authority to choose an appropriate enforcement action to address the neighbor’s noxious weed violation. The county, acting through the weed commissioner, did not act in an arbitrary and capricious manner and therefore a writ of mandamus would not be appropriate. Finally, the court noted that a writ of mandamus is not allowed when there is an alternative legal remedy for the plaintiff. Here, the court found that a private nuisance a