3-204

3-204. Summary abatement of imminently dangerous
nuisance; procedure; expense; lien; public sale; reimbursement costs
and penalties to state for certain abatements

A. If, in the opinion of the director, the danger to the agricultural and
horticultural industry of the state is imminent if the nuisance caused by a plant or
thing is not speedily abated or suppressed, and if he finds it is practical to summarily
abate the nuisance, either by the destruction of the plant or thing or by the treatment
thereof so as to destroy or eradicate the crop pest or disease without actually
destroying the plant or thing, the director shall in writing direct the owner or person
in charge of the nuisance, if he is found in the county, forthwith and at his expense to
abate and suppress the nuisance in the manner provided in the written direction. If the
owner or person in charge fails or neglects to comply with the direction for a period of
five days after the date on which the direction was delivered to or served upon him, then
the director shall summarily abate the nuisance in the manner specified in the written
direction.

B. If the owner or person in charge or control of the nuisance is a nonresident of
the state or cannot, after reasonable diligence by the director, be found within the
county where the nuisance exists, the director shall publish the notice and the direction
one time in a newspaper published in the county, and shall post a copy at, on or in the
immediate vicinity of the nuisance, and after seven days from the first publication and
posting, the director shall abate the nuisance in the manner specified in the direction.

C. If the nuisance is abated by the director the expense shall be borne by the
state, but, when the abatement does not involve the destruction of the plant or thing and
it has some value after the crop pest or disease has been eradicated, then the state
shall have a first claim and lien thereon for the payment of expenses incurred in the
abatement of the nuisance.

D. The director shall notify the owner or person in charge or control of the
nuisance of the amount of the expenses, and that unless the amount is paid within ten
days after the date of service of the notice upon the owner or person in charge, the
plant or thing will be sold at public sale, and the proceeds, or so much thereof as may
be necessary, applied to the payment of the expenses. The notice shall be personally
served or posted as required in this section for notices to abate.

E. If the owner or person in charge of the plant or thing fails to pay the expenses
within the time specified in the notice, the director shall give public notice of the
time and place of sale with a description of the plant or thing to be sold, and the
amount of expenses against it, which shall include costs of publication, posting and
service of notice. The notice of sale shall be published and posted as provided in this
section for the publication and posting of direction to suppress the nuisance.

F. The owner or person in charge of a plant or thing constituting the nuisance may
waive in writing the service of all directions and notices in connection with the
abatement or sale thereof.

G. If the director is required to abate the nuisance of cotton or cotton stubble
which is not destroyed before a date established by the director or is required to abate
the nuisance of cotton planted before a date established by the director, unless the
director waives such dates due to variations in weather conditions, following the refusal
by the owner or person in charge or control of the nuisance to do so, the owner or person
in charge or control of the nuisance shall reimburse the department for the actual costs
of the state's abatement of the nuisance. An injunction shall not be granted to stay
this state from abating the nuisance. To collect the costs of reimbursement, the
director may either request reimbursement from the cotton research and protection council
under programs of the council to abate cotton fields or from the owner or person in
charge. If the actual costs of abatement are not paid within ten days after the owner or
person in charge receives notice of the amount of the costs, the director may impose a
penalty of fifty per cent of the costs of abatement and may prepare and file or record in
the office of the county recorder of the county where the land is situated a notice of
lien, setting forth the amount of the unpaid costs, the amount of the penalty and the
name of the owner or person in charge. Upon such recording, the amount required to be
reimbursed becomes a lien on the land subordinate only to any lien for state and local
taxes. The director may issue a notice of abatement penalty to be applied to any rebate
authorized pursuant to section 3-1083, subsection B, paragraph 4 and section 3-1087,
subsection B. All penalties collected under this section shall be deposited in the
cotton research and protection council fund established by section 3-1085.