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

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 the director 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 the owner or person is found in the county, forthwith and at the owner's or person's 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 on the owner or person, 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, 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 on 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 stub, soca or volunteer cotton 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. The director may request the cotton research and protection council to provide monies pursuant to section 3-1085, subsection B to help defray the department's cost of abatement until the owner or person in charge reimburses the department for those costs. 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 civil penalty of fifty per cent of the costs of abatement. At the director's request, the attorney general shall file an action in superior court to recover civil penalties assessed pursuant to this subsection. All civil penalties collected under this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the dangerous plants, pests and diseases trust fund established by section 3-214.01.