(1) This section shall apply to noxious weeds that have been classified as list A species and to populations of list B species designated for eradication pursuant to section 35-5.5-108 (2)(a). This section shall govern the responsibilities of the commissioner, local governing bodies, and affected landowners.
(2) Duties of commissioner. (a) The commissioner may enforce the provisions of this section as necessary to ensure the cooperation of local governing bodies and affected landowners.
(b) The commissioner shall provide:
Educational resources to local governing bodies and affected landowners regardingthe eradication of list A species and populations of list B species designated for eradication. Such education shall include an explanation of why the species has been listed for eradication, the prescribed techniques for eradication in the most cost-effective manner, and the duties of the local governing body and affected landowner regarding such eradication.
Financial or in-kind resources to local governing bodies or affected landowners toeradicate list A species and populations of list B species designated for eradication from the available moneys in the noxious weed management fund created in section 35-5.5-116. Such financial or in-kind resource allocation shall be determined by the commissioner according to the identified benefits to the citizens of Colorado, the surrounding community, and the affected landowners.
The inventory and mapping infrastructure necessary to facilitate the classification ofstate noxious weeds and the development and implementation of state noxious weed management plans.
(3) Duties of local governing bodies. (a) In compliance with the rules promulgated by the commissioner, a local governing body shall initiate and maintain communications with landowners who are affected by list A species and populations of list B species designated for eradication by the commissioner.
(b) In addition to the existing powers and duties of a local governing body provided in this article a local governing body shall:
Provide affected land owners with technical assistance for the eradication of list Aspecies and populations of list B species designated for eradication by the commissioner;
Carry out sufficient measures, including project oversight and enforcement, as maybe necessary to ensure the eradication of list A species and populations of list B species designated for eradication by the commissioner;
Provide the commissioner with assistance in disseminating financial resources toaffected landowners and mapping data pursuant to rules promulgated by the commissioner; and (IV) Determine the cost of eradication to be borne by affected landowners.
Local governing bodies may apply to the commissioner for a waiver of compliancewith an eradication designation pursuant to section 35-5.5-108 (2.7).
If the commissioner determines, in consultation with the local governing body, thatthe most cost-effective manner to eradicate designated noxious weeds is for the commissioner to implement an eradication program, the commissioner may implement the eradication program directly.
Duties of affected landowners or occupants. Except as provided pursuant to section 35-5.5-104.5 (1)(a), an affected landowner or occupant whose property may be affected by list A species or by populations of list B species designated for eradication shall allow the commissioner or local weed control officials access to such property for the purpose of immediate inspection and eradication when at least one of the following events has occurred:
The affected landowner or occupant has requested the inspection;
A neighboring landowner or occupant has reported a suspected noxious weed infestation and requested an inspection; or
An authorized agent of the local government or commissioner has made a visualobservation from a public right-of-way or area and has reason to believe that a noxious weed infestation exists.
(5) (a) If verbal permission to inspect the land by the affected landowner is not obtained, no entry upon any premises, lands, or places shall be permitted until the local governing body has notified the affected landowner that such inspection is pending by certified mail if the landowner's mailing address is within the United States or mailed in a comparable manner to a landowner whose mailing address is outside of the United States. Where possible, inspections shall be scheduled and conducted with the concurrence of the affected landowner or occupant. A local governing body may notify an affected landowner in an electronic format, in addition to notice by certified mail.
(b) (I) If, after ten days with no response from the affected landowner or upon denial of access before the expiration of ten days, the inspector may seek an inspection warrant issued by a municipal, county, or district court having jurisdiction over the land. The court shall issue an inspection warrant upon presentation by the local governing body of an affidavit stating:
The information that gives the inspector reasonable cause to believe that any provision of this section, section 35-5.5-104.5, or section 35-5.5-108, is being or has been violated;
The affected landowner has failed to respond or the landowner or occupant has denied access to the inspector; and
A general description of the location of the affected land.
(II) No affected landowner or occupant shall deny access to an authorized agent of the local governing body or the commissioner in possession of an inspection warrant.
An affected landowner shall notify a lessee or occupant of affected lands of all notices of inspection and eradication efforts on such lands as soon as practicable.
The local governing body of the county or municipality having jurisdiction over private and public lands on which list A species or populations of list B species designated for eradication are found shall notify the affected landowner or occupant of such lands by certified mail if the landowner's mailing address is within the United States or mailed in a comparable manner to a landowner whose mailing address is outside of the United States. The notice shall name the noxious weeds, identify eradication as the required management objective, advise the affected landowner or occupant to commence eradication efforts within a specified period or condition, and state the integrated weed management techniques prescribed by the commissioner for eradication. Where possible, the local governing body shall consult with the affected landowner or occupant in the development of a plan for the eradication of noxious weeds on the premises or land.
Within five days after the local governing body mails notification, the landownershall comply with the terms of the notification or submit an acceptable plan and schedule for the completion of the management objective.
(a) In the event the affected landowner or occupant fails to comply with the notice to eradicate the identified noxious weeds and implement an appropriate eradication program, the local governing body having authority over the public or private land shall:
(I) Provide for and complete the eradication of such noxious weeds at such time, upon such notice, and in such manner consistent with achieving the management objective as the local governing body deems appropriate; and (II) Do one of the following:
Assess the whole cost of the eradication, including up to one hundred percent ofinspection, eradication, and other incidental costs in connection with eradication, upon the lot or tract of land where the noxious weeds are located; except that no local governing body shall levy a tax lien against land it administers as a part of a public right-of-way. Such assessment shall be a lien against each lot or tract of land until paid and shall have priority over all other liens except general taxes and prior special assessments. Such assessment may be certified to the county treasurer of the county in which the property is located and collected and paid over in the same manner as provided for the collection of taxes. Any funds collected pursuant to this section shall be utilized in furtherance of the local governing body's weed management efforts.
In the event the state board, department, or agency fails to comply with the notice toeradicate the identified noxious weeds, the local governing body in whose jurisdiction the infestation is located may enter upon such lands and undertake the management of such noxious weeds or cause the same to be done. The expenses associated with inspection and eradication shall be paid by the state board, department, or agency that has jurisdiction over the lands. An agreement for reimbursement shall be reached within two weeks after the date such statement of expense for eradication is submitted by the local governing body. Such reimbursement agreement shall be in writing. If no reimbursement agreement has been reached or the amount reflected in the agreement is not paid upon presentation, the amount in the agreement shall be submitted to the state controller, who shall treat such amount as an encumbrance on the budget of the state board, department, or agency involved or such charge may be recovered in any court with jurisdiction over such lands. The expense associated with eradication may be recovered in any court with jurisdiction over such infested land.
(b) No local governing body shall provide for or compel the eradication of list A species and populations of list B species designated for eradication or list B noxious weeds on private or public property pursuant to this subsection (9) without first applying the same measures to any land or rights-of-way owned or administered by the local governing body that are adjacent to the property.
The local governing body, through its delegates, agents, or employees, shall havethe right to enter upon any premises, lands, or places during reasonable business hours for the purpose of ensuring compliance with the requirements of this section concerning noxious weed eradication.
No agent, employee, or delegate of a local governing body shall have a cause ofaction against an affected landowner or occupant for personal injury or property damages while on private or public land for purposes of eradication of noxious weeds except when such damages were the result of gross negligence, recklessness, or intentional action by the landowner.
If, in the opinion of the commissioner, any local governing body fails to adequatelyperform any of the duties set forth in this section, the commissioner is authorized to conduct any of the functions or duties of a local governing body pursuant to this section.
The commissioner or the local governing body may require the affected landownerto pay a portion of the costs associated with eradication of the noxious weeds.
An affected landowner may apply to the commissioner for a waiver of compliancewith an eradication designation pursuant to section 35-5.5-108 (2.7).
For the purposes of this section, an "occupant" shall not include the owner of aneasement or right-of-way.
Source: L. 2003: Entire section added, p. 2417, § 3, effective August 6.