Chapter 21 - Dutch Elm Disease



Be it ordained by the City Council of the City of Lakota, North Dakota, as follows:

SECTION 1  Intent and purpose of ordinance:  Dutch Elm Disease and Elm Bark Beetles declared Public Nuisances.

Whereas, the City Council has determined that there are many elm trees growing on public and private premises within the city of Lakota, the loss of which would substantially depreciate the value of public and private property, impair the use and enjoyment of public and private premises and erode the tax base of the city and that the health and life of such trees is threatened by a fatal disease known as Dutch Elm Disease, which is spread by the elm bark beetles (Scolytus Multistriatus (Eichb.) or Hylurgopinus Rufipes (March.), the council hereby declares its intention to control and prevent the spread of such disease and the insect pests and vectors which carry such disease and declares Dutch Elm Disease and the elm bark beetles which carry such disease to be public nuisances.

SECTION 2  City Forester

The office of City Forester is hereby created to be filled by appointment by the City Council.  The City Forester shall have the powers and perform the duties imposed by this ordinance.

SECTION 3  Definitions

As used in this ordinance, unless otherwise clearly indicated by the context:

  1. “Public Nuisance” means

(1)    Dutch Elm Disease

(2)    Elm Bark Beetles Scolytus Multistriatus (Eichb.) or Hylurgopinus Rufipes (Marsh.)

(3)    Any living or standing elm tree or part thereof infected with the Dutch Elm Disease fungus or in a weakened condition which harbors any of the elm bark beetles, Scolytus multistriatus (Eichb.) or Hylurgopinus Rufipes (Marsh.).

(4)    Any dead elm tree or part thereof, including logs, branches, stumps, firewood or other elm material from which the bark has not been removed and burned or sprayed with an effective elm bark beetle destroying concentrate.

  1. “Public Property” means premises owned or controlled by the city including without limitation because of enumeration, public sites, parks, playgrounds, streets, alleys, sidewalks, boulevards, and the terrace strip between the lot line and the curb or improved portion of any public way.
  2. “Person” means person, firm or corporation.

SECTION 4  Inspection

  1. The city forester shall inspect or cause to be inspected at least twice each year all premises and places within the city to determine whether any public nuisance exists thereon.  He shall also inspect or cause the inspection of any elm tree reported or suspected to be infected with the Dutch Elm disease or any elm bard bearing material reported or suspected to be infested with elm bark beetles.
  2. Whenever necessary to determine the existence of Dutch Elm disease or elm bark beetles in any tree, the person inspecting such tree shall remove or cut specimens from the tree in such manner as to avoid permanent injury thereto and deliver such specimens to the forester who shall forward them to an official diagnostic laboratory for analysis to determine the presence of such nuisances.
  3. The forester and his agents or employees shall have authority to enter upon private premises at reasonable time for the purpose of carrying out any of the provisions of this ordinance.

SECTION 5  Abatement of Nuisances:  Duty of Forester

  1. The forester shall order, direct, supervise and control the abatement of public nuisances as defined in this ordinance by spraying, removal, burning or by other means which he determines to be necessary to prevent as fully as possible the spread of Dutch Elm disease fungus or the insect pests or vectors known to carry such disease fungus.
  2. Whenever the forester after inspection or examination shall determine that a public nuisance as herein defined exists on public property in the city, shall immediately abate or cause the abatement of such nuisance in such manner as to destroy or prevent as fully as possible the spread of Dutch Elm disease or the insect pests or vectors known to carry such disease fungus.
  3. (1)  When the forester shall determine with reasonable certainty that a public nuisance exists upon private premises (or upon the terrace strip between the lot line and the curb), he shall immediately serve or cause to be served personally or be registered mail upon the owner of such property (or the abutting property), if he can be found, or upon the occupant thereof, a written notice of the existence of such nuisance and of a time and place for a hearing, not less than 14 days after service of such notice, on the abatement action to be taken.  Such notice shall describe the nuisance and recommended procedures for its abatement, and shall further state that unless the owner shall abate the nuisance in the manner specified in the notice, or shall appear at the hearing to show that such nuisance does not exist or does not endanger the health of elm trees in the city, the forester shall cause the abatement thereof at the expense of the property served (or abutting property).  If the owner cannot be found, such notice shall be given by publication in a newspaper of general circulation in the city.

(2)  If after hearing held pursuant to this subsection it shall be determined by the forester that a public nuisance exists, he shall forthwith order the immediate abatement thereof.  Unless the property owner abates the nuisance as directed within 24 hours after such hearing, the forester shall proceed to abate the nuisance and cause the cost thereof to be assessed against the property in accordance with the procedures provided in this ordinance.  The forester may extend the time allowed the property owner for abatement work but not to exceed 10 additional days.

SECTION 6  Spraying

  1. Whenever the forester shall determine that any elm tree or part thereof is infected with Dutch Elm disease fungus or is in a weakened condition and harbors elm bark beetles, he may cause all elm trees within a 1,000 foot radius thereof to be sprayed with an effective elm bark beetle destroying concentrate as recommended by the State Entomologist.
  2. In order to facilitate the work and minimize the inconvenience to the public of any spraying operations conducted under this ordinance, the forester shall cause to be given advance public notice of such operations by newspaper, radio, television, public service announcements or other effective means and shall also cause the posting of appropriate warning notices in the areas and along the streets where trees are to be sprayed at least 24 hours in advance of spraying.  When any residue or concentrate from municipal spraying operations can be expected to be deposited on any public street, the forester shall also notify the chief of police, who shall take all necessary steps to make and enforce temporary parking and traffic regulations on such streets as conditions require.  Temporary “no parking” notices shall be posted in each block of any affected street at least 24 hours in advance of spraying operations.
  3. When appropriate warning notices and temporary “no parking” notices have been given and posted in accordance with subsection b. of this section, the city shall not allow any claim for damages to any vehicle caused by such spraying operations.
  4. When trees on private property are to be sprayed, the forester shall notify the owner of such property and proceed in accordance with the requirements of subsection 6. of Section 5 of this ordinance.

SECTION 7  Cost of Tree Care

The entire cost of abating any public nuisance or spraying any elm tree or part thereof when done at the direction of the forester shall be borned by the city out of general funds.

SECTION 8  Prohibited Acts and Penalties

Any person who does any of the following acts with the city of Lakota shall upon convistion thereof forfeit not less than $10 nor more than $100 together with the costs of prosecution and in default of payment thereof shall be imprisoned in the city jail until such costs and forfeiture are paid, but not exceeding 90 days:

  1. Transports any bark bearing elm wood, bark or material on public streets or highways or other public premises without first securing the written permission of the forester;
  2. Interferes with or prevents any acts of the forester or his agents or employees while they are engaged in the performance of duties imposed by this ordinance;
  3. Refuses to permit the forester or his duly authorized representative to enter upon his premises at reasonable times to exercise the duties imposed by this ordinance;
  4. Permits any public nuisance to remain on any premises owned or controlled by him when ordered by the forester to abate such nuisance.

SECTION 9  Separability

If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by reason of any decision of any court of competent jurisdiction, such decision shall not affect the validity of any other section, subsection, sentence, clause or phrase hereof.