Who busts the illegal ditch mower?

It’s not legal to mow ditches along state highways in early summer, but that doesn’t mean people are getting in trouble for breaking the law.

The Department of Transportation rule requiring East River landowners to let the grass grow until July 10 is meant to offer cover for pheasant chicks, but it’s not always the most popular rule with farmers.

Farmers would prefer to cut the grass much earlier to make hay, and some of them do.

Thomas Andrews isn’t one of them, he said, and he called the Argus Leader this week to express his frustration as a farmer who abides by the rules. He saw ditches being mowed on Highway 11 south of Alcester this week.

“There’s some of us who abide by the law, and we lose a little hay here and there,” Andrews said. “There’s no accountability right now.”

Andrews called the DOT this week to ask who’s responsible for enforcing the rule. The answer is often sheriff’s offices, the DOT’s Darin Bergquist said, although any law enforcement agency can respond to calls about unauthorized mowing.

“We get reports on it happening and we refer those to the local sheriffs, but we haven’t gotten a lot of cooperation,” Bergquist said. “I’m not aware of anyone being charged for mowing.”

Lincoln County Sheriff Dennis Johnson isn’t aware of charges, but he’s not aware of a deluge of calls from the DOT about the issue, either.

“I can’t remember ever receiving (a complaint) from the DOT,” Johnson said.

Sheriff Mike Milstead also said it’s rare to get a report about mowing, but that deputies respond to every manner of call. Sometimes, however, a mowing complaint is handled with a warning or an explanation about the rules.

“We have no plan to haul a farmer to jail because they mowed a ditch too early,” Milstead said.

The state’s law enforcement officers have some responsibility, as well, said Major Rick Miller of the South Dakota Highway Patrol.

“If we see it, we address it,” Miller said, but “it’s not like we’re driving around looking for it.”

There’s more to the enforcement question than who does the job, though. A violation of a DOT administrative rule is a class 2 misdemeanor, Miller said, which means an officer can’t ticket a person unless they see the violation.

A ditch-mowing complaint is similar to a complaint about a reckless driver, he said - a trooper needs to see the reckless driving before he or she can write a ticket.

“It’s just like speeding: If you don’t do it in my presence, I can’t charge it out,” Miller said.

If someone admits to mowing a ditch, the officer, trooper or deputy could send the information to the State’s Attorney. At that point, it would be up to the prosecutor to decide if a charge is necessary.

And then there’s the issue of authorized mowing.

The rule is a compromise, Bergquist said, to balance the interest of two competing South Dakota interests: Farming and pheasant hunting. But safety is a factor, too.

“As part of that balance, there’s a third piece, and that’s safety,” Bergquist said.

DOT mowers don’t drive DOT vehicles when they cut for safety, though, so passersby might think there’s a violation going on.

“Sometimes we’re out there mowing, and Joe Public doesn’t know it’s the DOT,” he said.

When Sheriff Johnson heard about the possible issue on Highway 11 Thursday, he went out to take a look. He found some spots where authorized mowing took place and a few others he couldn’t verify authorization for.

“I found a couple spots on Highway 11 where it has been mowed and baled,” Johnson said. “We will look into that.”

John Hult is the Reader's Watchdog reporter for Argus Leader Media. Contact him with questions and concerns at 605-331-2301, 605-370-8617, twitter.com/ArgusJHult   or  Facebook.com/ArgusReadersWatchdog.