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  Date of enactment: April 3, 2018
2017 Assembly Bill 118   Date of publication*: April 4, 2018
* Section 991.11, Wisconsin Statutes: Effective date of acts. “Every act and every portion of an act enacted by the legislature over the governor's partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication."
2017 WISCONSIN ACT 222
An Act to repeal 157.70 (2) (b) and 157.70 (2) (f); to consolidate, renumber and amend 157.70 (5) (b) (intro.) and 1.; to amend 15.705 (1) (b), 44.02 (23), 70.11 (13), 157.70 (1) (c), 157.70 (2) (a), 157.70 (2) (e), 157.70 (2m) (b), 157.70 (2m) (c), 157.70 (2m) (d), 157.70 (3) (b), 157.70 (4) (a), 157.70 (4) (d), 157.70 (5) (b) 2., 157.70 (5) (c) 1., 157.70 (5) (c) 2. (intro.), 157.70 (5) (c) 2m., 157.70 (5) (c) 3., 157.70 (5) (c) 5., 157.70 (6) (a) (intro.) and 157.70 (6) (c); and to create 157.70 (1) (em), 157.70 (1) (gm), 157.70 (2) (j), 157.70 (2c), 157.70 (2g), 157.70 (2j), 157.70 (2m) (g) and (h), 157.70 (4) (cm), 157.70 (5) (c) 2o., 157.70 (6) (bm), 157.70 (9m) and 709.03 (form) C. 21m. of the statutes; relating to: disclosure of burial sites located on residential real estate and various changes relating to the preservation and disturbance of burial sites.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council's Study Committee on the Preservation of Burial Sites. Key provisions of the bill are summarized below.
Procedure and Evidence for Recording a Site in a Catalog
The bill specifies types of evidence that the director of the Wisconsin Historical Society (WHS) must consider when determining whether to record a burial site in a catalog and clarifies certain aspects of the WHS director's cataloging authority. Current law directs the director to utilize a special inspection warrant procedure to identify burial sites and record such sites in a catalog. Current law also directs the director to record sites that are likely to be of archaeological interest or areas likely to contain burial sites in the catalog. The statutes do not currently specify types of evidence that the director must consider when determining whether to record a site in the catalog.
The bill removes the directive to record sites that are likely to be of archaeological interest or areas likely to contain burial sites in a catalog. The bill amends the directive regarding the cataloging of burial sites to clarify that the director may, but is not required to, utilize a special inspection warrant when identifying and recording burial sites in a catalog. The bill also requires the director to consider the following types of evidence from any person when determining whether to record a site in the catalog: (1) physical evidence, as demonstrated by archaeological or written historical reports showing the presence of human remains or grave markers; (2) historical documentation; (3) oral depositions or affidavits; and (4) oral histories.
Procedure for Contesting a Decision to Record a Site in the Catalog
The bill creates a new procedure that applies when a landowner wishes to contest the WHS director's decision to record a site in the catalog. At least 30 days prior to the date on which the director intends to record a site in the catalog, the director must notify the landowner that the site will be recorded in the catalog unless the owner requests a hearing before the Burial Sites Preservation Board. From the time of that notice and until all proceedings concerning whether to record a site in the catalog are concluded, no person may conduct any soil disturbance activity on the site or land, unless the director determines that the proposed activity will not disturb the burial site. The bill does not modify the general prohibition against disturbances to all burial sites under current law.
If the owner requests a hearing before the date on which the site is to be recorded in the catalog, the board must hold a hearing within 90 days of the hearing request. At the hearing, the director has the burden of proving that there is sufficient evidence to catalog the site, using types of evidence specified under the bill. Following a hearing, the board must issue a decision regarding whether sufficient evidence exists to record the site in the catalog. The owner shall have the right to a contested case hearing on the board's decision.
If a hearing to contest the decision to record the site in the catalog has been requested, the bill requires the director to physically inspect the land prior to recording a site in the catalog, if the director has not already done so.
Sufficient Contiguous Land Surrounding a Burial Site
The bill increases the minimum width of sufficient contiguous land that must be included around a burial site that is recorded in the catalog. Under current law, “sufficient contiguous land” means land that is at least five feet from any part of a burial site. The bill defines “sufficient contiguous land” to mean at least 10 feet from any part of a burial site, unless the director determines, based on the unique characteristics of the land, that a shorter distance is sufficient to protect the burial site from disturbance.
Burial Sites Preservation Board Composition
The bill modifies the method for selecting members of Indian tribes or bands to serve as members of the Burial Sites Preservation Board. Under current law, three members of the board are selected from names submitted by the Great Lakes Inter-Tribal Council and the Menominee Tribe. Under the bill, those three members of the board are selected from names submitted by federally recognized Indian tribes or bands in this state.
Scope of the Registry of Interested Persons
The bill modifies the scope of the registry of persons interested in burial sites. Under current law, the WHS director must maintain a registry of persons with an interest in a cataloged burial site or class of cataloged burial sites. Under the bill, the registry includes persons with an interest in any burial site.
Notice to Interested Persons of Application for Permit to Disturb
The bill requires the WHS director, rather than an applicant as under current law, to notify any interested person shown on the registry of a proposed disturbance and information regarding the person's right to a hearing.
Electronic Submission
The bill requires WHS and the Burial Sites Preservation Board to accept, by any electronic means approved by the director, any application and other document required under the burial sites preservation law.
Real Estate Disclosure
The bill requires that an owner of real property that includes one to four dwelling units disclose to a prospective buyer whether the owner is aware of one or more burial sites on the property. The bill adds this disclosure as a mandatory component of the “Real Estate Condition Report” used in residential real estate transactions. The bill directs the prospective buyer to contact WHS for further information regarding the presence, preservation, and potential disturbance of burial sites. The bill provides an effective date of July 1, 2018, for the changes relating to the real estate disclosure form under s. 709.03, Stats.
Definition of Notify
For purposes of the burial sites preservation law, the bill defines “notify” to mean “communicate by letter or by electronic mail or other electronic means approved by the director.”
Annual Report Requirement
The bill creates a new annual report requirement. Under the bill, the WHS director must submit an annual report to the Legislature that contains all of the following information: (1) the director's current recommendations concerning burial sites on private property for acquisition by the state or public agencies; (2) the number of burial sites recorded in the catalog at the time the report is prepared; (3) a summary of disturbance activities authorized under the uncataloged site disturbance procedure; (4) a summary of applications received under the cataloged site disturbance procedure; (5) a summary of appeals to the Burial Sites Preservation Board to contest a decision to record a site in the catalog; (6) a summary of any other activities of the board; and (7) a summary of all violations of the burial sites preservation law and all penalties imposed as a result of those violations. The initial report must be submitted seven months after the Act takes effect.
Procedure for Removal from the Catalog
The bill requires the WHS director, on the director's own initiative or in response to a request from the owner or another interested person, to propose that land be removed from the catalog, if the director determines that no burial site is present on the land because of any of the following: (1) naturally occurring changes to the landscape; (2) removal of human remains from the burial site pursuant to removal and disposition procedures; or (3) newly discovered evidence that, if known at the time of the determination to record in the catalog, and taking into account the types of evidence required to be considered when determining whether to record a burial site or land in the catalog, would have resulted in a determination not to record in the catalog the burial site or land. If the director proposes to remove land from the catalog, the director must notify the owner, interested persons, county or local historical societies, the relevant municipality, and, if applicable, the person who submitted an application to have the site recorded. The director must provide those persons with an opportunity to comment.
Following the comment period, the director must review any comments, make appropriate modifications, issue a decision, and provide notice of the decision to the same persons who received the notice of the proposal. Those persons may appeal the director's decision within 30 days. Such appeals are heard by the Burial Sites Preservation Board. Any person who was notified and given the opportunity to comment has the right to a contested case hearing conducted by the Division of Hearings and Appeals regarding the board's decision. In the event that no appeal is filed, or the board upholds the director's decision and no contested case hearing is requested, or if a decision to remove land from the catalog is upheld by the division following a contested case hearing, the bill requires the director to remove the land from the catalog and submit a request to the relevant register of deeds to record a notice that the land has been removed from the catalog.
Timeline for Certain Procedures Concerning Uncataloged Sites
The bill requires the WHS director to immediately provide confirmation to a person who reports a disturbance or possible disturbance to a burial site that the director has received the report. Within 30 days after providing that confirmation, the director must notify an owner that the owner may or may not cause or permit a proposed activity. If the director requires the owner to either modify the activity or excavate the burial site, the director must notify the owner of the owner's right to cause or permit the activity within 30 days of determining that the owner has satisfied one of those requirements.
Disposition of Remains Determined to be of Tribal Descent
The bill requires the WHS director, or the division under the procedure for cataloged burial sites, to request that the Wisconsin Inter-Tribal Repatriations Committee or its designee determine the appropriate disposition of any remains and objects that are determined by a qualified archaeologist to be of tribal descent. Current law generally requires the WHS director, or, in some cases, the division, to determine the appropriate disposition of human remains and objects removed from a burial site.
222,1 Section 1. 15.705 (1) (b) of the statutes is amended to read:
15.705 (1) (b) Three members who shall be members of federally recognized Indian tribes or bands in this state, selected from names submitted by the Great Lakes inter-tribal council and the Menominee tribe those tribes or bands. Each such member shall be knowledgeable in the field of tribal preservation planning, history, archaeology, or a related field or shall be an elder, traditional person, or spiritual leader of his or her tribe.
222,2 Section 2. 44.02 (23) of the statutes is amended to read:
44.02 (23) Identify any archaeological site, including contiguous land necessary to protect the site, in this state that is listed in the national register of historic places in Wisconsin or the state register of historic places and that is not cataloged under s. 157.70 (2) (a). Any information collected under this subsection the disclosure of which would be likely to result in the disturbance of an archaeological site is not subject to s. 19.35 (1).
222,3 Section 3. 70.11 (13) of the statutes is amended to read:
70.11 (13) Cemeteries. Land owned by cemetery authorities, as defined in s. 157.061 (2), and used exclusively as public burial grounds and tombs and monuments therein, and privately owned burial lots; land adjoining such burial grounds, owned and occupied exclusively by the cemetery authority for cemetery purposes; personal property owned by any cemetery authority and necessary for the care and management of burial grounds; burial sites and contiguous lands which are cataloged under s. 157.70 (2) (a).
222,4 Section 4. 157.70 (1) (c) of the statutes is amended to read:
157.70 (1) (c) “Cataloged" means recorded under sub. (2) (a), (4) (e) or (6) (c) or s. 157.70 (2) (a), 2015 stats., or s. 157.70 (2) (b), 2015 stats.
222,5 Section 5. 157.70 (1) (em) of the statutes is created to read:
157.70 (1) (em) “Division” means the division of hearings and appeals in the department of administration.
222,6 Section 6. 157.70 (1) (gm) of the statutes is created to read:
157.70 (1) (gm) “Notify” means to communicate by letter or by electronic mail or other electronic means approved by the director.
222,7 Section 7 . 157.70 (2) (a) of the statutes is amended to read:
157.70 (2) (a) Under a special inspection warrant as required under s. 66.0119, identify and record in a catalog Identify burial sites in this state and, for burial sites which that are not dedicated, sufficient contiguous land necessary to protect the burial site from disturbance, and . For any such burial site for which the director determines there is sufficient evidence under sub. (2c), the director shall notify in writing every owner of a the burial site or of such and contiguous land so recorded and identified that the site or land will be recorded in a catalog unless the owner requests a hearing under sub. (2g) (a). The director shall include in the notice the date by which the director intends to record the site or land in the catalog, which shall be no less than 30 days after the date of the notice. If the director's determination is not contested under sub. (2g) (a), the director shall record the site and land so identified in a catalog. If the director's determination is contested under sub. (2g) (a), the director shall record the site and land in the catalog only as subsequently permitted by a final decision of the board, the division, or a court. Whenever a burial site and land are recorded in the catalog under this paragraph, the director shall notify every owner and any county or local historical society in the county where the burial site or the land is located. Any information in the catalog related to the location of any burial site, the disclosure of which would be likely to result in the disturbance of the burial site or the cataloged land contiguous to the burial site, is not subject to s. 19.35 (1). The A notice of a recording in the catalog shall include information about the permit required under sub. (5) and the toll free number the owner may call for more information. The director may, in order to carry out his or her duties under this paragraph, obtain a special inspection warrant as provided in s. 66.0119 if entry to the site has been refused. In this paragraph, “sufficient contiguous land" means land that is within at least 5 10 feet from any part of a burial site, unless the director determines based on the unique characteristics of the land that a shorter distance is sufficient to protect the burial site from disturbance.
222,8 Section 8. 157.70 (2) (b) of the statutes is repealed.
222,9 Section 9. 157.70 (2) (e) of the statutes is amended to read:
157.70 (2) (e) Establish a registry for any person whom the board determines to have an interest in a cataloged burial site or class of cataloged burial sites under sub. (2m) (b) or (c). The registry shall include the name of every person whom the board determines to have an interest in the preservation of a burial site or in providing for the reinterment of the human remains and objects related to burial in the burial site if the burial site is disturbed and identify the burial site in which the person is determined to have an interest. Any information in the registry related to the location of any burial site, the disclosure of which would be likely to result in disturbance of the burial site, is not subject to disclosure under s. 19.35 (1).
222,10 Section 10. 157.70 (2) (f) of the statutes is repealed.
222,11 Section 11 . 157.70 (2) (j) of the statutes is created to read:
157.70 (2) (j) Submit an annual report to the legislature under s. 13.172 (2) containing all of the following:
1. The director's current recommendations under par. (c).
2. The number of burial sites recorded in the catalog at the time the report is prepared.
3. A summary of disturbance activities authorized under sub. (4), including a summary of information submitted to the board in written reports under sub. (4) (f), since the previous report was issued.
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