Chapter 157

157.64(3) (3) Any person who intentionally commits an act specified under sub. (2) (a) to (f) with intent to defraud may be punished for theft under s. 943.20.

157.64 History History: 1989 a. 307; 1991 a. 269; 1993 a. 386; 2015 a. 237.

157.65 157.65 Enforcement.

157.65(1) (1) 

157.65(1)(a) (a) If the cemetery board has reason to believe that any person is violating or has violated this subchapter or any rule promulgated under this subchapter and that the continuation of that activity might cause injury to the public interest, the cemetery board may investigate.

157.65(1)(b) (b) If the cemetery board has reason to believe that any person is violating s. 157.12 or any rule promulgated under s. 157.12 and that the continuation of that activity might cause injury to the public interest, the cemetery board may investigate.

157.65(2) (2) The department of justice or any district attorney, upon informing the department of justice, may commence an action in circuit court in the name of the state to restrain by temporary or permanent injunction any violation of this subchapter. The court may, prior to entry of final judgment, make such orders or judgments as may be necessary to restore to any person any pecuniary loss suffered because of the acts or practices involved in the action, if proof of such loss is submitted to the satisfaction of the court. The department of justice may subpoena persons and require the production of books and other documents, and may request the cemetery board to exercise its authority under sub. (1) to aid in the investigation of alleged violations of this subchapter.

157.65(3) (3) In lieu of instituting or continuing an action under this section, the department of justice may accept a written assurance of discontinuance of any act or practice alleged to be a violation of this subchapter from the person who has engaged in the act or practice. An assurance entered into under this subsection shall not be considered evidence of a violation of this subchapter, but a violation of the assurance shall be treated as a violation of this subchapter.

157.65 History History: 1989 a. 307; 1995 a. 27 ss. 4405, 4406, 9116 (5); 2005 a. 25; 2011 a. 32; 2015 a. 237.

subch. III of ch. 157 SUBCHAPTER III

BURIAL SITES PRESERVATION

157.70 157.70 Burial sites preservation.

157.70(1) (1) Definitions. In this section:

157.70(1)(a) (a) “Board” means the burial sites preservation board.

157.70(1)(b) (b) “Burial site” means any place where human remains are buried.

157.70(1)(c) (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.

157.70(1)(cm) (cm) “Dedicated” has the meaning given in s. 157.061 (4).

157.70(1)(d) (d) “Director” means the director of the historical society or his or her formally appointed designee.

157.70(1)(e) (e) “Disturb” includes defacing, mutilating, injuring, exposing, removing, destroying, desecrating or molesting in any way.

157.70(1)(em) (em) “Division” means the division of hearings and appeals in the department of administration.

157.70(1)(f) (f) “Human remains” means any part of the body of a deceased person in any stage of decomposition.

157.70(1)(g) (g) “Interest” means an interest based on any of the following:

157.70(1)(g)1. 1. Direct kinship.

157.70(1)(g)2. 2. A cultural, tribal or religious affiliation.

157.70(1)(g)3. 3. A scientific, environmental or educational purpose.

157.70(1)(g)4. 4. Land use.

157.70(1)(g)5. 5. A commercial purpose not related to land use which is consistent with the purposes of this section.

157.70(1)(g)6. 6. Any other interest which the board deems to be in the public interest.

157.70(1)(gm) (gm) “Notify” means to communicate by letter or by electronic mail or other electronic means approved by the director.

157.70(1)(h) (h) “Owner” means a person who owns or leases land on which a burial site is located.

157.70(1)(hm) (hm) “Person” includes the state.

157.70(1)(i) (i) “Qualified archaeologist” means an individual who has a graduate degree in archaeology, anthropology or a closely related field and at least one year of full-time professional experience or equivalent specialized training in archaeological or physical anthropological research, administration or management, at least 4 months of supervised field and analytic experience in general North American archaeology or physical anthropology and a demonstrated ability to carry research to completion.

157.70(1m) (1m) Applicability. This section does not apply to the disturbance of cataloged land contiguous to a cataloged burial site if the cataloged burial site was recorded under sub. (2) (i) before August 9, 1989.

157.70(2) (2) Director’s duties. The director shall:

157.70(2)(a) (a) Identify burial sites in this state and, for burial sites that are not dedicated, sufficient contiguous land necessary to protect the burial site from disturbance. For any such burial site for which the director determines there is sufficient evidence under sub. (2c), the director shall notify every owner of the burial site and contiguous land so 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). 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 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.

157.70(2)(c) (c) Make recommendations concerning burial sites on private property for acquisition by the state or other public agencies to preserve the burial sites.

157.70(2)(d) (d) Provide for and publicize a telephone service which allows any person in this state to call, without charge, the director to report a discovery or disturbance of a burial site.

157.70(2)(e) (e) Establish a registry for any person whom the board determines to have an interest in a burial site or class of 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).

157.70(2)(g) (g) Assist Indian tribes, state agencies and other persons in any negotiation with any federal agency for the preservation of burial sites and human remains.

157.70(2)(h) (h) Mediate, upon application of any owner or person in the registry under par. (e), any dispute related to the disturbance or proposed disturbance of a burial site.

157.70(2)(i) (i) Cause a cataloged burial site to be recorded by the register of deeds of the county in which the burial site is located. The historical society shall reimburse the county for the cost of recording under this paragraph from the appropriation under s. 20.245 (1) (a).

157.70(2)(j) (j) Submit an annual report to the legislature under s. 13.172 (2) containing all of the following:

157.70(2)(j)1. 1. The director’s current recommendations under par. (c).

157.70(2)(j)2. 2. The number of burial sites recorded in the catalog at the time the report is prepared.

157.70(2)(j)3. 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.

157.70(2)(j)4. 4. A summary of applications received under sub. (5) since the previous report was issued, and information regarding the approval or denial of those applications by the director or the division.

157.70(2)(j)5. 5. A summary of appeals to the board under sub. (5) (c) 5. made since the previous report was issued.

157.70(2)(j)6. 6. A summary of any other activities of the board since the previous report was issued.

157.70(2)(j)7. 7. A summary of all violations of this section and all penalties imposed as a result of those violations.

157.70(2c) (2c) Relevant evidence for recording in the catalog.

157.70(2c)(a) (a) In this subsection:

157.70(2c)(a)1. 1. “Grave marker” means any surface indication of a burial, including monuments, spirit houses, wooden crosses, or Indian mounds.

157.70(2c)(a)2. 2. “Historical documentation” means information from any of the following types of independent sources:

157.70(2c)(a)2.a. a. Church records.

157.70(2c)(a)2.b. b. Deeds.

157.70(2c)(a)2.c. c. Maps.

157.70(2c)(a)2.d. d. Other written and oral sources.

157.70(2c)(b) (b) In determining whether to record burial sites in the catalog under sub. (2) (a), the director shall consider the following types of evidence from any person:

157.70(2c)(b)1. 1. Physical evidence, as demonstrated by archaeological or written historical reports showing the presence of human remains or grave markers.

157.70(2c)(b)2. 2. Historical documentation.

157.70(2c)(b)3. 3. Oral depositions or affidavits.

157.70(2c)(b)4. 4. Oral histories.

157.70(2g) (2g) Proceedings to contest recording in the catalog.

157.70(2g)(a) (a) If an owner wishes to contest a determination by the director under sub. (2) (a), the owner may, prior to the date stated in the notice under sub. (2) (a) that the director will record the burial site and land in the catalog, request a hearing before the board to review the director’s determination. If such a request is made, the board shall hold a hearing within 90 days after the date of the request. At the hearing, the director has the burden of proving, using the types of evidence described under sub. (2c) (b), that a burial site is present on the land. If a hearing is requested under this paragraph and the director has not yet physically inspected the land in question as permitted under sub. (2) (a), the director shall do so prior to the hearing. Following the hearing, the board shall issue a decision regarding whether to record the burial site or land in the catalog and, no later than 60 days after the hearing, shall send a copy of its decision to the director and the owner. A hearing held under this paragraph is not a contested case hearing under ch. 227.

157.70(2g)(b) (b) Within 30 days after the date of the board’s decision under par. (a), the owner shall have the right to a contested case hearing regarding whether the director should record the burial site or land in the catalog. A hearing under this paragraph shall be conducted by the division.

157.70(2g)(c) (c) From the time of the notice under sub. (2) (a) that the site or land will be recorded in the catalog unless the owner requests a hearing under par. (a) until all proceedings under this subsection are concluded, notwithstanding sub. (4), no person may conduct any soil disturbance activity on the site or land, except that the proposed activity may be conducted if the director determines that the proposed activity will not disturb the burial site.

157.70(2j) (2j) Removal from catalog.

157.70(2j)(a) (a) The director shall, on his or her own initiative or in response to a request from the owner or another interested person, 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:

157.70(2j)(a)1. 1. Naturally occurring changes to the landscape.

157.70(2j)(a)2. 2. Removal of human remains from the burial site under sub. (4) (c) 3. a. or (5) (c) 3.

157.70(2j)(a)3. 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 under sub. (2c), would have resulted in a determination not to record the burial site or land in the catalog.

157.70(2j)(b) (b)

157.70(2j)(b)1. 1. If the director proposes to remove land from the catalog under par. (a), the director shall notify the owner, interested persons listed on the registry under sub. (2) (e), county or local historical societies, the relevant municipality, and, if applicable, the person who submitted an application to have the site recorded in the catalog of the director’s proposal to remove the land from the catalog, and invite those persons to submit comments on the proposal. The director shall allow comments for a period of no less than 60 days.

157.70(2j)(b)2. 2. Following the expiration of the comment period under subd. 1., the director shall review any comments submitted, make any appropriate modifications in response to those comments, and issue a decision regarding removal of the land from the catalog. The director shall provide notice of his or her decision to the persons notified under subd. 1.

157.70(2j)(b)3. 3. Within 30 days after the date of the notice described in subd. 2., a person notified under subd. 1. may appeal the director’s decision to the board. The board shall review the director’s decision and issue a decision as to whether the land should be removed from the catalog.

157.70(2j)(b)4. 4. Within 30 days after the date of the board’s decision under subd. 3., a person notified under subd. 1. shall have the right to a contested case hearing regarding whether the land should be removed from the catalog. A hearing under this subdivision shall be conducted by the division.

157.70(2j)(b)5. 5. If no appeal of a decision to remove land from the catalog is filed within the period specified under subd. 3., if a decision to remove land from the catalog is upheld by the board following an appeal to the board under subd. 3. and no hearing is requested under subd. 4., or if a decision to remove land from the catalog is upheld by the division following a hearing requested under subd. 4., the director shall immediately do all of the following:

157.70(2j)(b)5.a. a. Remove the land from the catalog.

157.70(2j)(b)5.b. b. Submit a request to the register of deeds for the county in which the land is located to record a notice that the land has been removed from the catalog.

157.70(2m) (2m) Board duties. The board shall:

157.70(2m)(a) (a) Meet at least every 3 months.

157.70(2m)(b) (b) Determine which Indian tribes have an interest in any burial site or class of burial sites and notify the director for entry in the registry under sub. (2) (e).

157.70(2m)(c) (c) Determine which applicants for entry in the registry under sub. (2p) have an interest in a burial site or class of burial sites.

157.70(2m)(d) (d) As it deems necessary, review determinations of the director and the division under sub. (5).

157.70(2m)(e) (e) As it deems necessary, review disposition actions taken by the director under sub. (6).

157.70(2m)(f) (f) As it deems appropriate, approve transfers of burial sites under sub. (6m) (b) 2.

157.70(2m)(g) (g) Hold hearings and issue decisions under sub. (2g) (a).

157.70(2m)(h) (h) Review decisions of the director and issue decisions regarding removal of land from the catalog under sub. (2j) (b) 3.

157.70(2p) (2p) Application for registry. Any person may apply to the board for entry in the registry and shall indicate in which burial site she or he is claiming an interest.