Chapter 157

157.70(4)(c) (c)

157.70(4)(c)1. 1. Using information available concerning the burial site and the proposed activity, the director shall determine whether the proposed activity will disturb the burial site and whether the registry under sub. (2) (e) shows that any person has an interest in the burial site.

157.70(4)(c)2. 2. If the director determines that the proposed activity will not disturb the burial site or will disturb a burial site in which no person is shown on the registry under sub. (2) (e) to have an interest, he or she shall notify the owner of the owner’s right to cause or permit the activity.

157.70(4)(c)3. 3. If the director determines that the proposed activity will disturb a burial site in which any other person who is not the owner is shown on the registry under sub. (2) (e) to have an interest and that the interest is substantial, the director shall notify the owner that the owner may not cause or permit the activity unless the owner does one of the following:

157.70(4)(c)3.a. a. Subject to s. 157.111, authorizes the director or a qualified archaeologist approved by the director to excavate the burial site to remove and analyze any human remains and objects related to the burial in the burial site from the burial site within a reasonable time, beginning within 30 days of when ground conditions permit, for disposition under sub. (6).

157.70(4)(c)3.b. b. Changes the proposed activity so as not to disturb any burial site.

157.70(4)(cm) (cm) The director shall notify an owner under par. (c) 2. or 3., whichever is applicable, within 30 days after confirming receipt of a notification of a disturbance or possible disturbance under sub. (3) (a), except that if the director cannot make a determination under par. (c) 2. or 3. within that period, he or she shall notify the owner that additional time, which may not exceed 30 days, is necessary to make the determination, and include in that notification the reasons he or she needs additional time to make the determination.

157.70(4)(d) (d) If the director determines that an owner has satisfied the requirements under par. (c) 3., he or she shall, within 30 days after making that determination, notify the owner of the owner’s right to cause or permit any activity which is in keeping with the owner’s action under par. (c) 3.

157.70(4)(e) (e) If under par. (c) 3. a. all human remains and objects related to the burial in a burial site reported under sub. (3) (a) are not removed from the burial site, the director shall enter the burial site into the record prepared under sub. (2) (a).

157.70(4)(f) (f) The director shall submit a written report to the board of any determination which he or she makes under this subsection.

157.70(5) (5) Procedure for cataloged burial sites.

157.70(5)(a) (a) No person may intentionally cause or permit the disturbance of a cataloged burial site or the cataloged land contiguous to a cataloged burial site without a permit from the director issued under this subsection.

157.70(5)(b) (b)

157.70(5)(b)1. 1. Any person who intends to cause or permit any activity on a cataloged burial site or on cataloged land contiguous to a cataloged burial site which in any way might disturb the burial site or the land shall apply to the director for a permit to disturb the burial site or the land. The application shall include the purpose of the disturbance.

157.70(5)(b)2. 2. The director shall notify any person shown on the registry under sub. (2) (e) to have an interest in the burial site of the proposed disturbance. The notice to any person under this subdivision shall include information on the notified person’s right to a hearing on whether the director should grant a permit to disturb the burial site or the land.

157.70(5)(c) (c)

157.70(5)(c)1. 1. Upon request of the applicant or any person notified under par. (b), or if the director determines that a hearing is necessary, the director shall request the division to conduct a hearing on whether a permit should be issued to disturb the burial site or the land which is the subject of the request. If in any part of the hearing the location of a burial site is the subject of the testimony, such part of the hearing shall be conducted in a session closed to the public and the record of such part of the hearing shall be exempt from disclosure under s. 19.35 (1).

157.70(5)(c)1m. 1m. If a hearing is not requested or determined to be necessary under subd. 1., the director shall determine whether a permit should be issued to disturb the burial site or the land which is the subject of the application under par. (b) 1. If the director determines that the benefits to the permit applicant in disturbing the burial site or the land outweigh the benefits to all other persons shown on the registry under sub. (2) (e) to have an interest in not disturbing the burial site or the land, the director shall grant a permit to disturb the burial site or the land. In making the determination, the director shall consider the interest of the public in addition to any other interests. If the director determines that any of the following classes of interest are represented, the director shall weight the interests in the following order of priority:

157.70(5)(c)1m.a. a. Direct kinship.

157.70(5)(c)1m.b. b. A cultural, tribal or religious affiliation.

157.70(5)(c)1m.c. c. A scientific, environmental or educational purpose.

157.70(5)(c)1m.cm. cm. Historical and aesthetic significance of the burial site.

157.70(5)(c)1m.d. d. Land use.

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

157.70(5)(c)1m.f. f. Any other interest which the director deems to be in the public interest.

157.70(5)(c)2. 2. If a hearing is requested or determined to be necessary under subd. 1., the division shall conduct a hearing to determine whether the benefits to the permit applicant in disturbing the burial site or the land outweigh the benefits to all other persons shown on the registry under sub. (2) (e) to have an interest in not disturbing the burial site or the land. If the division finds in favor of the applicant, the division shall issue a determination in favor of granting a permit to disturb a burial site or the land which is the subject of the hearing under this paragraph. In making the determination, the division shall consider the interest of the public in addition to the interests of the parties. If any of the following classes of interest are represented in the hearing, the division shall weight the interests in the following order of priority:

157.70(5)(c)2.a. a. Direct kinship.

157.70(5)(c)2.b. b. A cultural, tribal or religious affiliation.

157.70(5)(c)2.c. c. A scientific, environmental or educational purpose.

157.70(5)(c)2.cm. cm. Historical and aesthetic significance of the burial site.

157.70(5)(c)2.d. d. Land use.

157.70(5)(c)2.e. e. A commercial purpose not related to land use which is consistent with the purposes of this section.

157.70(5)(c)2.f. f. Any other interest which the board deems to be in the public interest.

157.70(5)(c)2m. 2m. If the division makes a determination for granting a permit to disturb a burial site that is the subject of the hearing under this paragraph, the division may, except as provided in subd. 2o., determine the person to whom the human remains and objects related to the burial in the burial site should be transferred for analysis and reinterment or other appropriate disposition when the burial site is disturbed. In making such a determination, the division shall follow the order of priority prescribed in sub. (6) (a).

157.70(5)(c)2o. 2o. If human remains and objects related to the burial in the burial site are determined by a qualified archaeologist approved by the director to be of tribal descent, the division shall request that the Wisconsin Inter-Tribal Repatriations Committee or its designee determine the appropriate disposition of the remains or objects. If the Wisconsin Inter-Tribal Repatriations Committee or its designee declines the director’s request, the division shall determine the person to whom the remains and objects should be transferred as otherwise provided in subd. 2m. The Wisconsin Inter-Tribal Repatriations Committee or its designee shall submit to the director a written report of any disposition action taken under this subdivision.

157.70(5)(c)3. 3. If the determination under subd. 1m. or 2. is for granting a permit to disturb a burial site, the director shall grant the permit if the owner authorizes the director or a qualified archaeologist approved by the director to excavate the burial site to remove, within a reasonable time, beginning within 30 days of when ground conditions permit, for disposition under sub. (6), any human remains and objects related to the burial in the burial site to be disturbed under the permit.

157.70(5)(c)4. 4. A permit issued under this subsection shall be subject to s. 157.111 and may be subject to any other condition or exemption deemed necessary to limit the disturbance of a burial site or the land or to minimize any other burden on any person affected by granting the permit.

157.70(5)(c)5. 5. Any determination made by the director or the division under subd. 1m. or 2. may be appealed to the board.

157.70(5)(d) (d)

157.70(5)(d)1. 1. The director may charge a fee to recover the cost of excavation of a cataloged burial site under par. (c) 3. on the basis of the historical society’s assessment of the costs associated with excavation of the cataloged site.

157.70(5)(d)2. 2. The director may charge a fee to recover costs incurred by the historical society to analyze and reinter or otherwise dispose of human remains and other material under par. (c) 2m.

157.70(6) (6) Disposition of human remains removed from burial sites.

157.70(6)(a) (a) Except as provided in par. (bm), if human remains and objects related to the burial in the site are removed from a burial site under sub. (4) (c) 3. a. or (5) (c) 3. and the division has not determined under sub. (5) (c) 2m. the person to whom such remains and objects should be transferred for analysis and reinterment or other appropriate disposition, the director shall notify any person in the registry under sub. (2) (e) with an interest in the analysis and reinterment or appropriate disposition of such human remains and objects. The director shall transfer the remains and objects to such person for appropriate reinterment or other appropriate disposition upon receipt of a written application by any person with an interest in the analysis and reinterment or other appropriate disposition based on the following, in the order of priority stated, when persons in prior classes are not available at the time of application and in the absence of actual notice of opposition by a member of the same or a prior class:

157.70(6)(a)1. 1. Direct kinship.

157.70(6)(a)2. 2. A cultural, tribal or religious affiliation.

157.70(6)(a)3. 3. A scientific, environmental or educational purpose.

157.70(6)(a)4. 4. Any other interest which the board deems to be in the public interest.

157.70(6)(b) (b) If the director cannot identify any person with an interest in reinterring the human remains and objects received under par. (a), the director shall provide for reinterment or other disposition of the human remains and objects in an appropriate manner.

157.70(6)(bm) (bm) If human remains and objects related to the burial are removed from a burial site under sub. (4) (c) 3. a. or (5) (c) 3., the remains or objects are determined by a qualified archaeologist approved by the director to be of tribal descent, and the division has not determined under sub. (5) (c) 2m. the person to whom such remains and objects should be transferred for reinterment or other appropriate disposition, the director shall request that the Wisconsin Inter-Tribal Repatriations Committee or its designee determine the appropriate disposition of any tribal human remains or objects related to the burial. The director shall transfer the remains and objects for appropriate reinterment or other appropriate disposition as directed by the Wisconsin Inter-Tribal Repatriations Committee or its designee, unless the Wisconsin Inter-Tribal Repatriations Committee or its designee declines the director’s request, in which case the director shall proceed with disposition of the remains and objects as otherwise provided in par. (a). The Wisconsin Inter-Tribal Repatriations Committee or its designee shall submit to the director a written report of any disposition action taken under this paragraph.

157.70(6)(c) (c) The director shall record in the catalog prepared under sub. (2) (a) the site of any reinterment under par. (a), (b), or (bm).

157.70(6)(d) (d) The director shall submit to the board a written report of any disposition action taken under this subsection.

157.70(6)(e) (e) The board may review and modify any disposition action taken by the director under this subsection.

157.70(6m) (6m) Burial sites on public lands.

157.70(6m)(a) (a) In this subsection, “municipality” has the meaning given under s. 66.0621 (1) (a) and includes the state.

157.70(6m)(b) (b) Notwithstanding any other provision of this section, a municipality:

157.70(6m)(b)2. 2. May not transfer any burial site to any person who is not a municipality unless the transfer provides for preservation of the burial site from any disturbance by any person and unless the transfer is approved by the board.

157.70(6m)(b)3. 3. Shall endeavor to take positive action to preserve any burial site on land it owns through appropriate land use management including but not limited to appropriate multiuse purposes such as nature preserves.

157.70(7) (7) Action by attorney general. Upon request of the board, the attorney general or the district attorney of the proper county shall aid in any investigation, inspection, hearing or trial had under the provisions of this section and shall institute and prosecute all necessary actions or proceedings for the enforcement of such provisions and for the punishment of violations of the same. The attorney general or district attorney so requested shall report to or confer with the board regarding the request within 30 days after receipt of the request.

157.70(8) (8) Remedies. Any person who intentionally disturbs, without the authorization of the director under sub. (4) (c) 2. or (d), a burial site which is not cataloged or who intentionally disturbs, without a permit issued under sub. (5), a cataloged burial site or the cataloged land contiguous to a cataloged burial site is liable for attorney fees and damages or other appropriate relief to any person with an interest in preserving the burial site or in reinterring the human remains and objects related to the burial in the burial site. Any person with an interest in preserving a burial site or in reinterring the human remains in the burial site may bring an action for an injunction to prevent disturbance to the burial site or the cataloged land contiguous to a cataloged burial site or to obtain the human remains and objects related to the burial in the burial site for appropriate reinterment, in the order of priority specified in sub. (6) (a).

157.70(9) (9) Preservation of rights. The transfer of title to any property shall not change the rights and duties of any person under this section.

157.70(9m) (9m) Electronic submission of documents. The historical society and the board shall accept transmittal by any electronic means approved by the director of any application or other document required to be submitted under this subchapter.

157.70(10) (10) Penalties.

157.70(10)(a) (a) Any person who fails to report the disturbance of a burial site or the cataloged land contiguous to a cataloged burial site as required under sub. (3) shall forfeit not less than $100 nor more than $1,000.

157.70(10)(b) (b) Any person who intentionally disturbs a burial site which is not cataloged without the authorization of the director under sub. (4) (c) 2. or (d) shall forfeit not less than $500 nor more than $2,000 if the burial site is not dedicated or shall forfeit not less than $1,000 nor more than $10,000 if the burial site is dedicated.

157.70(10)(c) (c) Any owner who intentionally causes or permits any activity which disturbs a burial site after receiving notice from the director under sub. (4) (a) without the authorization required under sub. (4) (c) 2. or (d) shall forfeit not less than $1,000 nor more than $10,000.

157.70(10)(d) (d) Any person who intentionally causes or permits any activity which disturbs a cataloged burial site or the cataloged land contiguous to a cataloged burial site without a permit issued under sub. (5) shall forfeit not less than $1,000 nor more than $10,000.

157.70(10)(e) (e) Any person who disturbs a burial site for commercial gain not related to use of the land where a burial site is located or who disturbs a cataloged burial site for commercial gain related to use of the land where a burial site is located in violation of this section may be fined not to exceed 2 times the gross value gained or 2 times the gross loss caused by the disturbance, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred, or imprisoned for not more than one year in the county jail or both. In calculating the amount of the fine based on personal injury, any measurement of pain and suffering shall be excluded.

157.70 History History: 1985 a. 316; 1987 a. 27; 1989 a. 3, 31, 359; 1991 a. 39; 1993 a. 386; 1995 a. 357; 1999 a. 83; 1999 a. 150 s. 672; 2001 a. 16; 2017 a. 222; 2017 a. 365 s. 111.

157.70 Cross-reference Cross-reference: See also ch. HS 1, Wis. adm. code.

157.70 Note Note: 1985 Wis. Act 316, which created this section, contains extensive notes. Section 1 of 1985 Act 316 is entitled “Legislative findings and purpose.”