Chapter 26

26.08 26.08 Leases and licenses.

26.08(1) (1) The department may, from time to time, lease parts or parcels of state park lands or state forest lands. These leases shall contain proper covenants to guard against trespass and waste. The rents arising from these leases shall be paid into the state treasury to the credit of the proper fund. Licenses also may be granted to prospect for ore or mineral upon any of these lands; but proper security shall be taken that the licensees will fully inform the department of every discovery of ore or mineral and will restore the surface to its former condition and value if no discovery of valuable deposits is made. The department shall retain a copy of each lease or license and file the original in the office of the board of commissioners of public lands.

26.08(2) (2) 

26.08(2)(a) (a) Except as provided under pars. (b) to (e), the department may lease state park land or state forest land for terms not exceeding 15 years.

26.08(2)(b) (b) The department may lease Rib Mountain state park lands and Willow River state park lands for terms not exceeding 30 years.

26.08(2)(bn) (bn) The department may lease state park land located within the boundaries of the Wisconsin Dells natural area for terms not exceeding 30 years.

26.08(2)(c) (c) The department may lease Kettle Moraine state forest land for the YMCA Camp Matawa for a term not exceeding 30 years.

26.08(2)(d) (d) The department may lease Northern Highland American Legion State Forest land on Statehouse Lake in the town of Manitowish Waters for the North Lakeland Discovery Center for a term not exceeding 30 years.

26.08(2)(e) (e) The department may lease state forest land located in the town of Boulder Junction to the Boulder Junction Shooting Range for terms not exceeding 30 years.

26.08(3) (3) The department shall furnish to the board of commissioners of public lands such maps, plats, surveys, valuations, information and other services as the board may request respecting any of the public lands, for use by it in granting leases or licenses or in making sales under s. 24.39.

26.08 History History: 1979 c. 34; 1987 a. 27; 1997 a. 27; 1999 a. 9; 2001 a. 16; 2013 a. 82.

26.09 26.09 Civil liability for unauthorized cutting, removal or transportation of raw forest products.

26.09(1b) (1b) Definitions. In this section:

26.09(1b)(a) (a) “Compass” means a sighting compass with a liquid-filled capsule that has been adjusted for the proper declination.

26.09(1b)(b) (b) “Fair market value” means the amount for which the raw forest products or land can be sold in an open market by a person willing and able but not compelled to sell and a purchaser willing and able but not obliged to buy.

26.09(1b)(c) (c) “Harvest” means to cut, remove or transport.

26.09(1b)(d) (d) “Harvesting” means cutting, removing or transporting.

26.09(1b)(e) (e) “Harvesting boundary” means the boundary of an area in which the harvesting of raw forest products is planned.

26.09(1b)(f) (f) “Owner” includes the board of commissioners of public lands if the board holds a land contract certificate under ch. 24 to the land from which the raw forest products were harvested.

26.09(1b)(g) (g) “Raw forest products” has the meaning given in s. 26.05 (1).

26.09(1b)(h) (h) “Recorded survey” means a land survey that is recorded with the register of deeds in each of the counties in which the harvesting took place.

26.09(1b)(i) (i) “Slash” has the meaning given in s. 26.12 (6) (a).

26.09(1b)(j) (j) “Stumpage value” means the applicable stumpage value established under s. 77.91 (1) or the fair market value of raw forest products less the cost of their harvesting, whichever is greater.

26.09(1b)(k) (k) “Subdivision” means a township, section, quarter-quarter section, government lot or fractional lot.

26.09(2) (2) Persons entitled to sue; exception.

26.09(2)(a) (a) In addition to any other enforcement action that may be taken and subject to par. (b), an owner of raw forest products that were harvested without the consent of the owner may bring a civil action against the person who harvested the raw forest products to recover the damages caused by the harvesting. In addition to any other enforcement action and subject to par. (b), a county in which a violation of s. 26.03 (1g) or (1r) or a rule promulgated under s. 26.03 (1g) or (1r) occurred may bring a civil action to recover damages for the violation.

26.09(2)(b) (b) An owner may not recover damages under this subsection if the person harvesting the raw forest products or the person giving consent for the harvesting reasonably relied on a written agreement among adjacent owners, or their agents, that the owner giving consent to harvest has the authority to do so even if after the harvesting it is determined that the owner giving the consent did not have such authority, but only if the harvesting is from land owned by an owner who is a party to the agreement.

26.09(3) (3) Damages.

26.09(3)(a) (a) A person against whom an action is brought as provided in sub. (2) is liable for the applicable damages under par. (b) or (c), subject to sub. (6), and other reasonable and necessary costs under par. (d).

26.09(3)(b) (b)

26.09(3)(b)1. 1. A court shall award damages that equal the stumpage value of the raw forest products harvested if the person harvesting the raw forest products or the person giving consent for the harvesting reasonably relied upon a recorded survey that was done by a person who is licensed under ch. 443 as a professional land surveyor even if the recorded survey is determined, after the harvesting, to be in error.

26.09(3)(b)2. 2. A court shall award damages that are equal to 2 times the stumpage value of the raw forest products harvested if a recorded survey was not relied upon as specified in subd. 1. but the person harvesting the raw forest products took reasonable precautions in identifying harvesting boundaries.

26.09(3)(b)3. 3. A court shall award damages that are equal to 4 times the stumpage value or 2 times the fair market value of the raw forest products harvested, whichever is greater, if a recorded survey was not relied upon as specified in subd. 1. and the person harvesting the raw forest products did not take reasonable precautions in identifying the harvesting boundaries.

26.09(3)(c) (c) In addition to the award under par. (b), a court shall award the owner of raw forest products that were harvested without the consent of the owner, any economic damages resulting from that harvest.

26.09(3)(d) (d) A court shall award other reasonable and necessary costs, which may include costs for any of the following:

26.09(3)(d)1. 1. Repair of damage to, or cleanup on, the land from which the raw forest products were harvested.

26.09(3)(d)2. 2. Removal of slash from agricultural land, waterways, highways, private roads, trails or other sites where the slash would interfere with reforesting or replanting.

26.09(3)(d)3. 3. Determining the fair market value, the stumpage value or the volume of the raw forest products that were harvested.

26.09(3)(d)4. 4. Determining the location of property boundaries necessary for determining whether a violation occurred.

26.09(3)(d)5. 5. Preparing forest management or reforestation plans.

26.09(3)(d)6. 6. Reforesting.

26.09(3)(d)7. 7. Replanting by direct seeding or by use of seedlings.

26.09(4) (4) Legal costs. Notwithstanding the limitations under s. 814.04, and in addition to the remedies available under s. 807.01, the court shall award the successful party in a civil action brought under sub. (2) court costs and reasonable attorney fees if the unsuccessful party, before the commencement of the action, unreasonably refused to pay a demand for damages or to accept an offer of payment for damages.

26.09(5) (5) Reasonable precautions.

26.09(5)(a) (a) For purposes of sub. (3) (b), a person takes reasonable precautions if the person does all of the following:

26.09(5)(a)1. 1. Identifies the harvesting boundaries as required under par. (b).

26.09(5)(a)2. 2. Reviews land ownership records and any other resources or documentation regarding the land. These records, resources and documentation include instruments of conveyance, certified survey maps, survey field notes and information on the land’s boundaries provided by the owners, or their agents, of any land that abuts a proposed harvesting boundary.

26.09(5)(b) (b) For purposes of par. (a), the harvesting boundaries may be identified by any of the following methods:

26.09(5)(b)1. 1. By use of a compass and measuring device or by use of a global position system if the identification is conducted by a person trained in the method used and if the identification is based on an established survey corner as specified in par. (c). If a global positioning system is used, it shall be accurate to plus or minus 2 meters.

26.09(5)(b)2. 2. By use of a method established by rule by the department.

26.09(5)(c) (c) A survey corner is an established survey corner for purposes of par. (b) if it is part of a U.S. government survey plat and it is used to determine one or more boundaries of a subdivision. The survey corner may be evidenced by a monument or other marking that was placed at the time that the survey was conducted or, if the monument or marker is no longer visible or in existence, the position of the survey corner may be reconstructed by doing one of the following:

26.09(5)(c)1. 1. Using a reference to a description contained in applicable surveying field notes or other supplemental surveying record.

26.09(5)(c)2. 2. Locating the survey corner by use of physical evidence or witness testimony.

26.09(6) (6) Damages; other. An owner may not receive both payment under s. 26.06 (3) and damages specified under sub. (3) (b) or (c) from the same person. An owner may not receive both payment under s. 26.05 (3) (c) and the damages specified in sub. (3) (d) 3.

26.09 History History: 1981 c. 67; 1999 a. 190; 2009 a. 365; 2013 a. 358.

26.09 Annotation Double damages under this section are not “punitive damages.” Hartland Cicero Mutual Insurance Co. v. Elmer, 122 Wis. 2d 481, 363 N.W.2d 252 (Ct. App. 1984).

26.09 Annotation The proper measure of damages is the market value of the logs reduced by the cost of cutting. Double damages are set by doubling that amount. Tydrich v. Bomkamp, 207 Wis. 2d 632, 558 N.W.2d 692 (Ct. App. 1996), 96-2086.

26.09 Annotation Changes to this section effective June 2, 2000 were not retroactive. The prior version of this section was not the exclusive remedy for timber trespass. Bill’s Distributing, Ltd v. Cormican, 2002 WI App 156, 256 Wis. 2d 142, 647 N.W.2d 908, 01-2567.

26.10 26.10 Reports by the department to the board of commissioners of public lands. The department shall report monthly to the board of commissioners of public lands all trespasses committed, all materials seized, all sales made and all moneys received under ss. 26.01 to 26.09.

26.105 26.105 Forestry and fire prevention study. The Great Lakes Timber Professionals Association and the Wisconsin County Forests Association shall prepare a report containing the results of the forestry and fire prevention study conducted as approved by the joint committee on finance under s. 26.105 (2), 2013 stats., and shall submit the report to the department, the council on forestry, and the appropriate standing committees of the legislature under s. 13.172 (3).

26.105 History History: 2013 a. 20; 2015 a. 55.

26.11 26.11 Forest fires; department jurisdiction; procedure.

26.11(1) (1) The department is vested with power, authority, and jurisdiction in all matters relating to the prevention, detection, and suppression of forest fires outside the limits of villages and cities in the state except as provided in s. 26.01 (2), and to do all things necessary in the exercise of such power, authority, and jurisdiction.

26.11(3) (3) The department shall direct and give suitable instructions to and obtain reports as directed from, the entire fire warden force of the state whether in officially established forest protection areas or elsewhere, and it may move about or concentrate the fire warden force as occasion demands.

26.11(4) (4) The department may enter into arrangements or agreements and cooperate with town boards, county boards or committees thereof, with individuals, concerns, corporations or associations, for the purpose of improving the protection against forest fires.

26.11(5) (5) The department may, upon request from the fire chief of a city or village, or the chief executive thereof, supply assistance within the limits of its resources in suppressing a forest fire within the confines of said municipality.

26.11(6) (6) The department, as the director of the effort, may suppress a forest fire on lands located outside the boundaries of intensive or extensive forest fire protection districts but not within the limits of any city or village if the town responsible for suppressing fires within its boundaries spends more than $3,000, as determined by rates established by the department, on suppressing the forest fire and if the town chairperson makes a request to the department for assistance. Persons participating in the suppression efforts shall act at the direction of the department after the department begins suppression efforts under this subsection. Funds expended by the state under this subsection shall be expended from the appropriation under s. 20.370 (2) (mv).

26.11(7) (7) 

26.11(7)(a) (a) Notwithstanding s. 20.001 (3) (c), if the sum of the unencumbered balances in the appropriation accounts under s. 20.370 (2) (cs) and (mz) exceeds $1,000,000 on June 30 of any fiscal year, the amount in excess of $1,000,000 shall lapse from the appropriation account under s. 20.370 (2) (cs) to the conservation fund, except as provided in par. (b).

26.11(7)(b) (b) Notwithstanding s. 20.001 (3) (c), if the amount in the appropriation account under s. 20.370 (2) (cs) is insufficient for the amount that must lapse under par. (a), the remainder that is necessary for the lapse shall lapse from the appropriation account under s. 20.370 (2) (mz).

26.11 History History: 1977 c. 224; 1983 a. 422; 1989 a. 56 s. 258; 1995 a. 27; 2001 a. 16, 103; 2003 a. 33; 2017 a. 59.

26.11 Annotation A stipulation of facts stating that there was a “large grass fire” did not necessarily mean there was a forest fire as defined in s. 26.11 (2) [now s. 26.01 (2)]. Town of Howard v. Soo Line Railroad Co. 63 Wis. 2d 500, 217 N.W.2d 329 (1974).

26.12 26.12 Forest protection areas, organization, emergency fire wardens, county cooperation, setting fire.

26.12(1) (1) Establishment of areas. Whenever it appears to the department from investigation, hearing or otherwise that areas in the state are in need of protection from forest fires, the department may by rule establish an intensive or an extensive forest protection area in the areas. The limits of each forest protection area shall be defined, and public notice of its establishment shall be published in the local press of the region affected as a class 1 notice, under ch. 985, and given any other publicity the department deems necessary.

26.12(2) (2) Organization. The department shall organize each forest protection area so as to most effectively prevent, detect and suppress forest fires, and to that end may employ experienced wardens or forest rangers to have charge of its efforts in each area; may subdivide each area into patrol areas; may establish lookout towers, construct ranger stations, telephone lines, purchase tools for fire fighting as well as other necessary supplies or equipment, and carry on all other activities considered necessary to effectively protect the area from forest fires, including the promulgation of rules for the payment of fire fighters, the preparation of notices and forms for publication and the disposition and use of all fire-fighting equipment or property. All property or equipment purchased by the state shall be owned by the state, but counties or towns may purchase and own equipment for fire suppression, and the equipment shall be used for the improvement of the forest fire-fighting organization.

26.12(3) (3) Emergency fire wardens. The department may deputize additional fire wardens who shall be called emergency fire wardens, and who shall serve during the fire season or for such temporary periods as may be determined upon by the department. Such appointments shall be made in cooperation with the county board in the county concerned or with a committee thereof. A list of such appointments shall be submitted by the department each year on or before February 15 to such county board or authorized committee thereof for approval by such board or committee. Should no written approval of such list of emergency fire wardens be received by the department before March 15 of the year in which submitted such list as submitted shall be deputized by the department as the official list for the year. Any vacancies occurring during the year shall be filled by the department as occasion demands. Chapter 230 shall not apply to appointments under this subsection and s. 26.13 (1).

26.12(4) (4) County cooperation. Each county included wholly or partially in a forest protection area may appoint a committee to cooperate with the department and to consider all matters relating to fire prevention, detection, and suppression in the county, including the payment of fire fighters, the purchase of fire fighting equipment, and all matters or details relating to or arising from the prevention, detection, and suppression of forest fires.

26.12(5) (5) Setting fire.

26.12(5)(a) (a) No person may set any fire except for warming the person or cooking food within the limits of any intensive forest protection area at any time of the year except when the ground is snow-covered, unless written permission has been received in advance from a duly appointed fire warden. The department shall prepare the necessary forms for this purpose, shall promulgate rules for the issuance of the permits, shall appoint, if necessary, in addition to the regular or emergency fire wardens, others who shall be authorized to issue the permits, and shall have jurisdiction over all other details concerned with or growing out of the closed season on the setting of fire.

26.12(5)(b) (b) No person may set any fire except for warming the person or cooking food within the limits of any extensive forest protection area at any time during January through May except when the ground is snow-covered and during any other time of the year when so ordered by the department unless written permission has been received in advance from a duly appointed fire warden. The department shall prepare the necessary blanks for this purpose, shall promulgate rules for the issuance of the permits, shall appoint, if necessary, in addition to the regular or emergency fire wardens, others who shall be authorized to issue the permits, and shall have jurisdiction over all other details concerned with or growing out of the closed season on the setting of fire.

26.12(6) (6) Slash disposal.

26.12(6)(a) (a) Definition. In this subsection and sub. (7), “slash” means any tree tops, limbs, bark, abandoned forest products, windfalls or other debris left on the land after timber or other forest products have been cut.

26.12(6)(b) (b) Illegal felling. All slash, which during the process of cutting timber or taking out other forest products, falls into or is deposited in any lake or stream or on the land of an adjoining owner, shall be immediately removed therefrom by the timber owner or cutting operator conducting the operations when in the opinion of the department such removal is in the public interest. If such slash is not removed within 30 days, the department may do the work and the landowner, timber owner or cutting operator responsible for such slash shall be liable to the state jointly, severally or individually for the cost of such work, including supervision and transportation of its personnel and any court costs which may arise.

26.12(7) (7) Slash disposal. All slash resulting from clearing or brushing on any public highway within the limits of any forest protection area shall be piled and burned or lopped and scattered. Whenever clearing or brushing work is done under contract the disposal of the resulting slash shall be made a part of the contract. All the slash shall be disposed of concurrently with the clearing or brushing operation or within a reasonable period to be determined by the department, but not to exceed one year. On failure to dispose of the slash the department may do the work and the municipality or contractor doing the clearing or brushing shall be liable to the state for the cost of the work.

26.12 History History: 1977 c. 196 s. 131; 1977 c. 224; 1983 a. 422; 1985 a. 332 s. 251 (6); 2001 a. 107; 2009 a. 177.

26.12 Cross-reference Cross-reference: See also ch. NR 30, Wis. adm. code.

26.13 26.13 Town fire wardens; duties, expenses.

26.13(1) (1) The chairperson of the town board of each town outside the limits of a forest protection area shall, by virtue of the office and the oath of the office, be town fire warden for the town. The fire warden shall assist and cooperate with the department in all matters relating to the prevention, detection and suppression of forest fires. If a town is unusually large or if special or peculiar conditions in connection with forest fires exist, the department may, upon recommendation of the town chairperson, annually appoint emergency fire wardens as necessary, whose duties and authority shall be the same as provided for emergency fire wardens serving in forest protection areas.

26.13(2) (2) All expenses arising from the prevention or suppression of forest fires by the town fire warden and by those called upon by the warden to assist in the work shall be borne by the town in which the expense was incurred. The town board may levy and assess a tax for defraying the expense. In addition the town board may levy a tax for the purchase of equipment for the suppression of forest fires. The taxes shall be collected in the same manner as other taxes, and when collected shall be paid into the town treasury from which the expense is paid.