Chapter 26

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.

26.13(3) (3) Whenever the town board of any town located outside of a forest protection area deems it imprudent to set fires upon any land within the town, they shall post or cause to be posted in 5 or more public places in each township in the town, notices which shall be prepared by the department, or place one such notice in the official county paper, forbidding the setting of fires in the township, and after the posting of the notices no person may set any fire upon any land in the town except for warming the person or cooking food, until written permission has been received from one of the fire wardens of the town.

26.13 History History: 1977 c. 224; 1989 a. 56.

26.14 26.14 Forest fires, authority of fire fighters, compensation, penalties, civil liability.

26.14(1) (1) State forest rangers, town chairpersons, conservation wardens and other duly appointed deputies shall take prompt measures against the spread and illegal setting of forest fires. They may call upon any able-bodied citizen to assist in fighting fires in such manner as they direct.

26.14(2) (2) All such forest rangers, town chairpersons, emergency fire wardens, conservation wardens and other duly appointed deputies may in the performance of their official duty go on the lands of any person to fight forest fires, and in so doing may set back fires, dig trenches, cut fire lines or carry on all other customary activities in the fighting of forest fires, without incurring a liability to anyone.

26.14(3) (3) 

26.14(3)(a) (a) Emergency fire wardens, and all persons employed by them or by any other duly appointed fire warden for the purpose of suppressing forest fires, shall receive such hourly pay as the department may determine, for the time actually employed. Equipment operators and other specialists shall be paid the prevailing wage rate for comparable skills in each locality. The department may also allow the cost of meals, transportation, and disbursements for emergency equipment.

26.14(3)(b) (b) Of the expenses incurred under par. (a) the state shall pay one-half and the county where the service was performed shall pay one-half.

26.14(3)(c) (c) If the state receives any payment of damages under sub. (9) (b), the county’s share of expenses under par. (b) is reduced by the amount by which the damages received exceed the state’s share of expenses under par. (b). If, at the time the damages are paid, the county has already paid its share of expenses to the state, the state shall reimburse the county the amount by which the damages received exceed the state’s share of expenses.

26.14(4) (4) Emergency fire wardens or those assisting them in the fighting of forest fires shall prepare itemized accounts of their services and the services of those employed by them, as well as other expenses incurred, on blanks to be furnished by the department and in a manner prescribed by the department, and make oaths or affirmation that said account is just and correct, which account shall be forwarded and approved for payment by the department. As soon as any such account has been paid by the secretary of administration the department of natural resources shall send to the proper county treasurer a bill for the county’s share of such expenses. The county shall have 60 days within which to pay such bill, but if not paid within that time the county shall be liable for interest at the rate of 6 percent per year. If payment is not made within 60 days the department of administration shall include such amount as a part of the next levy against the county for state taxes, but no county shall be required to pay more than $5,000 in any one year. Any unpaid levy under this section shall remain a charge against the county and the department of administration shall include such unpaid sums in the state tax levy of the respective counties in subsequent years.

26.14(5) (5) Any person who sets a fire or assists in the setting of a fire, including a back fire, on any lands in this state and fails to totally extinguish such fire before leaving it shall forfeit not more than $100 for the first offense and shall be fined not more than $500 or imprisoned for not more than 30 days or both for each subsequent offense.

26.14(6) (6) Any person who sets a fire or assists in setting a fire, including a back fire, on any lands in this state and allows the fire to escape and become a forest fire shall be fined not more than $1,000 or imprisoned not more than 90 days or both.

26.14(7) (7) Any person who sets or assists in setting a fire upon marsh or other land in the state for the purpose of driving out game birds or animals shall be fined not more than $1,000 or imprisoned not more than 90 days or both. The possession of firearms upon any marsh while it is on fire shall be prima facie evidence of such violation.

26.14(8) (8) Any person who intentionally sets fire to the land of another or to a marsh is guilty of a Class H felony.

26.14(9) (9) 

26.14(9)(a) (a) Nothing in this chapter shall be construed as affecting the right to damages. The liability of persons for damages is not limited to the destruction of merchantable timber but may also include the value of young or immature forest growth.

26.14(9)(b) (b) Any person who sets a fire on any land and allows such fire to escape and become a forest fire shall be liable for all expenses incurred in the suppression of the fire by the state or town in which the fire occurred. For purposes of this paragraph, the state is considered to incur all expenses described under sub. (3). An action under this paragraph shall be commenced within the time provided by s. 893.91 or be barred.

26.14 History History: 1973 c. 336; 1975 c. 365; 1977 c. 449; 1979 c. 110 s. 60 (13); 1979 c. 323; 1983 a. 36, 422; 1989 a. 56, 79; 1995 a. 291; 1997 a. 283; 2001 a. 109; 2003 a. 33; 2017 a. 59.

26.14 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).

26.14 Annotation An intentional or negligent act, or an omission if there is a duty to act, is a necessary prerequisite for imposition of fire suppression costs under sub. (9) (b). DNR v. Wisconsin Power & Light Co. 108 Wis. 2d 403, 321 N.W.2d 286 (1982).