Chapter 26

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).

26.145 26.145 Fire suppression aids.

26.145(1) (1) Grants. The department shall establish a program to award grants for up to 50 percent of the cost of acquiring fire resistant clothing for suppressing fires, of acquiring fire suppression supplies, equipment, and vehicles, of acquiring fire prevention materials, and of training fire fighters in forest fire suppression techniques.

26.145(2) (2) Eligibility.

26.145(2)(a) (a) Cities, villages, towns, counties and fire suppression organizations shall be eligible for grants under this section.

26.145(2)(b) (b) The department may not award a grant under this section unless the recipient of the grant enters into a written agreement with the department under which the recipient agrees to assist the department in the suppression of forest fires at the department’s request.

26.145(3) (3) Rules. The department shall promulgate rules establishing criteria and procedures for awarding grants under this section. For purposes of this section, the rules shall include a definition of “fire suppression organizations”.

26.145 History History: 1997 a. 27; 1999 a. 9; 2001 a. 16, 109.

26.145 Cross-reference Cross-reference: See also s. NR 47.90, Wis. adm. code.

26.15 26.15 Responsibility of wardens and citizens. Any fire warden who refuses to carry out this chapter, or any able-bodied citizen who refuses to render assistance as provided by this chapter, shall forfeit not more than $50.

26.15 History History: 1975 c. 365.

26.18 26.18 District attorneys to prosecute. Whenever an arrest has been made for any violation of this chapter, or whenever any information of such violation has been lodged with him or her, the district attorney of the county in which the act was committed may prosecute the offender.

26.18 History History: 1975 c. 365.

26.19 26.19 Destruction of forest protection equipment or notices.

26.19(1) (1) Any person who destroys, defaces, removes or molests any forest protection equipment or property shall be fined not more than $10,000 or imprisoned not more than 9 months or both.

26.19(2) (2) Any person who disfigures any forest fire sign, poster or warning notice shall forfeit not more than $100.

26.19 History History: 1975 c. 365; 1983 a. 422.

26.20 26.20 Fire protection devices.

26.20(2) (2) Spark arresters on locomotives. All road locomotives operated on any railroad shall be equipped with spark arresters that meet or exceed minimum performance and maintenance standards enumerated by the department. The superintendent of motive power or equivalent officer of each railway shall designate an employee of the railway at each railway division point and roundhouse who shall examine each locomotive and its spark arrester each time the locomotive leaves the railway division point or roundhouse and the designated employee and his or her employer shall each be held responsible for complying with this subsection.

26.20(3) (3) Locomotive inspector; powers. Any locomotive inspector designated by the department shall have the power to reject from service immediately any locomotive, donkey, traction, or portable engine which, in the opinion of the inspector, is deficient in adequate design, construction, or maintenance of the fire protective devices designated in sub. (2), and any such locomotive, donkey, traction, or portable engine so rejected from service shall not be returned to service until such defects have been remedied to the satisfaction of the locomotive inspector. In case of disagreement between the inspector and the owner of the locomotive, donkey, traction, or portable engine so rejected from service as to the efficiency or proper maintenance of said protective devices, then the owner of the locomotive, donkey, traction, or portable engine may appeal to the office of the commissioner of railroads for a decision of said matter, but pending such decision the locomotive, donkey, traction, or portable engine shall not be returned to service.

26.20(4) (4) Clearing right-of-way.

26.20(4)(a) (a) Every corporation maintaining and operating a railway shall, at least once in each year, and within 10 days when requested by the department in writing, cut and burn or remove from its right-of-way all grass and weeds and burn or remove from its right-of-way all brush, logs, refuse material, and debris within a reasonable time, and whenever fires are set for such purpose, shall prevent the escape of the fire from the right-of-way. Upon failure of a railway corporation to comply with this paragraph, the department may do or contract for completion of the work and the corporation shall be liable to the state for all of the costs of the work.

26.20(4)(b) (b) The department may periodically require every corporation operating a railway to remove combustible materials from designated right-of-way or portions of a right-of-way, and lands adjacent to the right-of-way. This paragraph shall not relieve any railway corporation from responsibility or liability for causing any damage along any right-of-way nor from the corporation’s duty to comply with par. (a).

26.20(5) (5) Combustible deposits on track. No such corporation shall permit its employees to deposit fire, live coals, or ashes upon their tracks outside of the yard limits, except they be immediately extinguished.

26.20(6) (6) Reports and measures for prevention of fires.

26.20(6)(a) (a) Conductors or individuals in charge of a train who discover that their train is causing fires along or adjacent to the right-of-way shall immediately report the fires to the nearest railway division point or district office. It shall be the duty of the railway dispatcher or appropriate railway management authority to immediately notify the local department office plus the sheriff of the county where any fire is located. The conductor or other individuals in charge of a train shall attempt to discover the cause of any fire. If any part of the train, including the locomotive, is believed to have caused the fire, efforts shall be made to rectify the part before the train returns to service.

26.20(6)(b) (b) Any forest ranger, conservation warden, sheriff or other duly appointed authority may, in the performance of official duties, require any train causing fires or suspected of causing fires to stop within a safe distance from the fires to avoid further setting or spread of fire.

26.20(7) (7) Fire patrol. All corporations maintaining and operating a railway, during a dangerously dry season, and when so directed by the department, shall provide fire patrols for duty along their tracks. Whenever the department deems necessary it may order the corporations to provide for fire patrol personnel to follow each train throughout forest protection areas as may be necessary to prevent fires. When the department has given a corporation notice that in its opinion the conditions require a patrol after trains, the corporation shall immediately comply with the instructions throughout the areas designated. If the corporation fails to do so, the department may employ fire patrol personnel, and furnish them with the necessary equipment to patrol the rights-of-way of the corporations, and the expense of the patrols shall be charged to the corporation and may be recoverable in a civil action in the name of this state. In addition, the corporation is subject to the penalties under sub. (9). The corporation, acting independently of the department, shall patrol its rights-of-way after the passage of each train when necessary to prevent the spread of fires and use the highest degree of diligence to prevent the setting and spread of fires, and its officers and employees operating trains in this state shall use diligence in extinguishing fires set by locomotives or found existing upon their respective rights-of-way, and any negligence in this regard shall render the corporation or any officer or employee subject to the penalties under sub. (9). Every corporation affected by this section shall designate and register with the department an officer or some other person to be responsible for carrying out the corporation’s responsibilities with the highest degree of diligence. If the officer or person fails in the duty, he or she shall forfeit not more than $500.

26.20(8) (8) Inspection and entry. The department may inspect or cause to be inspected any locomotive, donkey, or threshing engine, railway locomotive, and all other engines, boilers, and locomotives operated in, through or near forest, brush, or grass land and enter upon any property for such purpose, or where it deems it necessary in order to see that this section is duly complied with.

26.20(9) (9) Penalty.

26.20(9)(a) (a) Any corporation, by its officers, agents, or employees, violating this section, shall forfeit not more than $500.

26.20(9)(b) (b) Any corporation, by its officers, agents or employees, willfully violating this section shall be fined not more than $1,000.

26.20(9)(c) (c) Any conductor, individual in charge of a train or officer, agent or employee of a railway who violates this section shall forfeit not more than $500.

26.20(10) (10) Appeal to office of the commissioner of railroads. In case the department and any person operating any locomotive, donkey, or threshing engine, or any engine, boiler, or locomotive cannot agree as to the most practicable device or devices for preventing the escape of sparks, cinders, or fire from smokestacks, ash pans or fire boxes, then the same shall be determined by the office of the commissioner of railroads.

26.20(11) (11) Exemption. The department may exempt from subs. (2), (3) and (4) any railroad, when, in its judgment, conditions along the right-of-way are such that the reduced fire hazard renders such protective devices unnecessary.

26.20 History History: 1975 c. 365; 1977 c. 29 ss. 448b to 448t, 1654 (9) (f); 1977 c. 224; 1981 c. 347 s. 80 (2); 1983 a. 422 ss. 10, 15; 1993 a. 16, 123, 490.

26.205 26.205 Tractors, spark arresters. Tractors operating in a forest protection area or on other land where there is danger of setting fire, shall be equipped so that the tractors will not set fire on the lands and to reduce to a minimum the danger of setting fire. The department or its locomotive inspector is authorized and directed to reject from service all tractors not properly equipped to prevent the setting of fires. The department shall, after investigation, prescribe suitable fire preventive devices for tractors operating in marsh land or on other land where there is danger of fire being set by their operation.

26.205 History History: 1977 c. 224.

26.21 26.21 Civil liability for forest fires.

26.21(1) (1) In addition to the penalties provided in s. 26.20, the United States, the state, the county or private owners, whose property is injured or destroyed by forest fires, may recover, in a civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence. In a civil action, a court may award reasonable costs for legal representation to provide owners recovering damages under this subsection.

26.21(2) (2) Persons causing fires in violation of this chapter shall be liable to the state in an action for debt, to the full amount of all damages done to the state lands and for all expenses incurred by the towns fighting forest fires and shall be liable to municipalities in an action for debt, to the full amount of all damages to the municipal lands and for all expenses incurred by the municipalities fighting such fires.

26.21 History History: 1977 c. 29.

26.21 Annotation This statute does not create liability in favor of a town. Town of Howard v. Soo Line Railroad Co. 63 Wis. 2d 500, 217 N.W.2d 329 (1974).

26.21 Annotation Sub. (1) is not limited to a specific class of tortfeasor, such as a railroad corporation, and a violation under s. 26.20 is not a prerequisite for applying sub. (1). The plain language of sub. (1) does not require “gross negligence.” Heritage Farms, Inc. v. Markel Insurance Company, 2009 WI 27, 316 Wis. 2d 47, 762 N.W.2d 652, 07-0983.

26.21 Annotation If it is determined that the owner’s property was injured or destroyed by a forest fire that occurred through willfulness, malice, or negligence, the property owner is entitled to double damages as a matter of course. The use of “may” in sub. (1) does not authorize the recovery of double damages within the court’s discretion. Rather, the use of “may recover” indicates that a property owner, whose property is injured or destroyed by a forest fire, “may” choose to bring a civil action against the tortfeasor to recover double damages. Heritage Farms, Inc. v. Markel Insurance Company, 2012 WI 26, 339 Wis. 2d 125, 810 N.W.2d 465, 10-0355.

26.22 26.22 Sales, etc. The department may sell any timber on land under the department’s jurisdiction which has been damaged by fire, snow, hail, ice, insects, disease, or wind, on such terms and in such manner as the department determines is in the best interest of the state.

26.22 History History: 2003 a. 242.

26.30 26.30 Forest insects and diseases; department jurisdiction; procedure.

26.30(1) (1) Purpose. It is the public policy of the state to control forest pests on or threatening forests of the state in order to protect the forest resources, promote good forest management, enhance the growth and maintenance of forests, promote stability of forest-using industries, aid in fire control by reducing the menace created by dying and dead trees, conserve forest cover on watersheds and protect wildlife, recreational values and other values of the forest.

26.30(2) (2) Powers. The department is vested with authority and jurisdiction in all matters relating to the prevention, detection and control of forest pests on the forest lands of the state, and to do all things necessary in the exercise of such authority and jurisdiction, except that this shall not be construed to grant any powers or authority to the department for the silvicultural control of forest pests on any land. This section shall apply only to the detection and control of forest pests on forest lands and does not affect the authority of the department of agriculture, trade and consumer protection under chs. 93 and 94. The action of the department under sub. (4) shall be coordinated with the department of agriculture, trade and consumer protection in accordance with s. 20.901. The secretaries of natural resources and agriculture, trade and consumer protection shall execute annually a memorandum of agreement to enable the coordination of pest control work of their departments.

26.30(3) (3) Definitions. As used in this section:

26.30(3)(a) (a) “Control” includes prevent, retard, suppress, eradicate or destroy.

26.30(3)(b) (b) “Control zone” means an area of land which, in the judgment of the department, constitutes a present or potential forest pest breeding ground of a nature to be harmful, detrimental and injurious to permanent forest growth in the district or zone upon which control measures are justified.

26.30(3)(c) (c) “Forest pest” means any insect or disease which is harmful, injurious or destructive to forests or timber.

26.30(3)(d) (d) “Forests” or “forest lands” mean any area on which trees exist, standing or down, alive or dead, actually or potentially valuable for forest products, watershed or wildlife protection or recreational uses in contrast to shade, horticulture or ornamental trees valuable for landscape, agricultural, aesthetic or similar purposes.

26.30(3)(e) (e) “Infestation” includes actual, potential, incipient or emergency infestation or infection by forest pests.

26.30(4) (4) Surveys, investigations and control. The department shall make surveys and investigations to determine the presence, condition and extent of infestations and it shall also carry on control measures when necessary. For such purposes the department or its wardens may enter public and private lands at reasonable times without incurring a liability to anyone.

26.30(5) (5) Cooperative agreements. To carry out the purposes of this section the department may enter into arrangements or agreements with the University of Wisconsin System, the department of agriculture, trade and consumer protection, other departments of this and other states, the U.S. department of agriculture and other federal agencies and with counties, towns, corporations and individuals.

26.30(6) (6) Responsibility of forest landowners. Every owner of forest lands or timber shall exercise every reasonable effort to control and destroy forest pests on forest lands or timber owned by or under the control of the owner. In case of the owner’s failure, neglect or inability to do so, the work may be performed as provided in this section.

26.30(6m) (6m) Gypsy moth suppression.

26.30(6m)(a) (a) If the department establishes a program for the suppression of gypsy moths, and that program includes the awarding and administering of federal cost-sharing funds to counties for aerial insecticide treatment, the department shall promulgate rules to implement the program. The rules shall specify that an area is not eligible for aerial insecticide treatment under the program unless the area is at least 20 compact and contiguous acres in size.

26.30(6m)(ag) (ag) The rules promulgated under par. (a) shall require that an eligible applicant for funding provide notification to landowners and tenants within the eligible proposed treatment blocks and within an area surrounding those blocks to be determined by the applicant. Notification under this paragraph shall include all of the following:

26.30(6m)(ag)1. 1. Publication of a class 1 notice under ch. 985 in a local newspaper at least 10 days before a deadline, as designated by the applicant for funding in the notice, for registering an objection by a landowner or tenant to treatment on the land under the landowner’s or tenant’s control.

26.30(6m)(ag)2. 2. Issuance of a press release at least 10 days before the deadline for objections under subd. 1. that announces the public meeting under subd. 3.

26.30(6m)(ag)3. 3. Holding of a public meeting by the applicant for funding at least 7 days before the deadline for objections under subd. 1.

26.30(6m)(ar) (ar) The published notice and press release under par. (ag) shall provide information on the location of proposed treatment blocks, the insecticide to be used, the approximate timing of treatment, the method for registering an objection to the treatment of property, and the name, address, and phone number of the applicant for funding or the applicant’s designee.

26.30(6m)(av) (av) The published notice under par. (ag) 1. and the press release under par. (ag) 2. shall state, and a statement shall be made at the public meeting under par. (ag) 3., that all of the following apply:

26.30(6m)(av)1. 1. If a landowner or tenant registers a timely objection to treatment on land under the landowner’s or tenant’s control, the applicant for funding may not treat that land.

26.30(6m)(av)2. 2. If a landowner or tenant does not register a timely objection to treatment on land under the landowner’s or tenant’s control, the applicant for funding may treat that land.

26.30(6m)(b) (b) Subsections (7) to (10) do not apply to a gypsy moth suppression program established under this subsection.

26.30(7) (7) Designation of infestation control zones.

26.30(7)(a) (a) Whenever the department finds that an area in the state is infested or threatened with infestation by forest pests, it shall determine whether proven measures of control are needed and are available at reasonable cost with respect to the value of the forest lands or timber to be protected and the area affected. Such control measures may be applied through cooperative agreements as provided in subs. (5) and (8) or the department may designate a proposed zone of infestation covering the area in which control measures are to be applied. When a proposed zone of infestation is designated and before the establishment thereof, the department shall hold a public hearing thereon. Notice of such hearing shall be published in one or more newspapers having a general circulation in the county covered in whole or in part by the proposed zone as a class 1 notice, under ch. 985. The notice shall contain a description of the lands included in the proposed zone of infestation and a time and place where owners of forest lands in the proposed zone may show cause orally or in writing why the zone should or should not be established. The department shall consider any statements received in determining whether the zone shall be established. If the department determines that a zone should be established it shall issue an order establishing the zone of infestation.

26.30(7)(b) (b) Upon the establishment of a zone of infestation by the department, notice thereof shall be published in one or more newspapers having a general circulation in the area affected by such zone as a class 1 notice, under ch. 985.

26.30(7)(c) (c) When the department finds that an emergency condition exists and that the delays necessitated by the procedure outlined in pars. (a) and (b) would result in an epidemic or infestation, it may by order establish a zone of infestation without public hearing, giving such notice as it deems feasible.

26.30(8) (8) Department to control infestation if owner fails to act. Upon the establishment of a zone of infestation, the department shall apply measures of control on public and private forest lands within the established zone if the owner fails, refuses, neglects or is unable to undertake adequate control measures. The department shall endeavor to enter into agreements with owners of forest lands concerning the control work on their lands and fixing a proportional basis on which the costs of such work will be shared between the state and such owner. Failure of the department to offer an agreement to or execute an agreement with any owner shall not relieve the owner of any liability under this section or impair the right of the department to enter on the lands of said owner to conduct control operations.

26.30(9) (9) Distribution and collection of costs.

26.30(9)(a) (a) At the completion of the control measures in any area, or at the end of the calendar year, the department shall prepare a certified statement of the expenses incurred in carrying out such measures including expenses of owners covered by agreements pursuant to sub. (8) but these charges shall not include salary or expenses of regular permanent or seasonal personnel of the department, or operating costs for such regular equipment as may be owned or purchased by the department for insect pest control work. The statement shall show the amount which the department determines to be the state’s share of the expenses, but this amount shall not be less than 50 percent of the balance of such expenses incurred on forest lands after federal funds allocated to a specific control project have been deducted. The share of the state may include any federal aid funds and the value of contributions made available by other cooperators. The balance of such costs shall constitute a charge on an acreage basis against the owners of lands in the area affected by the forest pests for which control measures were conducted. In fixing the rates at which charges shall be made against each owner, the department shall consider present values and the present and potential benefits to such owner and to the state as a whole from the application of control measures, the cost of applying such measures to the owner’s land, and other such factors as in the discretion of the department will enable it to determine an equitable distribution of the costs to all such owners. No charge shall be made against owners to the extent that they have individually or collectively contributed funds, supplies or services pursuant to agreement, and 160 acres or less of forest land owned by any person within any county shall be exempt from any control cost.

26.30(9)(b) (b) As soon as the expenses incurred by the state in forest pest control work have been paid by the secretary of administration, the department shall send to each landowner a bill covering an equitable share of such expenses as herein provided.

26.30(9)(b)1. 1. When such work has been performed on county lands, the department shall send to the proper county treasurer a bill for the county’s share of such expenses and a copy of the bill shall be filed with the department of administration. The county shall have until October 1 of each year to pay such bill. If payment is not made by October 1 of each year, the secretary of state, upon information certified to the secretary of state by 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 of such amount in any one year. Any unpaid levy under this section shall remain a charge against the county and the secretary of state shall include such unpaid sums in the state tax levy of the respective counties in subsequent years.

26.30(9)(b)2. 2. When such work has been performed on other public or private lands the department shall certify to such owner the claim of the state in writing and list the items of expense incurred in such pest control work. Such claims shall be paid within 60 days and, if not paid within such time, the state may begin an action thereon at any time within 2 years.

26.30(9)(b)3. 3. If any claim is not paid within 60 days, the state may file a mechanics’ lien within 6 months after the 60-day period expires against the land affected in accordance with ch. 779, and shall have the necessary remedies to enforce the lien.