2017 - 2018 LEGISLATURE
March 2, 2017 - Introduced by
Joint Legislative Council. Referred to Committee
on Environment and Forestry.
1An Act to repeal
157.70 (2) (b) and 157.70 (2) (f); to consolidate, renumber
157.70 (5) (b) (intro.) and 1.; to amend
15.705 (1) (b), 44.02 (23), 3
70.11 (13), 157.70 (1) (c), 157.70 (2) (a), 157.70 (2) (e), 157.70 (2m) (b), 157.70 4
(2m) (c), 157.70 (2m) (d), 157.70 (3) (b), 157.70 (4) (a), 157.70 (4) (d), 157.70 (5) 5
(b) 2., 157.70 (5) (c) 1., 157.70 (5) (c) 2. (intro.), 157.70 (5) (c) 2m., 157.70 (5) (c) 6
3., 157.70 (5) (c) 5., 157.70 (6) (a) (intro.) and 157.70 (6) (c); and to create
(1) (em), 157.70 (1) (gm), 157.70 (2) (j), 157.70 (2c), 157.70 (2g), 157.70 (2j), 8
157.70 (2m) (g) and (h), 157.70 (4) (cm), 157.70 (5) (c) 2o., 157.70 (6) (bm), 157.70 9
(9m) and 709.03 (form) C. 21m. of the statutes; relating to: disclosure of burial
10sites located on residential real estate and various changes relating to the
11preservation and disturbance of burial sites.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's Study Committee on the Preservation of Burial Sites. Key
provisions of the bill are summarized below.
Procedure and Evidence for Recording a Site in a Catalog
The bill specifies types of evidence that the director of the Wisconsin Historical
Society (WHS) must consider when determining whether to record a burial site in a
catalog and clarifies certain aspects of the WHS director's cataloging authority. Current
law directs the director to utilize a special inspection warrant procedure to identify burial
sites and record such sites in a catalog. Current law also directs the director to record sites
that are likely to be of archaeological interest or areas likely to contain burial sites in the
catalog. The statutes do not currently specify types of evidence that the director must
consider when determining whether to record a site in the catalog.
The bill removes the directive to record sites that are likely to be of archaeological
interest or areas likely to contain burial sites in a catalog. The bill amends the directive
regarding the cataloging of burial sites to clarify that the director may, but is not required
to, utilize a special inspection warrant when identifying and recording burial sites in a
catalog. The bill also requires the director to consider the following types of evidence from
any person when determining whether to record a site in the catalog: (1) physical
evidence, as demonstrated by archaeological or written historical reports showing the
presence of human remains or grave markers; (2) historical documentation; (3) oral
depositions or affidavits; and (4) oral histories.
Procedure for Contesting a Decision to Record a Site in the Catalog
The bill creates a new procedure that applies when a landowner wishes to contest
the WHS director's decision to record a site in the catalog. At least 30 days prior to the
date on which the director intends to record a site in the catalog, the director must notify
the landowner that the site will be recorded in the catalog unless the owner requests a
hearing before the Burial Sites Preservation Board. From the time of that notice and
until all proceedings concerning whether to record a site in the catalog are concluded, no
person may conduct any soil disturbance activity on the site or land, unless the director
determines that the proposed activity will not disturb the burial site. The bill does not
modify the general prohibition against disturbances to all burial sites under current law.
If the owner requests a hearing before the date on which the site is to be recorded
in the catalog, the board must hold a hearing within 90 days of the hearing request. At
the hearing, the director has the burden of proving that there is sufficient evidence to
catalog the site, using types of evidence specified under the bill. Following a hearing,
the board must issue a decision regarding whether sufficient evidence exists to record
the site in the catalog. The owner shall have the right to a contested case hearing on the
If a hearing to contest the decision to record the site in the catalog has been
requested, the bill requires the director to physically inspect the land prior to recording
a site in the catalog, if the director has not already done so.
Sufficient Contiguous Land Surrounding a Burial Site
The bill increases the minimum width of sufficient contiguous land that must be
included around a burial site that is recorded in the catalog. Under current law,
“sufficient contiguous land” means land that is at least five feet from any part of a burial
site. The bill defines “sufficient contiguous land” to mean at least 10 feet from any part
of a burial site, unless the director determines, based on the unique characteristics of the
land, that a shorter distance is sufficient to protect the burial site from disturbance.
Burial Sites Preservation Board Composition
The bill modifies the method for selecting members of Indian tribes or bands to serve
as members of the Burial Sites Preservation Board. Under current law, three members of
the board are selected from names submitted by the Great Lakes Inter-Tribal Council and
the Menominee Tribe. Under the bill, those three members of the board are selected from
names submitted by federally recognized Indian tribes or bands in this state.
Scope of the Registry of Interested Persons
The bill modifies the scope of the registry of persons interested in burial sites.
Under current law, the WHS director must maintain a registry of persons with an interest
in a cataloged burial site or class of cataloged burial sites. Under the bill, the registry
includes persons with an interest in any burial site.
Notice to Interested Persons of Application for Permit to Disturb
The bill requires the WHS director, rather than an applicant as under current law,
to notify any interested person shown on the registry of a proposed disturbance and
information regarding the person's right to a hearing.
The bill requires WHS and the Burial Sites Preservation Board to accept, by any
electronic means approved by the director, any application and other document required
under the burial sites preservation law.
Real Estate Disclosure
The bill requires that an owner of real property that includes one to four dwelling
units disclose to a prospective buyer whether the owner is aware of one or more burial
sites on the property. The bill adds this disclosure as a mandatory component of the
“Real Estate Condition Report” used in residential real estate transactions. The bill
directs the prospective buyer to contact WHS for further information regarding the
presence, preservation, and potential disturbance of burial sites. The bill provides an
effective date of July 1, 2018, for the changes relating to the real estate disclosure form
under s. 709.03, Stats.
Definition of Notify
For purposes of the burial sites preservation law, the bill defines “notify” to mean
“communicate by letter or by electronic mail or other electronic means approved by the
Annual Report Requirement
The bill creates a new annual report requirement. Under the bill, the WHS director
must submit an annual report to the Legislature that contains all of the following
information: (1) the director's current recommendations concerning burial sites on
private property for acquisition by the state or public agencies; (2) the number of burial
sites recorded in the catalog at the time the report is prepared; (3) a summary of
disturbance activities authorized under the uncataloged site disturbance procedure; (4)
a summary of applications received under the cataloged site disturbance procedure; (5)
a summary of appeals to the Burial Sites Preservation Board to contest a decision to
record a site in the catalog; (6) a summary of any other activities of the board; and (7) a
summary of all violations of the burial sites preservation law and all penalties imposed
as a result of those violations. The initial report must be submitted seven months after
the Act takes effect.
Procedure for Removal from the Catalog
The bill requires the WHS director, on the director's own initiative or in response
to a request from the owner or another interested person, to propose that land be removed
from the catalog, if the director determines that no burial site is present on the land
because of any of the following: (1) naturally occurring changes to the landscape; (2)
removal of human remains from the burial site pursuant to removal and disposition
procedures; or (3) newly discovered evidence that, if known at the time of the
determination to record in the catalog, and taking into account the types of evidence
required to be considered when determining whether to record a burial site or land in the
catalog, would have resulted in a determination not to record in the catalog the burial site
or land. If the director proposes to remove land from the catalog, the director must notify
the owner, interested persons, county or local historical societies, the relevant
municipality, and, if applicable, the person who submitted an application to have the site
recorded. The director must provide those persons with an opportunity to comment.
Following the comment period, the director must review any comments, make
appropriate modifications, issue a decision, and provide notice of the decision to the same
persons who received the notice of the proposal. Those persons may appeal the director's
decision within 30 days. Such appeals are heard by the Burial Sites Preservation Board.
Any person who was notified and given the opportunity to comment has the right to a
contested case hearing conducted by the Division of Hearings and Appeals regarding the
board's decision. In the event that no appeal is filed, or the board upholds the director's
decision and no contested case hearing is requested, or if a decision to remove land from
the catalog is upheld by the division following a contested case hearing, the bill requires
the director to remove the land from the catalog and submit a request to the relevant
register of deeds to record a notice that the land has been removed from the catalog.
Timeline for Certain Procedures Concerning Uncataloged Sites
The bill requires the WHS director to immediately provide confirmation to a person
who reports a disturbance or possible disturbance to a burial site that the director has
received the report. Within 30 days after providing that confirmation, the director must
notify an owner that the owner may or may not cause or permit a proposed activity. If
the director requires the owner to either modify the activity or excavate the burial site,
the director must notify the owner of the owner's right to cause or permit the activity
within 30 days of determining that the owner has satisfied one of those requirements.
Disposition of Remains Determined to be of Tribal Descent
The bill requires the WHS director, or the division under the procedure for
cataloged burial sites, to request that the Wisconsin Inter-Tribal Repatriations
Committee or its designee determine the appropriate disposition of any remains and
objects that are determined by a qualified archaeologist to be of tribal descent. Current
law generally requires the WHS director, or, in some cases, the division, to determine the
appropriate disposition of human remains and objects removed from a burial site.
15.705 (1) (b) of the statutes is amended to read:
(b) Three members who shall be members of federally recognized 3
Indian tribes or bands in this state, selected from names submitted by the Great
4Lakes inter-tribal council and the Menominee tribe those tribes or bands
. Each such 5
member shall be knowledgeable in the field of tribal preservation planning, history, 6
or a related field or shall be an elder, traditional person,
or spiritual 7
leader of his or her tribe.
44.02 (23) of the statutes is amended to read:
Identify any archaeological site, including contiguous land 3
necessary to protect the site, in this state that is listed in the national register of 4
historic places in Wisconsin or the state register of historic places and that is not 5
cataloged under s. 157.70 (2) (a)
. Any information collected under this subsection the 6
disclosure of which would be likely to result in the disturbance of an archaeological 7
site is not subject to s. 19.35 (1).
70.11 (13) of the statutes is amended to read:
70.11 (13) Cemeteries.
Land owned by cemetery authorities, as defined in s. 10
157.061 (2), and used exclusively as public burial grounds and tombs and 11
monuments therein, and privately owned burial lots; land adjoining such burial 12
grounds, owned and occupied exclusively by the cemetery authority for cemetery 13
purposes; personal property owned by any cemetery authority and necessary for the 14
care and management of burial grounds; burial sites and contiguous lands which are 15
cataloged under s. 157.70 (2) (a)
157.70 (1) (c) of the statutes is amended to read:
(c) “Cataloged" means recorded under sub. (2) (a), (4) (e) or (6) (c) or
18s. 157.70 (2) (a), 2015 stats., or s. 157.70 (2) (b), 2015 stats