AB118: Bill Text

AB118,8,7 6. A summary of any other activities of the board since the previous report was issued.

AB118,8,9 7. A summary of all violations of this section and all penalties imposed as a result of those violations.

AB118,12 Section 12. 157.70 (2c) of the statutes is created to read:

AB118,8,12 157.70 (2c) Relevant evidence for recording in the catalog. (a) In this subsection:

AB118,8,14 1. “Grave marker" means any surface indication of a burial, including monuments, spirit houses, wooden crosses, or Indian mounds.

AB118,8,16 2. “Historical documentation" means information from any of the following types of independent sources:

AB118,8,17 a. Church records.

AB118,8,18 b. Deeds.

AB118,8,19 c. Maps.

AB118,8,20 d. Other written and oral sources.

AB118,8,22 (b) In determining whether to record burial sites in the catalog under sub. (2) (a), the director shall consider the following types of evidence from any person:

AB118,8,24 1. Physical evidence, as demonstrated by archaeological or written historical reports showing the presence of human remains or grave markers.

AB118,8,25 2. Historical documentation.

AB118,9,1 3. Oral depositions or affidavits.

AB118,9,2 4. Oral histories.

AB118,13 Section 13 . 157.70 (2g) of the statutes is created to read:

AB118,9,17 157.70 (2g) Proceedings to contest recording in the catalog. (a) If an owner wishes to contest a determination by the director under sub. (2) (a), the owner may, prior to the date stated in the notice under sub. (2) (a) that the director will record the burial site and land in the catalog, request a hearing before the board to review the director's determination. If such a request is made, the board shall hold a hearing within 90 days after the date of the request. At the hearing, the director has the burden of proving, using the types of evidence described under sub. (2c) (b), that a burial site is present on the land. If a hearing is requested under this paragraph and the director has not yet physically inspected the land in question as permitted under sub. (2) (a), the director shall do so prior to the hearing. Following the hearing, the board shall issue a decision regarding whether to record the burial site or land in the catalog and, no later than 60 days after the hearing, shall send a copy of its decision to the director and the owner. A hearing held under this paragraph is not a contested case hearing under ch. 227.

AB118,9,21 (b) Within 30 days after the date of the board's decision under par. (a), the owner shall have the right to a contested case hearing regarding whether the director should record the burial site or land in the catalog. A hearing under this paragraph shall be conducted by the division.

AB118,9,25 (c) From the time of the notice under sub. (2) (a) that the site or land will be recorded in the catalog unless the owner requests a hearing under par. (a) until all proceedings under this subsection are concluded, notwithstanding sub. (4), no person may conduct any soil disturbance activity on the site or land, except that the proposed activity may be conducted if the director determines that the proposed activity will not disturb the burial site.

AB118,14 Section 14 . 157.70 (2j) of the statutes is created to read:

AB118,10,7 157.70 (2j) Removal from catalog. (a) The director shall, on his or her own initiative or in response to a request from the owner or another interested person, 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:

AB118,10,8 1. Naturally occurring changes to the landscape.

AB118,10,10 2. Removal of human remains from the burial site under sub. (4) (c) 3. a. or (5) (c) 3.

AB118,10,14 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 under sub. (2c), would have resulted in a determination not to record the burial site or land in the catalog.

AB118,10,21 (b) 1. If the director proposes to remove land from the catalog under par. (a), the director shall notify the owner, interested persons listed on the registry under sub. (2) (e), county or local historical societies, the relevant municipality, and, if applicable, the person who submitted an application to have the site recorded in the catalog of the director's proposal to remove the land from the catalog, and invite those persons to submit comments on the proposal. The director shall allow comments for a period of no less than 60 days.

AB118,11,2 2. Following the expiration of the comment period under subd. 1., the director shall review any comments submitted, make any appropriate modifications in response to those comments, and issue a decision regarding removal of the land from the catalog. The director shall provide notice of his or her decision to the persons notified under subd. 1.

AB118,11,6 3. Within 30 days after the date of the notice described in subd. 2., a person notified under subd. 1. may appeal the director's decision to the board. The board shall review the director's decision and issue a decision as to whether the land should be removed from the catalog.

AB118,11,10 4. Within 30 days after the date of the board's decision under subd. 3., a person notified under subd. 1. shall have the right to a contested case hearing regarding whether the land should be removed from the catalog. A hearing under this subdivision shall be conducted by the division.

AB118,11,16 5. If no appeal of a decision to remove land from the catalog is filed within the period specified under subd. 3., if a decision to remove land from the catalog is upheld by the board following an appeal to the board under subd. 3. and no hearing is requested under subd. 4., or if a decision to remove land from the catalog is upheld by the division following a hearing requested under subd. 4., the director shall immediately do all of the following:

AB118,11,17 a. Remove the land from the catalog.

AB118,11,19 b. Submit a request to the register of deeds for the county in which the land is located to record a notice that the land has been removed from the catalog.

AB118,15 Section 15. 157.70 (2m) (b) of the statutes is amended to read:

AB118,11,23 157.70 (2m) (b) Determine which Indian tribes in this state have an interest in any cataloged burial site or class of cataloged burial sites and notify the director for entry in the registry under sub. (2) (e).

AB118,16 Section 16. 157.70 (2m) (c) of the statutes is amended to read:

AB118,12,2 157.70 (2m) (c) Determine which applicants for entry in the registry under sub. (2p) have an interest in a cataloged burial site or class of cataloged burial sites.

AB118,17 Section 17. 157.70 (2m) (d) of the statutes is amended to read:

AB118,12,6 157.70 (2m) (d) As it deems necessary, review determinations of the director and the division of hearings and appeals in the department of administration under sub. (5).

AB118,18 Section 18. 157.70 (2m) (g) and (h) of the statutes are created to read:

AB118,12,8 157.70 (2m) (g) Hold hearings and issue decisions under sub. (2g) (a).

AB118,12,10 (h) Review decisions of the director and issue decisions regarding removal of land from the catalog under sub. (2j) (b) 3.

AB118,19 Section 19. 157.70 (3) (b) of the statutes is amended to read:

AB118,12,14 157.70 (3) (b) Upon receipt of any notice under par. (a), the director shall determine if the burial site which is the subject of the notice has been cataloged under sub. (2) (a).

AB118,20 Section 20. 157.70 (4) (a) of the statutes is amended to read:

AB118,12,23 157.70 (4) (a) If the director determines that a burial site reported under sub. (3) (a) is not cataloged under sub. (2) (a), he or she shall immediately provide the person who made the report under sub. (3) (a) with confirmation that the report has been received and shall also immediately notify the owner of the burial site of the procedure under this subsection and of the liabilities and penalties which apply for failure to comply with the procedure. If the director deems it appropriate, he or she may give notice to notify the board, and to any person who has or may have an interest in the burial site, that a burial site has been reported under sub. (3).

AB118,21 Section 21. 157.70 (4) (cm) of the statutes is created to read:

AB118,13,7 157.70 (4) (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.

AB118,22 Section 22. 157.70 (4) (d) of the statutes is amended to read:

AB118,13,12 157.70 (4) (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.

AB118,23 Section 23. 157.70 (5) (b) (intro.) and 1. of the statutes are consolidated, renumbered 157.70 (5) (b) 1. and amended to read:

AB118,13,21 157.70 (5) (b) 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: 1. Apply apply to the director for a permit to disturb the burial site or the land. The application shall include the purpose of the disturbance and the names and addresses of any persons notified under subd. 2. The director shall send the applicant the names of any person in the registry with an interest in the burial site.

AB118,24 Section 24. 157.70 (5) (b) 2. of the statutes is amended to read:

AB118,14,3 157.70 (5) (b) 2. On a form provided by the The director, shall notify any person whose name the director has sent under subd. 1. 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.

AB118,25 Section 25. 157.70 (5) (c) 1. of the statutes is amended to read:

AB118,14,12 157.70 (5) (c) 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 of hearings and appeals in the department of administration 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).

AB118,26 Section 26. 157.70 (5) (c) 2. (intro.) of the statutes is amended to read:

AB118,14,25 157.70 (5) (c) 2. (intro.) If a hearing is requested or determined to be necessary under subd. 1., the division of hearings and appeals in the department of administration 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:

AB118,27 Section 27. 157.70 (5) (c) 2m. of the statutes is amended to read:

AB118,15,8 157.70 (5) (c) 2m. If the division makes a determination for granting a permit to disturb a burial site which 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).

AB118,28 Section 28. 157.70 (5) (c) 2o. of the statutes is created to read:

AB118,15,19 157.70 (5) (c) 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.

AB118,29 Section 29. 157.70 (5) (c) 3. of the statutes is amended to read:

AB118,16,2 157.70 (5) (c) 3. If the determination under subd. 1m. or 2. is for granting a permit to disturb a burial site which is the subject of the hearing under this paragraph, 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.

AB118,30 Section 30. 157.70 (5) (c) 5. of the statutes is amended to read:

AB118,16,6 157.70 (5) (c) 5. Any party in a hearing under this paragraph may appeal the determination made by the director or the division under subd. 1m. or 2. may be appealed to the board.

AB118,31 Section 31. 157.70 (6) (a) (intro.) of the statutes is amended to read:

AB118,16,20 157.70 (6) (a) (intro.) If 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:

AB118,32 Section 32 . 157.70 (6) (bm) of the statutes is created to read:

AB118,17,11 157.70 (6) (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.

AB118,33 Section 33. 157.70 (6) (c) of the statutes is amended to read:

AB118,17,14 157.70 (6) (c) The director shall enter into record in the catalog prepared under sub. (2) (a) the site of any reinterment under par. (a) or, (b), or (bm).

AB118,34 Section 34. 157.70 (9m) of the statutes is created to read:

AB118,17,18 157.70 (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.

AB118,35 Section 35. 709.03 (form) C. 21m. of the statutes is created to read:

AB118,18,11 709.03 (form) - See PDF for table

AB118,36 Section 36 . Nonstatutory provisions.

AB118,18,17 (1) Notwithstanding section 709.035 of the statutes, the treatment of section 709.03 (form) C. 21m. of the statutes does not require a property owner who has furnished to a prospective buyer of the property an original or amended report before the effective date of this subsection to submit an amended report with respect to the information required by section 709.03 (form) C. 21m. of the statutes.

AB118,18,23 (2) The director of the historical society or his or her formally appointed designee shall submit the initial report required under section 157.70 (2) (j) of the statutes no later than the first day of the 7th month beginning after the effective date of this subsection. With respect to the information under section 157.70 (2) (j) 3. to 6. of the statutes, the director shall include in the initial report information covering the one-year period prior to the date the report is issued.

AB118,37 Section 37 . Initial applicability.

AB118,18,26 (1) The treatment of section 709.03 (form) C. 21m. of the statutes first applies to reports furnished on the effective date of this subsection.

AB118,18,30 (2) The treatment of section 157.70 (2) (a) of the statutes (with respect to the definition of “sufficient contiguous land”) first applies to a burial site that is cataloged under section 157.70 (2) (a) of the statutes on the effective date of this subsection.

AB118,38 Section 38. Effective dates. This act takes effect on the first day of the 4th month beginning after publication, except as follows:

AB118,19,4 (1) The treatment of section 709.03 (form) C. 21m. of the statutes and Sections 36 (1 ) and 37 (1) of this act take effect on July 1, 2018.

AB118,19,5 (End)