157.70(5)(c)1m.
1m. If a hearing is not requested or determined to be necessary under
subd. 1., the director shall determine whether a permit should be issued to disturb the burial site or the land which is the subject of the application under
par. (b) 1. If the director determines that 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, the director shall grant a permit to disturb the burial site or the land. In making the determination, the director shall consider the interest of the public in addition to any other interests. If the director determines that any of the following classes of interest are represented, the director shall weight the interests in the following order of priority:
157.70(5)(c)1m.e.
e. A commercial purpose not related to land use which is consistent with the purposes of this section.
157.70(5)(c)1m.f.
f. Any other interest which the director deems to be in the public interest.
157.70(5)(c)2.
2. 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:
157.70(5)(c)2.e.
e. A commercial purpose not related to land use which is consistent with the purposes of this section.
157.70(5)(c)2.f.
f. Any other interest which the board deems to be in the public interest.
157.70(5)(c)2m.
2m. If the division makes a determination for granting a permit to disturb a burial site which is the subject of the hearing under this paragraph, the division may 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).
157.70(5)(c)3.
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.
157.70(5)(c)4.
4. A permit issued under this subsection shall be subject to
s. 157.111 and may be subject to any other condition or exemption deemed necessary to limit the disturbance of a burial site or the land or to minimize any other burden on any person affected by granting the permit.
157.70(5)(c)5.
5. Any party in a hearing under this paragraph may appeal the determination under
subd. 1m. or
2. to the board.
157.70(5)(d)1.1. The director may charge a fee to recover the cost of excavation of a cataloged burial site under
par. (c) 3. on the basis of the historical society's assessment of the costs associated with excavation of the cataloged site.
157.70(5)(d)2.
2. The director may charge a fee to recover costs incurred by the historical society to analyze and reinter or otherwise dispose of human remains and other material under
par. (c) 2m.
157.70(6)
(6) Disposition of human remains removed from burial sites. 157.70(6)(a)(a) 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:
157.70(6)(a)4.
4. Any other interest which the board deems to be in the public interest.
157.70(6)(b)
(b) If the director cannot identify any person with an interest in reinterring the human remains and objects received under
par. (a), the director shall provide for reinterment or other disposition of the human remains and objects in an appropriate manner.
157.70(6)(c)
(c) The director shall enter into the catalog prepared under
sub. (2) (a) the site of any reinterment under
par. (a) or
(b).
157.70(6)(d)
(d) The director shall submit to the board a written report of any disposition action taken under this subsection.
157.70(6)(e)
(e) The board may review and modify any disposition action taken by the director under this subsection.
157.70(6m)(b)
(b) Notwithstanding any other provision of this section, a municipality:
157.70(6m)(b)2.
2. May not transfer any burial site to any person who is not a municipality unless the transfer provides for preservation of the burial site from any disturbance by any person and unless the transfer is approved by the board.
157.70(6m)(b)3.
3. Shall endeavor to take positive action to preserve any burial site on land it owns through appropriate land use management including but not limited to appropriate multiuse purposes such as nature preserves.
157.70(7)
(7) Action by attorney general. Upon request of the board, the attorney general or the district attorney of the proper county shall aid in any investigation, inspection, hearing or trial had under the provisions of this section and shall institute and prosecute all necessary actions or proceedings for the enforcement of such provisions and for the punishment of violations of the same. The attorney general or district attorney so requested shall report to or confer with the board regarding the request within 30 days after receipt of the request.
157.70(8)
(8) Remedies. Any person who intentionally disturbs, without the authorization of the director under
sub. (4) (c) 2. or
(d), a burial site which is not cataloged or who intentionally disturbs, without a permit issued under
sub. (5), a cataloged burial site or the cataloged land contiguous to a cataloged burial site is liable for attorney fees and damages or other appropriate relief to any person with an interest in preserving the burial site or in reinterring the human remains and objects related to the burial in the burial site. Any person with an interest in preserving a burial site or in reinterring the human remains in the burial site may bring an action for an injunction to prevent disturbance to the burial site or the cataloged land contiguous to a cataloged burial site or to obtain the human remains and objects related to the burial in the burial site for appropriate reinterment, in the order of priority specified in
sub. (6) (a).
157.70(9)
(9) Preservation of rights. The transfer of title to any property shall not change the rights and duties of any person under this section.
157.70(10)(a)(a) Any person who fails to report the disturbance of a burial site or the cataloged land contiguous to a cataloged burial site as required under
sub. (3) shall forfeit not less than $100 nor more than $1,000.
157.70(10)(b)
(b) Any person who intentionally disturbs a burial site which is not cataloged without the authorization of the director under
sub. (4) (c) 2. or
(d) shall forfeit not less than $500 nor more than $2,000 if the burial site is not dedicated or shall forfeit not less than $1,000 nor more than $10,000 if the burial site is dedicated.
157.70(10)(c)
(c) Any owner who intentionally causes or permits any activity which disturbs a burial site after receiving notice from the director under
sub. (4) (a) without the authorization required under
sub. (4) (c) 2. or
(d) shall forfeit not less than $1,000 nor more than $10,000.
157.70(10)(d)
(d) Any person who intentionally causes or permits any activity which disturbs a cataloged burial site or the cataloged land contiguous to a cataloged burial site without a permit issued under
sub. (5) shall forfeit not less than $1,000 nor more than $10,000.
157.70(10)(e)
(e) Any person who disturbs a burial site for commercial gain not related to use of the land where a burial site is located or who disturbs a cataloged burial site for commercial gain related to use of the land where a burial site is located in violation of this section may be fined not to exceed 2 times the gross value gained or 2 times the gross loss caused by the disturbance, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred, or imprisoned for not more than one year in the county jail or both. In calculating the amount of the fine based on personal injury, any measurement of pain and suffering shall be excluded.
157.70 Cross-reference
Cross-reference: See also ch.
HS 1, Wis. adm. code.
157.70 Note
Note: 1985 Wis. Act 316, which created this section, contains extensive notes. Also, Section 1 of the Act is entitled "Legislative findings and purpose".
