157.70(2m)(d) (d) As it deems necessary, review determinations of the director and the division under sub. (5).
Effective date note Note: Par. (d) is shown as amended eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text (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).
157.70(2m)(e) (e) As it deems necessary, review disposition actions taken by the director under sub. (6).
157.70(2m)(f) (f) As it deems appropriate, approve transfers of burial sites under sub. (6m) (b) 2.
157.70(2m)(g) (g) Hold hearings and issue decisions under sub. (2g) (a).
Effective date note Note: Par (g) is created eff. 8-1-18 by 2017 Wis. Act 222.
157.70(2m)(h) (h) Review decisions of the director and issue decisions regarding removal of land from the catalog under sub. (2j) (b) 3.
Effective date note Note: Par. (h) is created eff. 8-1-18 by 2017 Wis. Act 222.
157.70(2p) (2p)Application for registry. Any person may apply to the board for entry in the registry and shall indicate in which burial site she or he is claiming an interest.
157.70(2r) (2r)Site disturbance prohibited. Except as provided under subs. (4) and (5) and ss. 157.111 and 157.112, no person may intentionally cause or permit the disturbance of a burial site or cataloged land contiguous to a cataloged burial site. This subsection does not prohibit normal agricultural or silvicultural practices which do not disturb the human remains in a burial site or the surface characteristics of a burial site.
157.70(3) (3)Report of disturbed burial sites.
157.70(3)(a)(a) Except as provided under s. 979.01, a person shall immediately notify the director if the person knows or has reasonable grounds to believe that a burial site or the cataloged land contiguous to a cataloged burial site is being disturbed or may be disturbed contrary to the requirements of subs. (4) and (5).
157.70(3)(b) (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.
Effective date note Note: Par. (b) is shown as amended eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text (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).
157.70(4) (4)Procedure for uncataloged burial sites.
157.70(4)(a)(a) If the director determines that a burial site reported under sub. (3) (a) is not cataloged, 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 notify the board, and any person who has or may have an interest in the burial site, that a burial site has been reported under sub. (3).
Effective date note Note: Par. (a) is shown as amended eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text (a) If the director determines that a burial site reported under sub. (3) is not cataloged under sub. (2) (a), he or she shall 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 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).
157.70(4)(b) (b) No owner who has received notice under par. (a) may in any way intentionally cause or permit any activity which would disturb the burial site which is the subject of the notice unless authorized by the director under par. (c) 2. or (d).
157.70(4)(c)1.1. Using information available concerning the burial site and the proposed activity, the director shall determine whether the proposed activity will disturb the burial site and whether the registry under sub. (2) (e) shows that any person has an interest in the burial site.
157.70(4)(c)2. 2. If the director determines that the proposed activity will not disturb the burial site or will disturb a burial site in which no person is shown on the registry under sub. (2) (e) to have an interest, he or she shall notify the owner of the owner's right to cause or permit the activity.
157.70(4)(c)3. 3. If the director determines that the proposed activity will disturb a burial site in which any other person who is not the owner is shown on the registry under sub. (2) (e) to have an interest and that the interest is substantial, the director shall notify the owner that the owner may not cause or permit the activity unless the owner does one of the following:
157.70(4)(c)3.a. a. Subject to s. 157.111, authorizes the director or a qualified archaeologist approved by the director to excavate the burial site to remove and analyze any human remains and objects related to the burial in the burial site from the burial site within a reasonable time, beginning within 30 days of when ground conditions permit, for disposition under sub. (6).
157.70(4)(c)3.b. b. Changes the proposed activity so as not to disturb any burial site.
157.70(4)(cm) (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.
Effective date note Note: Par. (cm) is created eff. 8-1-18 by 2017 Wis. Act 222.
157.70(4)(d) (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.
Effective date note Note: Par. (d) is shown as amended eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text (d) If the director determines that an owner has satisfied the requirements under par. (c) 3., he or she shall 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.
157.70(4)(e) (e) If under par. (c) 3. a. all human remains and objects related to the burial in a burial site reported under sub. (3) (a) are not removed from the burial site, the director shall enter the burial site into the record prepared under sub. (2) (a).
157.70(4)(f) (f) The director shall submit a written report to the board of any determination which he or she makes under this subsection.
157.70(5) (5)Procedure for cataloged burial sites.
157.70(5)(a)(a) No person may intentionally cause or permit the disturbance of a cataloged burial site or the cataloged land contiguous to a cataloged burial site without a permit from the director issued under this subsection.
157.70(5)(b)1.1. 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 apply to the director for a permit to disturb the burial site or the land. The application shall include the purpose of the disturbance.
157.70(5)(b)2. 2. The director shall notify any person 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.
Effective date note Note: Par. (b) is shown as affected eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text (b) 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:
Effective date text 1. 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.
Effective date text 2. On a form provided by the director, notify any person whose name the director has sent under subd. 1. 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.
157.70(5)(c)1.1. 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 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).
Effective date note Note: Subd. 1. is shown as amended eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text 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).
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.a. a. Direct kinship.
157.70(5)(c)1m.b. b. A cultural, tribal or religious affiliation.
157.70(5)(c)1m.c. c. A scientific, environmental or educational purpose.
157.70(5)(c)1m.cm. cm. Historical and aesthetic significance of the burial site.
157.70(5)(c)1m.d. d. Land use.
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 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:
Effective date note Note: Subd. 2. (intro.) is shown as amended eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text 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.a. a. Direct kinship.
157.70(5)(c)2.b. b. A cultural, tribal or religious affiliation.
157.70(5)(c)2.c. c. A scientific, environmental or educational purpose.
157.70(5)(c)2.cm. cm. Historical and aesthetic significance of the burial site.
157.70(5)(c)2.d. d. Land use.
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 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).
Effective date note Note: Subd. 2m. is shown as amended eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text 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)2o. 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.
Effective date note Note: Subd. 2o. is created eff. 8-1-18 by 2017 Wis. Act 222.
157.70(5)(c)3. 3. If the determination under subd. 1m. or 2. is for granting a permit to disturb a burial site, 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.
Effective date note Note: Subd. 3. is shown as amended eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text 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 determination made by the director or the division under subd. 1m. or 2. may be appealed to the board.
Effective date note Note: Subd. 5. is shown as amended eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text 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) 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:
Effective date note Note: Par. (a) (intro.) is shown as amended eff. 8-1-18 by 2017 Wis. Act 222. Prior to 8-1-18 it reads:
Effective date text (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)1. 1. Direct kinship.
157.70(6)(a)2. 2. A cultural, tribal or religious affiliation.
157.70(6)(a)3. 3. A scientific, environmental or educational purpose.
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.
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2015-16 Wisconsin Statutes updated through 2017 Wis. Act 273 and all Supreme Court and Controlled Substances Board Orders effective on or before April 14, 2018. Published and certified under s. 35.18. Changes effective after April 14, 2018 are designated by NOTES. (Published 4-14-18)