44.47 Field archaeology. This state reserves to itself the exclusive right and privilege of field archaeology on state sites, and establishes regulations for field archaeology on sites owned by political subdivisions, in order to protect and preserve archaeological and scientific information, matter and objects. It is a declaration of legislative intent that persons practicing field archaeology on privately owned land are encouraged to pursue their field archaeology in accordance with this section, and that the looting of all archaeological remains be strongly discouraged. Persons having knowledge of the location of archaeological sites are encouraged to communicate such information to the state archaeologist. This section is not intended to burden persons who wish to use state public property for recreational and other lawful purposes or to unnecessarily restrict the use of state public property.

(1) Definitions. As used in this section:

(a) “Archaeological methods" means scientific procedures used in field archaeology by recognized professional authorities on archaeology.

(b) “Archaeological site" means any land or the bed of any stream or lake where there are objects or other evidence of archaeological interest, aboriginal mounds and earthworks, ancient burial grounds, prehistoric and historical ruins, Indian mounds, historic and prehistoric watercraft and associated objects, aircraft and other archaeological and historical features.

(c) “Data" means field notes, photographs, maps and other records relating to field archaeology.

(d) “Field archaeology" means the study of the traces of human culture by means of surveying, digging, sampling, excavating or removing objects.

(e) “Local site" or “local archaeological site" means an archaeological site owned by a political subdivision.

(f) “Object" means an article, implement or other item of archaeological interest. “Object" does not include human remains, as defined in s. 157.70 (1) (f), or a sunken log, as defined in s. 170.12 (1) (b).

(g) “Scientific institutions" means museums, historical societies, foundations for archaeological study, state agencies and scholarly groups with professional standing and physical facilities for the display, study and preservation of objects of archaeological interest.

(h) “State site" or “state archaeological site" means an archaeological site owned by this state.

(i) “Submerged cultural resource" means an archaeological site or historic property that is located beneath the surface of a lake or stream.

(2) Unlicensed field archaeology prohibited. No person other than the state archaeologist and individuals licensed by the director may engage in any field archaeology on any state site or site owned by a political subdivision.

(3) State archaeologist.

(a) Appointment. The state archaeologist shall be a qualified archaeologist residing in this state and shall be appointed by the director.

(b) Duties and powers of state archaeologist. The state archaeologist shall:

1. Sponsor, engage in and direct fundamental research into the archaeology of this state and encourage and coordinate archaeological research and investigation undertaken within the state.

2. Cooperate with other state agencies and political subdivisions which have authority in areas where archaeological sites are located, or which have the responsibility for marking sites or arranging for their being viewed by the public.

3. Encourage the preservation of archaeological sites located on privately owned property.

4. Protect objects of archaeological significance discovered by field archaeology at state sites or discovered during the course of any public construction or demolition work on state sites, and encourage the protection of such objects discovered during the course of any other construction or demolition work.

5. Cooperate with the historical society, public and private institutions of higher education in this state, and other custodians to preserve objects of archaeological significance, together with the data relating thereto.

6. Encourage the dissemination of archaeological facts through the publication of reports of archaeological research conducted within the state.

7. Approve permits for qualified persons to engage in field archaeology as provided in sub. (4) and to otherwise carry out and enforce this section.

8. Administer the state archaeology program under s. 44.48 (2).

(4) Permits.

(a) The director, acting as an agent of this state, may issue upon such terms and conditions, including restriction to a specific state site on land, as he or she designates, to a qualified natural person approved by the state archaeologist, a permit to engage in field archaeology on state sites and sites owned by political subdivisions. If a state site or the area described in an application is under the jurisdiction of any other state agency or if the field archaeology to be licensed interferes with a project of any other state agency, the director shall first obtain the approval of that state agency. The director may not issue a permit for field archaeology on a site owned by a political subdivision without the written approval of the political subdivision which owns the site. No state agency or political subdivision may withhold that approval without good cause. The director by rule may establish fees for processing applications, for permits or for renewal of permits.

(b) If a site is located on privately owned land, any person wishing to dig or excavate at such a site is strongly encouraged to secure a permit under this section. The applicant for a permit must submit the written consent of the owner.

(c) The director may waive sub. (3) (b) 7. in an emergency in which objects of archaeological interest are found in the course of construction or demolition work, or in other situations in which time is of the essence to save objects or gather data.

(d) The director, upon the recommendation of the state archaeologist, the state agency administering the state site or the political subdivision which owns the site, may revoke or suspend a permit because of the improper conduct of the permittee, the use of improper or substandard archaeological methods or for other good cause.

(5) Ownership, custody and use of objects and data. Except as provided in sub. (5r) and s. 170.12, the state reserves to itself the title to all objects found and data gathered in field archaeology on state sites. Although a permit may name a custodian other than the historical society, title to the objects and data discovered at state sites is reserved to the historical society as trustee for the state. Physical possession of such objects shall revert to the state if such custodian ceases to exist, or if the director, on the recommendation of the state archaeologist, finds that the custodian is not properly caring for them or keeping them conveniently available for study by students of archaeology.

(5m) Submerged cultural resources.

(a) There is established, to be administered by the historical society and department of natural resources, a program for submerged cultural resources of this state.

(b) The historical society, in consultation with the department of natural resources, shall coordinate the activities of the state relating to the preservation, management and public use of submerged cultural resources. The historical society may enter into agreements with federal and state agencies, political subdivisions and nonprofit organizations regarding the preservation, management and use of submerged cultural resources and the management of bottomland preserves. On or before February 1 of each odd-numbered year, the historical society shall submit a report to the governor and to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), on submerged cultural resources activities and implementation of this subsection.

(c) The historical society and department of natural resources may by rule designate areas of the bed of any stream or lake as bottomland preserves, for the purpose of enhancing preservation, management and public use of any submerged cultural resources within the bottomland preserve. A bottomland preserve may encompass more than one object or archaeological site.

(d) Before designation of an area as a bottomland preserve, the historical society shall consider all of the following:

1. If the preserve will provide preservation, management and public use of submerged cultural resources.

2. The extent to which an inventory of submerged cultural resources has been conducted for the area within the proposed bottomland preserve.

3. Whether a plan has been prepared for the management of submerged cultural resources within the proposed bottomland preserve and for the recreational management and development of the proposed bottomland preserve.

4. The existence of an entity that will assume responsibility for the management of the bottomland preserve.

5. The availability of existing or planned facilities necessary for recreational uses of the bottomland preserve, including roads, boat landings, marinas, boat and diving charter services, hotels, medical decompression facilities and rescue agencies.

(e) The historical society and department of natural resources may promulgate rules relating to the access, use, stewardship, management, protection and recreational development of bottomland preserves, and the preservation, conservation, curation and display of submerged cultural resources and objects removed from underwater archaeological sites.

(5r) Sunken logs. When reviewing an application to raise and remove sunken logs under s. 170.12, all of the following apply:

(a) If the director determines that a permit is necessary to preserve or protect an identified archaeological site, the director may require that a permit under this section be secured.

(b) In all other cases, the director shall waive the requirement for a permit under this section, but may recommend requirements relating to the gathering of data regarding any activity done pursuant to a permit issued under s. 170.12, which requirements shall be communicated to the board of commissioners of public lands and may be incorporated by that board into the s. 170.12 permit.

(6) Cooperation of state agencies and political subdivisions. All state agencies and political subdivisions whose activities may be affected under this section shall cooperate with the historical society and the state archaeologist to carry out this section.

(7) Penalties.

(a)

1. Whoever violates sub. (2) or any rules promulgated under sub. (5m) (e) shall forfeit not less than $100 nor more than $500.

2. Whoever intentionally defaces, injures, destroys, displaces or removes any archaeological object or data belonging to the state, or intentionally interferes with evidence or work on any state site or site owned by a political subdivision for which a permit has been issued under this section or intentionally violates any other provision of this section or any rules promulgated under sub. (5m) (e) shall be fined not less than $1,000 nor more than $5,000.

3. Whoever removes any archaeological object from a state site or site owned by a political subdivision for commercial gain in violation of this section or any rules promulgated under sub. (5m) (e) shall forfeit an amount not to exceed 2 times the gross value gained or the gross loss caused by the disturbance, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred.

(b) The director may refuse to issue or renew or may suspend or revoke the permit of any person who has violated this section or any rules promulgated under sub. (5m) (e). The director may refuse to name a school or scientific institution as the custodian of objects or data under any permit or agreement, if that school or scientific institution has failed in its duty to care for and preserve objects or data belonging to the state or has failed to make such objects or data conveniently available to the public.

(8) Review board. Appeals from decisions of the director shall be made to a review board composed of 3 persons: a member of the Wisconsin archaeological society, a member of the Wisconsin archaeological survey, and a member of the board of curators of the historical society. Each board member shall be chosen by the organization which the board member represents and shall serve without compensation. The review board shall submit its recommendations on all appeals to the board of curators of the historical society for final decision.

(9) Human burial sites. If a permit is required for field archaeology activities at a human burial site under s. 157.70, this section applies to any objects not related to the burial except that a permit is not required under this section.

History: 1975 c. 365; 1985 a. 316; 1987 a. 395 ss. 12 to 16, 39; Stats. 1987 s. 44.47; 1991 a. 39, 206, 269, 315, 316; 1997 a. 27.

This section applies to vessels and their contents, located on state sites, if the vessels or contents have archaeological interest, except when federal admiralty law takes precedence or when the vessel or object is properly claimed by the owner as specified in s. 20.909 or ss. 170.07 to 170.10. 59 Atty. Gen. 18.

Wisconsin Shipwrecks: Finders Keepers? Whipple & Whipple. Wis. Law. Sept. 2001.