Section HS 2.04 - Disturbing burial sites(1) EXCEPTIONS. Permission from the director to disturb burial sites is not required in cases where disinterment: (a) Has been authorized under s. 69.18(4), Stats.(b) Is undertaken by a coroner or medical examiner in conjunction with a criminal investigation.(c) Has been authorized by any court order or judgment rendered under s. 69.18(4), Stats.(2) TESTING. If there is reason to believe that a burial site may be present, the director may authorize, orally or in writing, limited appropriate subsurface exploration to determine whether a property contains a burial site.(3) DIRECTOR'S INTEREST. As head of the agency representing the state's interest in preservation of the state's cultural heritage, the director shall claim an interest in all burial sites under s. 157.70(1) (g) 6, Stats.(4) UNCATALOGED BURIAL SITES. (a) If a reported activity disturbs or threatens to disturb an uncataloged burial site, the director shall notify the owner of the burial site by phone if possible and by certified letter, return receipt requested, of the disturbance of this burial site and the procedures, liabilities and penalties for enforcing violation of s. 157.70, Stats. The director may notify the board, persons on the registry, and any other person who may have an interest in the burial site. The director may request a meeting of the board.(b) If the human remains and objects related to the burial are left undisturbed, the director shall record the burial site's location and shall enter it into the catalog of burial sites as per s. HS 2.03.(c) If the owner or owner's agent wishes to remove the human remains and objects related to the burial, the owner shall arrange a schedule of excavation with the director. If the excavation work can not be done in a reasonable time by the director, the director shall send a standard contract to the owner for the owner to use in hiring a qualified archeologist approved by the director under s. 157.70(4) (c) 3 a., Stats.(d) The owner shall send a copy of the signed contract between the owner and a qualified archeologist to the director. Upon receipt of this contract, the director shall give both oral authorization and written permission to the owner allowing the disturbance of the burial site. Once this excavation is finished to the director's satisfaction, the director shall notify the owner that the owner may proceed with the proposed activity.(e) The archeologist hired under par. (b) shall submit at least 2 copies of a report to the director on the excavation and analysis of the human remains and associated objects. This report shall be reviewed and approved by the director.(5) CATALOGED BURIAL SITES. (a) Any person who wishes to disturb a cataloged burial site shall apply to the director.(b) If the applicant wishes to disturb the area within the specific legal boundaries or known area of a cataloged burial site, the director shall send the applicant the names of all persons on the registry for that site or class of sites and the forms to notify these persons of the applicant's request. This form shall state the purpose of the disturbance, information on the right of interested persons to request a hearing by the division of hearing and appeals, the purpose of such a hearing, and the consequences if no hearing is requested.(c) The applicant shall send the forms of notification, using the forms specified in this subsection to persons on the registry by certified mail, return receipt requested. Persons on the registry shall be given 30 days from date of receipt by which to comment on the proposal. If the certified letter is undeliverable, the director shall attempt to contact that person by telephone. If the addressee refuses to sign the return receipt, or fails to contact the director by mail or telephone within 30 days of returned certified letter, that person forfeits the opportunity to comment on the proposed disturbance.(d) The application to disturb a cataloged burial site shall include all of the following: 1. The applicant's name and address.2. The nature and purpose of the disturbance.3. The names of the persons on the registry who have been notified and proof of this notification in the form of the receipt from the certified letter or in the form of other documentation accepted by the director.(e) If there is no request for a hearing, within 30 days from the most recent date of receipt of the certified letters sent, the director shall decide whether to grant a permit to disturb within 30 days of that most recent dated receipt of the certified letters. The decision will be based on weighing the benefits to the applicant wishing to disturb the burial site and the benefits to persons with an interest in having the site remain undisturbed as well as the interests of the public as a whole.(f) If requested within 30 days of the receipt of the notification form by the applicant, or other persons on the registry for that site under s. 157.70(1) (g), Stats., or, if deemed necessary by the director, the director shall request that the division of hearings and appeals conduct a hearing to decide if a cataloged burial site may be disturbed.(g) This request for the division of hearings and appeals to conduct a hearing shall be made through the director who shall send copies of all documentation concerning the burial site in question to the division of hearings and appeals. The hearings held under this section shall be class 1 proceedings as defined by s. 227.01(3) (a), Stats., and review thereof shall be provided ch. 227, Stats.(h) If the director requests a hearing, the division of hearings and appeals shall schedule a hearing within 45 days of the director's request.(i) If a hearing is held, the division shall make a decision within 30 days from the close of the hearing and submission of all documents and briefs.(j) If either the division of hearings and appeals or the director grants permission to disturb the burial site, the director shall send a standard contract to be used as a basis of agreement between the owner and a qualified archeologist.(k) Any party may request that decisions rendered in any hearing under this section be appealed to the board. (L) In emergency situations, when burials on a cataloged site are being disturbed by natural forces or accidental causes, the director may waive the procedure specified in s. HS 2.04(5) and invoke the uncataloged procedure.(6) QUALIFICATIONS FOR ARCHEOLOGISTS AND SKELETAL ANALYSTS. (a) Only qualified archeologists, defined in s. 157.70(1) (i), Stats., approved by the director shall be permitted to oversee the excavation of burials. Qualified archeologists shall demonstrate experience in the excavation of burials by submitting all of the following to the director for approval:2. Two letters of reference.(b) If any human remains are removed from a burial site they shall be analyzed by a skeletal analyst approved by the director. To be approved by the director, the skeletal analyst shall demonstrate knowledge and experience in human osteology by submitting all of the following to the director for approval: 2. Two letters of reference.(7) SCHEDULE FOR THE REPORTS. The director shall negotiate with the qualified archeologist and persons on the registry for that burial site or class of burial sites on a schedule for the written report of this analysis.(8) REVIEW OF REPORTS. Two copies of the report of the excavation and analysis, along with a copy of all field notes, maps, and photographs relating to the documentation of the burials shall be submitted to the director for review.(9) BONE SAMPLES. Upon approval of the director, the skeletal analyst or archeologist may retain a sample of bone for analysis when this will aid in identifying the burial's type or class, or when this is consistent with the disposition decision as stipulated in s. HS 2.05(1).(10) ARCHIVING DOCUMENTATION. All approved reports, the copy of all field notes, maps, and photographs relating to the documentation of the burial shall be permanently archived at the state historical society.(11) COPIES OF THE REPORT. A copy of the report shall be sent to the owner of the burial site and other interested persons upon request to the director.(12) RESPONSIBILITY FOR COSTS OF EXCAVATION AND ANALYSIS.(a) Any person who obtains permission to disturb a cataloged burial site shall pay for the costs of archeological excavation and skeletal analysis. The person may hire any qualified archeologist and skeletal analyst approved by the director.(b) In instances where an uncataloged burial site is accidentally uncovered, and it is not feasible to leave the burial place, the director shall, within a reasonable time beginning 30 days of when ground conditions permit, excavate and analyze the remains at no cost to the owner. Requests for excavation shall be considered in the order in which they are received. If the director cannot accomplish the work within the time frame desired, the owner may hire, at his or her own expense, a qualified archeologist and skeletal analyst approved by the director to excavate and analyze the remains.(13) BURIAL SITES ON PUBLIC LAND. All transfers of public land containing burial sites to private parties shall be approved by a majority vote of the board. The municipality or public agency wishing to transfer a property containing a burial site shall submit a written explanation to the board. This explanation shall include a land description of the property and a copy of the proposed deed restrictions concerning the burial site.Wis. Admin. Code Historical Society HS 2.04
Cr. Register, September, 1990, No. 417, eff. 10-1-90; corrections made in (1) (c) and (5) (L) under s. 13.93(2m) (b) 7, Stats., Register April 2005 No. 592.