Wisconsin Shipwrecks: Finders Keepers?

Page 2: Public Trust Doctrine

Protecting Shipwrecks

Wisconsin has "reserved unto itself the exclusive right and privilege of field archaeology on state sites ... in order to protect and preserve archaeological and scientific information, matter and objects."⁵⁵ Field archaeology is the study of the traces of human culture by means of surveying, digging, sampling, excavating, or removing objects⁵⁶ at an archaeological site.⁵⁷ Submerged cultural resources are archaeological sites or historic property that are located beneath the surface of a lake or stream.⁵⁸ The declared policy of Wisconsin is to encourage a comprehensive program of historic preservation to promote the use and conservation of its cultural heritage for education, inspiration, pleasure, and enrichment of the public.⁵⁹

       It is illegal to remove, deface, injure, or destroy any archaeological object from a shipwreck site without state permission⁶⁰; such violations are punishable by a fine of from $1,000 to $5,000.⁶¹ Department of Natural Resources (DNR) wardens have the power to obtain search warrants and to arrest in order to enforce these laws.⁶²Property such as vehicles, boats, trailers, diving equipment, and electronic search gear of persons used in illegal wreck diving or damage and/or artifact damage and/or removal can be seized and confiscated at the court's order.⁶³ Additionally, any removal of an archaeological object for commercial gain shall forfeit twice the value of that object.⁶⁴ All of these Wisconsin statutes pertaining to submerged cultural resources should be considered as a package because statutes relating to the same subject matter are to be construed together and harmonized.⁶⁵ When a state agency has a particular competence or expertise on an issue, as in the case of the WHS, the courts will sustain its legal conclusions if they are reasonable.⁶⁶ Alleged violations of the state laws can be prosecuted by the district attorney or the attorney general.

       Shipwrecks in joint federal-state jurisdictional waters (Lakes Michigan and Superior and the Mississippi River) also are protected by federal statutes. Where violations occur on federal waters, the U.S. Attorney also can prosecute.⁶⁷ It is a federal offense to remove by force, steal, or destroy any property belonging to a wrecked vessel lost on the Great Lakes, punishable by a fine of up to $5,000 and/or up to 10 years imprisonment.⁶⁸

Public Access to Shipwrecks

The WHS is the principal state agency for administering historic preservation activities and programs⁶⁹ relative to their preservation, management, and public use.⁷⁰It works in tandem with the DNR to manage Wisconsin's submerged cultural resources.⁷¹ Wisconsin's field archaeology law is not intended to burden persons who wish to use public state property for recreational and other lawful purposes.⁷² The WHS Underwater Archaeology Program has worked actively to identify the state's shipwrecks through field research; publication of books and reports; public lectures; buoying wrecks for easy public locating; and publishing wreck site cards for field use, showing wreck location, site plans, and vessel histories. This program works to ensure that the public has recreational use of these sites, while at the same time protecting these sites from looting and vandalism.⁷³

Conclusion

Wisconsin's shipwrecks are submerged cultural resources that belong to all of us. There is no "finders keepers" for shipwrecks in Wisconsin's waters. Legally they are titled in the state through a unique dual legal evolution. One route commences with the British-American Treaty of Paris of 1783 ending the Revolutionary War, whereby title to the Great Lakes and their sea floors was transferred to the United States. Congress in turn transferred title through the Northwest Ordinance of 1787 to what would become the future states formed from that ceded territory, and enacted the Submerged Lands Act in 1953. For more than a century, the courts have affirmed that state title to the lake beds was held in an active public trust by the respective Great Lakes states, including Wisconsin.

       The second titling route was the Abandoned Shipwreck Act of 1987. Here Congress declared the United States to be the owner of all coastal abandoned shipwrecks, including those of the Great Lakes, and then retitled them in the respective littoral states for their care, management, and preservation. The Act was unnecessary for Wisconsin and the Great Lakes states, but it represents a second protectional avenue for those states.

       Some irresponsible voices of the sport diving and wreck diving community falsely claim that the laws designed to preserve shipwrecks for all to enjoy will end their diving on shipwrecks.⁷⁴ The law's goal is to preserve the rights for all users and to prevent the shipwrecks from being looted and damaged by the malicious few. The public, and the diving community in particular, must recognize the difference between those who dive on historic ships for knowledge and pleasure and those who dive on them for monetary gain. The press too quickly bestows the title of "underwater archaeologist" on any diver who raises artifacts from the deep. There is a long and honorable tradition of salvage at sea, but it must not be confused with archaeology. Shipwrecks are time capsules of history reflecting daily life as of the day of their sinking. "Wisconsin encourages visitors to enjoy these resources, and to take only pictures and leave only bubbles so that other visitors may also have an enjoyable, educational, and unique diving experience."⁷⁵

Endnotes

¹ Gary Kinder, Ship of Gold in the Deep Blue Sea (1998) is the fascinating story of the S.S. Central America salvage operation and its complicated legal battle plan and execution in federal court.

² Wis. Stats. §§ 44.30 and 44.47(5m)(b). (All references are to the 1997-98 Wisconsin Statutes).

³ Ordinance of the Northwest Territory (1787), Article V.

⁴ Wis. Stat. § 1.01.

⁵ C. Beck Co. v. City of Milwaukee, 139 Wis. 340, 351, 120 N.W. 293 (1909).

⁶ The Propeller Genesee Chief, 53 U.S. 443 (1851), superseded by statute. Executive Jet Aviation Inc. v. City of Cleveland, 409 U.S. 249 (1972).

⁷ Illinois Cent. R.R. Co. v. State of Illinois, 146 U.S. 387, 435, 437, 452-53 (1892), aff'd 154 U.S. 225 (1894); Angelo v. Railroad Comm'n, 194 Wis. 543, 217 N.W. 570 (1928); Munro v. Meilke, 200 Wis. 107, 227 N.W. 394 (1929); Colson v. Salzman, 272 Wis. 397, 75 N.W.2d 421 (1956); State v. Trudeau, 139 Wis. 2d 91, 402 N.W.2d 337 (1987); State v. Town of Linn, 205 Wis. 2d 426, 556 N.W.2d 394, rev. denied, 201 Wis. 2d  287, 560 N.W.2d 275 (1996); Sterlingworth Condominium Ass'n Inc. v. State Dep't of Natural Resources, 205 Wis. 2d 710, 556 N.W.2d 201, 791 (Ct. App. 1996); Pollard v. Hagan, 44 U.S. 212, 230 (1845); Doemel v. Janty, 180 Wis. 225, 193 N.W. 393 (1923).

⁸ Barney v. Keokuk, 94 U.S. 324, 333 (1876).

⁹ McLennan v. Prentice, 85 Wis. 427, 444-45, 55 N.W. 764 (1893).

¹⁰ Shively v. Bowlby, 152 U.S. 1, 11 (1894).

¹¹ Id. at 14.

¹² Id. at 57.

¹³ Id. at 26.

¹⁴ Id. at 58.

¹⁵ Wis. Stats. §§ 30.10(1) and 281.31(1); Whipple, Carlyle H., 57 Marq. L. Rev. 26, 27 (1973); see also Halsey,John R., Beneath the Inland Seas: Michigan's Underwater Archaeological Heritage at 29 (1990).

¹⁶ Kinzer v. Bidwell,55 Wis. 2d 749, 755, 201 N.W.2d 9 (1972).

¹⁷ Just v. Marinette County, 56 Wis. 2d 7, 18, 201 N.W.2d 761 (1972).

¹⁸State v. Bleck, 114 Wis. 2d 454, 465, 338 N.W.2d 492 (1983); Illinois Steel Co. v. Bilot, 109 Wis. 418, 426, 84 N.W. 855 (1901); Borsellino v. Wis. Dep't of Natural Resources, 232 Wis. 2d 430, 443, 606 N.W.2d 255 (Ct. App. 1999).

¹⁹ State v. Public Serv. Comm'n, 275 Wis. 112, 119, 81 N.W.2d 71, 74 (1957); State v. Town of Linn, 205 Wis. 2d 426, 556 N.W.2d 394, 402 (Ct. App. 1996).

²⁰ Muench v. Public Serv. Comm'n, 261 Wis. 492, 511-12, 53 N.W.2d 514, 522 (1952), opinion adhered to on re hearing, 55 N.W. 40 (Wis. 1952).

²¹ State v. Public Serv. Comm'n, 275 Wis. 112, 117, 81 N.W. 2d 71 (1957).

²² Colson v. Salzman, 272 Wis. 397, 75 N.W.2d 421, 423 (1956); Hixon v. Public Serv. Comm'n, 32 Wis. 2d 608, 146 N.W.2d 577, 582 (1966).

²³ 43 U.S.C. §§ 1301 - 1315 (1995) (all references are to the 1997 United States Code).

²⁴ Wis. Stat. § 27.012 (1969).

²⁵ 70 Wis. Op. Att'y Gen. 18, 21, 23 (1970).

²⁶ Wis. Stat. § 44.47(1)(i) - (5m) and (5), respectively.

²⁷ 43 U.S.C. §§ 2101 - 2106. The National Park Service of the U.S. Department of Interior is the administering federal agency with respect to the ASA.

²⁸ 43 U.S.C. § 2101.

²⁹ 43 U.S.C. § 2103(1), (2).

³⁰ 43 U.S.C. § 2102(d).

³¹ 43 U.S.C. § 2103(a).

³² 43 U.S.C. § 2106(a).

³³ 43 U.S.C. § 1301(a)(1).

³⁴ 16 U.S.C. § 470(a). To be eligible for listing in the National Register of Historic Places, the criteria are established by the Secretary of the Interior and found in 36 C.F.R. Part 63 and 20 National Register Bulletin, U.S. Department of the Interior.

³⁵ 43 U.S.C. § 2105(d).

³⁶ 43 U.S.C. § 130 (a)(1). Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be the Seabird, 19 F.3d 1136, n.1 (7th Cir. 1994), cert. denied, 513 U.S. 961 (1994).

³⁷ 43 U.S.C. § 2105(c).

³⁸ 43 U.S.C. § 2106(a).

³⁹ Sea Hunt Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634 (4th Cir. 2000).

⁴⁰ California v. Deep Sea Research Inc., 523 U.S. 491 (1998).

⁴¹ California, 102 F.3d 379 (9th Cir. 1996); aff'd in part, vacated in part, 523 U.S. 491 (1998); 63 A.L.R.2d 1369 (19__).

⁴² 43 U.S.C. § 2102(a).

⁴³ Deep Sea Research Inc. v. Brother Jonathan, 89 F.3d 680 (11th Cir. 1996), aff'd in part, 523 U.S. 491, 149 (1999).

⁴⁴ Fairport Int'l Exploration Inc. v. Shipwrecked Vessel Known as the Captain Lawrence, 913 F. Supp. 552, 556 (D.C. Mich 1990), 177 F.3d 491 (6th Cir. 1999).

⁴⁵ California, 523 U.S. 491 (1998); Fairport, 177 F.3d at 500 (6th Cir. 1999); Zych, 19 F.3d at 1140, 1143 (7th Cir. 1994).

⁴⁶ Fairport, 177 F.3d at 499 (6th Cir. 1999).

⁴⁷ Madruga v. Superior Court of State of Cal. in and for San Diego County, 346 U.S. 556, 560 (1954); Hans v. Louisiana, 134 U.S. 1 (1890); Florida Dep't of State v. Treasure Salvors Inc., 458 U.S. 670 (1982).

⁴⁸ 43 U.S.C. § 2106(a).

⁴⁹ Columbus-America Discovery Group v. Atlantic Mut. Ins., 974 F.2d 450, 459 (4 CA 1992), cert. denied, U.S. 113 S. Ct. 1625.

⁵⁰ Fairport, 177 F.3d at 498.

⁵¹ Columbus, 974 F.2d 450 (4th Cir. 1992).

⁵² Klein v. Unidentified Wrecked and Abandoned Sailing Vessel, 758 F. 2d 1511, 1514 (11th Cir. 1985).

⁵³ Columbus,974 F.2d 450 (4th Cir. 1992).

⁵⁴ Sea Hunt, 221 F.3d at 641.

⁵⁵ Wis. Stat. § 44.47.

⁵⁶ Wis. Stat. § 44.47 (1)(d).

⁵⁷ Wis. Stat. § 44.47 (1)(b).

⁵⁸ Wis. Stat. § 44.47 (1)(i).

⁵⁹ Wis. Stat. § 44.30.

⁶⁰ Wis. Stat. § 44.47 (2).

⁶¹ Wis. Stat. § 44.47 (7)(a)(2).

⁶² Wis. Stat. § 29.921(2).

⁶³ Wis. Stat. § 29.931(2).

⁶⁴ Wis. Stat. § 44.47(7)(a)(3).

⁶⁵ Cornell Univ. v. Rusk County, 166 Wis. 2d 811, 819, 481 N.W.2d 485, 489 (Ct. App. 1992); Sterlingworth Condominium Ass'n Inc. v. State Dep't of Natural Resources, 205 Wis. 2d 710, 556 N.W.2d 791, 796 (Ct. App. 1996).

⁶⁶ Nelson Bros. Furniture Corp. v. Wisconsin Dep't of Revenue,

⁶⁷ 18 U.S.C. § 1658(a).

⁶⁸ 18 U.S.C. § 1658(a).

⁶⁹ Wis. Stats. §§ 44.02(21) and 44.34(4).

⁷⁰ Wis. Stat. § 44.5(m)(e).

⁷¹ Wis. Stat. § 44.5(m)(a).

⁷² Wis. Stat. § 44.47.

⁷³ Wisconsin Department of Natural Resources, Bureau of Law Enforcement, PUB-LE-314-98 at 3, 1997, Boating Program Report,

⁷⁴ Peter E. Hess, "Arrested for Shipwreck Diving!," 5 Advanced Diver Magazine at 40 (2000).

⁷⁵ Steve Harrington, Diver's Guide to Wisconsin, (quoting David J. Cooper, State Underwater Archaeologist of the Wisconsin Historical Society).