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Wisconsin
Shipwrecks: Finders Keepers?
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1: Wisconsin Shipwrecks: Finders Keepers?
Public Trust Doctrine
The Public Trust Doctrine (PTD) establishes that
the title to the bottom lands of the Great Lakes is held by each bordering
state in an active public trust.7
The PTD has been expanded to include the bottom lands of the Mississippi
River and its principal tributaries8
and all of the state's navigable waters.9
The PTD had its genesis in the English common law whereby "both the title
and dominion of the sea, and of rivers and arms of the sea, where the
tide ebbs and flows, and all of the lands below the high-water mark, within
the jurisdiction of the crown of England are in the king."10
It is equally well settled that a grant from the sovereign of coastal
lands does not transfer title to the contiguous submerged lands except
when "either the language of the grant or long usage clearly indicates
that such was the intention."11
Upon the acquisition of territory by the United States from England,
dominion over its submerged lands passed to the United States for the
benefit of its citizens in trust.12
All states admitted into the Union subsequent to the American Revolution
were on an equal footing with the original 13 states receiving title to
the submerged lands within their respective boundaries. This federal grant
specifically included Wisconsin.13
These coastal lands are "governed by the laws of the respective states,
subject to the rights granted to the United States by its Constitution."14
Legislative and judicial acts have established that all natural
lake beds within Wisconsin are held in an active trust for the benefit
of the public, and all navigable waters are public waters for all to use.15
A trust is active when the trustee has affirmative duties to perform (that
is, the State of Wisconsin has the duty to protect submerged cultural
resources) with respect to administering the property for the benefit
of the designated beneficiary (that is, the general public).16
The state has a duty to actively protect and preserve its navigable waters
for fishing, recreation, and scenic beauty for the general public, and
to further this duty, the Legislature may delegate this authority.17
This duty originated in the NWO.18
The scope of Wisconsin's PTD is that it be administered by the state to
promote the general welfare19,
including recreational purposes and uses20,
and includes pleasure boating, sailing, fishing, swimming, hunting, skating,
and enjoyment of scenic breadth.21
To this listing one obviously can add scuba and sport diving, since the
scope of public uses of Wisconsin lakes and their bottom lands is open-ended.22
Through the Submerged Lands Act of 195323,
Congress reconfirmed the PTD for Wisconsin and its submerged lands in
Lakes Michigan and Superior. It proclaimed that the state owns the bottom
lands within its territorial waters and that the state bottom lands are
not to be managed in a proprietary fashion, but rather held in trust for
the benefit of all citizens of the respective states. The pre-1989 Wisconsin
Field Archaeology Act24
titled archaeological artifacts in the state but did not specifically
enumerate shipwrecks or their cargoes as a subject matter within the scope
of the Act. However, the Act was interpreted to include state ownership
of shipwrecks if such wrecks were "clearly of archaeological or historical
interest and were found under navigable waters other than streams within
the state's boundaries."25
With the 1989 amendment to the Act, the definition of submerged cultural
resources was amended specifically to include shipwrecks and their cargoes,
with their title being in the state, and to be administered by the WHS26
as cultural resources for the benefit of the general public.
The Abandoned Shipwreck
Act
The second of the converging lines of precedent for Wisconsin owning
specifically classified shipwrecks within its territorial waters is the
Abandoned Shipwreck Act of 1987 (ASA).27
Congress determined that the states have the responsibility for managing
living and nonliving resources in their waters and submerged lands, including
certain abandoned shipwrecks that have been deserted and to which the
owner has relinquished ownership rights with no retention.28
The ASA recognized the cultural value of abandoned shipwrecks. Because
of the recreational and educational opportunities offered to sport divers
and other interested groups, reasonable access to such sites should not
be denied by the states.29
The ASA defines a "shipwreck" as a vessel or wreck, its cargo, and other
contents.30
A goal of the ASA is for states to provide reasonable access by the public
to wrecks for sport diving, recreational and educational opportunities,
natural resources and habitat protection, and historic preservation of
shipwreck sites.31
It was enacted to resolve the issue of "salvage" and "finds" under federal
admiralty law relative to shipwrecks lying in joint state-federal waters.
Article III, Section 2 of the U.S. Constitution reserves "all
cases of admiralty and maritime jurisdiction" for resolution in the federal
courts. As admiralty law evolved in the United States, claims to the title
of abandoned shipwrecks were asserted in the United States district courts
under the law of finds and as salvage claims/awards against the owners
of sunken vessels. Conflicting decisions arose within the various federal
circuit courts with respect to the title to abandoned shipwrecks and salvage
awards relative to a state's authority to own and manage abandoned property
on state submerged lands. This confusion over ownership and management
resulted in Congress enacting the ASA. The ASA specifically removed the
abandoned shipwreck title issue from the admiralty law of "finds" and
"salvage."32
To effect the objectives of the ASA, Congress first asserted title
to all abandoned shipwrecks that were either: 1) embedded in submerged
lands (as defined in the Submerged Lands Act of 1953)33
of a state, or 2) on submerged state lands and either included or eligible
for inclusion in the National Register of Historic Places.34
The sole exception to the ASA are all vessels on public lands of the United
States (that is, the Apostle Islands National Lakeshore) or on Indian
tribal lands.35
The Submerged Lands Act of 1953 includes the submerged lands of the Great
Lakes.36
Congress then transferred its title to the states in which the vessels
are located.37
Finally, the admiralty laws of salvage and finds, as it applied to such
wrecks, was abrogated.38
An admiralty law exception to the ASA are sunken warships, which continue
to remain the property of their respective governments or their successor
governments unless title to them is affirmatively released.39
The term "abandoned" under the ASA conforms with its meaning under
admiralty law40,
which is that the vessel and/or its cargo are abandoned when title to
the vessel and/or cargo has been affirmatively renounced by the owner
or when circumstances give rise to an inference of abandonment.41
"Embedded" is to be "firmly affixed in the submerged lands ... such that
the use of tools of excavation is required in order to remove the bottom
sediments to gain access to the shipwreck."42
Where at least three-quarters of the vessel is clearly visible above the
surface of the sea floor, the vessel is not embedded.43
The Sixth Circuit has interpreted the ASA to mean "substantially buried"
when the state claimed the vessel was "embedded in state lands."44
The ASA is constitutional.45
The S.S. Brother Jonathan sunk in California's jurisdictional waters in
1865 carrying $2 million in gold and a U.S. Army payroll estimated at
$250,000 (all in 1865 dollars). The state made no efforts to salvage it.
Deep Sea Research Inc. located the ship in 1991 and filed an action in
admiralty in the United States district court, seeking rights to the wreck
and its cargo. At trial, it was stipulated that the wreck was located
on the state's submerged lands, but the issues of its being embedded therein,
eligible for listing in the National Register of Historic Places, and
whether it was abandoned were contested. The court found that the state
had failed to establish by a preponderance of the evidence that all of
the necessary titling events had occurred.
The Ninth Circuit affirmed, reasoning that the ASA requires the
state to present evidence that the ASA applies, that is, that the wreck
was: 1) abandoned, and 2) either embedded in the state's submerged lands
or eligible for listing in the National Register. Further, the state must
establish abandonment by clear and convincing evidence.46
Once it has been established that the shipwreck belongs to a state and
the state has possession of the object (the rem), the Eleventh Amendment
then bars in rem suits in admiralty (federal court) against the state.
But where the state does not have possession of the object (res), there
is no Eleventh Amendment bar to filing suit in admiralty against the state.47
The ASA abrogated the admiralty rules of salvage and finds as
they apply to shipwrecks subject to the Act. This is a nonsequitur as
to the laws of salvage because they "apply when the original owner retains
an ownership interest in the ship (that is, not abandoned).49Where the owner had abandoned the ship, the courts applied the law
of finds, vesting title in the finder of a non-Great Lakes shipwreck prior
to the ASA.50
An exception to the law of finds (finders keepers - losers weepers)51
is where the abandoned property is embedded in the sea bottom. It then
belongs to the owner of the sea bottom.52
The Captain Lawrence was wrecked in 1933 off Poverty Island, Mich.,
just a few miles north of Rock Island in Door County, Wis. Fairport International
Inc. brought an in rem action in 1994 in federal court to perfect title
in the vessel located on the rocky bottom in 40 to 60 feet of water on
Lake Michigan. The available technology of the 1930s permitted salvaging
the wreck. The Sixth Circuit opined that Michigan could prove abandonment
by inference, using the clear preponderance of the evidence standard.
This analysis can include express abandonment, depth of wreck, technology
available for salvage operations, length of time, steps taken by owner
toward recovery, insurance settlement terms, tax return or business records
disposition, wreck location, and failure to pursue salvage efforts. There
is a rebuttable presumption in admiralty against abandonment. Where the
owner comes forward to assert ownership in a shipwreck, abandonment must
be shown by express acts.53
An inference of abandonment is permitted, but only when no owner appears.54
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3: Protecting Shipwrecks
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