HOUSE BILL No. 4953 June 13, 2001, Introduced by Reps. Gilbert and Stewart and referred to the Committee on Commerce. A bill to amend 1994 PA 451, entitled "Natural resources and environmental protection act," by amending sections 76102, 76103, 76104, 76105, 76107, 76108, 76109, 76110, 76111, 76112, 76113, 76114, and 76118 (MCL 324.76102, 324.76103, 324.26104, 324.76105, 324.76107, 324.76108, 324.76109, 324.76110, 324.76111, 324.76112, 324.76113, 324.76114, and 324.76118), sections 76102, 76103, 76104, 76105, 76107, 76108, 76109, 76110, 76112, 76113, 76114, and 76118 as added by 1995 PA 58 and section 76111 as amended by 2000 PA 441. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 76102. (1) The state reserves to itself the exclusive 2 right and privilege, except as provided in this part, of explor- 3 ing, surveying, excavating, and regulating through its authorized 4 officers, agents, and employees, all aboriginal records and other 5 antiquities, including mounds, earthworks, forts, burial and 03787'01 JCB 2 1 village sites, mines or other relics, and abandoned property of 2 historical or recreational value found upon or within any of the 3 lands owned by or under the control of the state. 4 (2) The state reserves to itself a possessory right or title 5 superior to that of a finder to abandoned property of historical 6 or recreational value found on the state owned bottomlands of the 7 Great Lakes. This property shall belong to this state with 8 administration and protection jointly vested in the department 9 and thesecretary of stateDEPARTMENT OF HISTORY, ARTS, AND 10 CULTURE. 11 Sec. 76103. (1) The underwater salvage and preserve commit- 12 tee is created in the departmentof natural resourcesto pro- 13 vide technical and other advice to the department and the 14secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE 15 with respect to their responsibilities under this part. 16 (2) The underwater salvage and preserve committee shall con- 17 sist of 9 members appointed as follows: 18 (a) Two individuals appointed by the department who have 19 primary responsibility in the departmentof natural resources20 for administering this part. 21 (b) Two individuals appointed by thesecretary of state22 DIRECTOR OF THE DEPARTMENT OF HISTORY, ARTS, AND CULTURE who have 23 primary responsibility in the department ofstateHISTORY, 24 ARTS, AND CULTURE for administering this part. 25(c) One individual appointed by the director of commerce.26 (C)(d) FourFIVE individuals appointed by the governor 27 with the advice and consent of the senate from the general 03787'01 3 1 public. Two of these individuals shall have experience in 2 recreational scuba diving. 3 (3) An individual appointed to the committee shall serve for 4 a term of 3 years. A vacancy on the committee shall be filled in 5 the same manner as an original appointment and the term of a 6 member appointed to fill a vacancy shall be for 3 years. Members 7 of the committee shall serve without compensation, except for 8 their regular state salary where applicable. 9 (4) The chairperson of the committee shall alternate between 10 the representatives from the department and the department of 11stateHISTORY, ARTS, AND CULTURE. The chairperson shall be 12 designated by the department or thesecretary of stateDIRECTOR 13 OF THE DEPARTMENT OF HISTORY, ARTS, AND CULTURE, whichever is 14 applicable from among his or her representatives on the 15 committee. The chairperson's term shall run for 12 months, from 16 October 1 through September 30. The department shall appoint the 17 first chairperson of the committee for a term ending September 18 30, 1989. The chairperson shall call meetings as necessary but 19 not less than 4 times per year, set the agenda for meetings, 20 ensure that adequate minutes are taken, and file an annual report 21 of committee proceedings with the head of thedepartments22 DEPARTMENT ofstate,natural resources,andcommerceTHE 23 DIRECTOR OF THE DEPARTMENT OF HISTORY, ARTS, AND CULTURE. 24 (5) The committee is an advisory body and may perform all of 25 the following functions: 26 (a) Make recommendations with regard to the creation and 27 boundaries of Great Lakes underwater preserves. 03787'01 4 1 (b) Review applications for underwater salvage permits and 2 make recommendations regarding issuance. 3 (c) Consider and make recommendations regarding the charging 4 of permit fees and the appropriate use of revenue generated by 5 those fees. 6 (d) Consider the need for and the content of rules intended 7 to implement this part and make recommendations concerning the 8 promulgation of rules. 9 (e) Consider and make recommendations concerning appropriate 10 legislation. 11 (f) Consider and make recommendations concerning program 12 operation. 13 (6) The committee shall not replace or supersede the respon- 14 sibility or authority of thesecretary of stateDEPARTMENT OF 15 HISTORY, ARTS, AND CULTURE or the department to carry out their 16 responsibilities under this part. 17 Sec. 76104. A deed, as provided by this part, given by this 18 state, except state tax deeds for the conveyance of any land 19 owned by the state, shall contain a clause reserving to this 20 state a property right in aboriginal antiquities including 21 mounds, earthworks, forts, burial and village sites, mines, or 22 other relics and also reserving the right to explore and excavate 23 for the aboriginal antiquity by and through this state's autho- 24 rized agent and employee. This section applies only to the sale 25 of tax reverted land. The department, with the approval of the 26secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE, 03787'01 5 1 may waive this reservation when conveying platted property and 2 when making conveyances under subpart 3 of part 21. 3 Sec. 76105. A person, either personally or through an agent 4 or employee, shall not explore or excavate an aboriginal remain 5 covered by this part upon lands owned by the state, except under 6 a permit issued by the department with written approval of the 7secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE. A 8 permit shall be issued without charge. This sectionshallDOES 9 not apply to the Mackinac Island state park commission on lands 10 owned or controlled by the Mackinac Island state park 11 commission. 12 Sec. 76107. (1) Except as provided in section 76108, a 13 person shall not recover, alter, or destroy abandoned property 14 which is in, on, under, or over the bottomlands of the Great 15 Lakes, including those within a Great Lakes bottomlands preserve, 16 unless the person has a permit issued jointly by thesecretary17of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE and the 18 department pursuant to section 76109. 19 (2) A person who recovers abandoned property without a 20 permit when a permit is required by this part shall transmit the 21 property to thesecretary of stateDEPARTMENT OF HISTORY, ARTS, 22 AND CULTURE and the recovered property shall be the property of 23 thesecretary of stateDEPARTMENT OF HISTORY, ARTS, AND 24 CULTURE. 25 (3) A person shall not remove, convey, mutilate, or deface a 26 human body or the remains of a human body located on the 27 bottomlands of the Great Lakes. 03787'01 6 1 (4) A person who violates subsection (1) by recovering or 2 destroying abandoned property with a fair market value of $100.00 3 or more is guilty of a felony, punishable by imprisonment for not 4 more than 2 years, or by a fine of not more than $5,000.00, or 5 both. 6 Sec. 76108. (1) A person may recover abandoned property 7 outside a Great Lakes bottomlands preserve without a permit if 8 the abandoned property is not attached to, nor located on, in, or 9 located in the immediate vicinity of and associated with a sunken 10 aircraft or watercraft and if the abandoned property is recover- 11 able by hand without mechanical or other assistance. 12 (2) A person who recovers abandoned property valued at more 13 than $10.00 without a permit pursuant to subsection (1) shall 14 file a written report within 30 days after removal of the prop- 15 erty with the department or thesecretary of stateDEPARTMENT 16 OF HISTORY, ARTS, AND CULTURE if the property has been abandoned 17 for more than 30 years. The written report shall list all recov- 18 ered property that has been abandoned for more than 30 years and 19 the location of the property at the time of recovery. For a 20 period of 90 days after the report is filed, the person shall 21 make the recovered property available to the department and the 22secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE for 23 inspection at a location in this state. If thesecretary of24stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE determines that 25 the recovered property does not have historical value, the 26secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE 03787'01 7 1 shall release the property to the person by means of a written 2 instrument. 3 Sec. 76109. (1) A permit issued under this section shall 4 authorize a person to recover abandoned property located on, in, 5 or located in the immediate vicinity of and associated with a 6 sunken aircraft or watercraft. 7 (2) A person shall file an application for a permit with the 8 department on a form prescribed by the department and approved by 9 thesecretary of stateDEPARTMENT OF HISTORY, ARTS, AND 10 CULTURE. The application shall contain all of the following 11 information: 12 (a) The name and address of the applicant. 13 (b) The name, if known, of the watercraft or aircraft on or 14 around which recovery operations are to occur and a current pho- 15 tograph or drawing of the watercraft or aircraft, if available. 16 (c) The location of the abandoned property to be recovered 17 and the depth of water in which it may be found. 18 (d) A description of each item to be recovered. 19 (e) The method to be used in recovery operations. 20 (f) The proposed disposition of the abandoned property 21 recovered, including the location at which it will be available 22 for inspection by the department and thesecretary of state23 DEPARTMENT OF HISTORY, ARTS, AND CULTURE. 24 (g) Other information which the department or thesecretary25of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE considers nec- 26 essary in evaluating the request for a permit. 03787'01 8 1 (3) An application for a permit is not complete until all 2 information requested on the application form and any other 3 information requested by the department or thesecretary of4stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE has been received 5 by the department. After receipt of an otherwise complete appli- 6 cation, the department may request additional information or doc- 7 uments as are determined to be necessary to make a decision to 8 grant or deny a permit. The department, or thesecretary of9stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE, shall notify the 10 applicant in writing when the application is deficient. 11 (4) An applicant notified that an application for a permit 12 may be deficient and returned due to insufficient information 13 under subsection (3) shall, within 20 days after the date the 14 notice is mailed, provide the information. If the applicant 15 fails to respond within the 20-day period, the application shall 16 be denied unless the applicant requests additional time and pro- 17 vides reasonable justification for an extension of time. 18 (5) The department and thesecretary of stateDEPARTMENT 19 OF HISTORY, ARTS, AND CULTURE shall, with the advice of the com- 20 mittee, approve or disapprove an application for a permit within 21 30 days after the date a complete application is filed with the 22 department. The department and thesecretary of state23 DEPARTMENT OF HISTORY, ARTS, AND CULTURE may approve an applica- 24 tion conditionally or unconditionally. A condition to the 25 approval of an application shall be in writing on the face of the 26 permit. The department and thesecretary of stateDEPARTMENT 27 OF HISTORY, ARTS, AND CULTURE may impose such conditions as are 03787'01 9 1 considered reasonable and necessary to protect the public trust 2 and general interests, including conditions that accomplish 1 or 3 more of the following: 4 (a) Protect and preserve the abandoned property to be recov- 5 ered, and the recreational value of the area in which recovery is 6 being accomplished. 7 (b) Assure reasonable public access to the abandoned prop- 8 erty after recovery. 9 (c)Are in conformityCONFORM with rules applying to 10 activities within a Great Lakes bottomlands preserve. 11 (d) Prohibit injury, harm, and damage to a bottomlands site 12 or abandoned property not authorized for removal during and after 13 salvage operations by the permit holder. 14 (e) Prohibit or limit the amount of discharge of possible 15 pollutants, such as floating timbers, planking, and other debris, 16 which may emanate from the shipwreck, plane wreck, or salvage 17 equipment. 18 (f) Require the permit holder to submit a specific removal 19 plan prior to commencing any salvaging activities. Among other 20 matters considered appropriate by either the department or the 21secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE, or 22 both, the removal plan may be required to ensure the safety of 23 those removing or assisting in the removal of the abandoned prop- 24 erty and to address how the permit holder proposes to prevent, 25 minimize, or mitigate potential adverse effects upon the aban- 26 doned property to be removed, that portion of the abandoned 03787'01 10 1 property which is not to be removed, and the surrounding 2 geographic features. 3 (6) The department shall approve an application for a permit 4 unless the department determines that the abandoned property to 5 be recovered has substantial recreational value in itself or in 6 conjunction with other abandoned property in its vicinity under- 7 water, or the recovery of abandoned property would not comply 8 with rules applying to a Great Lakes bottomlands preserve. 9 (7) Thesecretary of stateDEPARTMENT OF HISTORY, ARTS, 10 AND CULTURE shall approve the application for a permit unless the 11secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE 12 determines that the abandoned property to be recovered has sub- 13 stantial historical value in itself or in conjunction with other 14 abandoned property in its vicinity. If the property has substan- 15 tial historical value, thesecretary of stateDEPARTMENT OF 16 HISTORY, ARTS, AND CULTURE, pursuant to subsection (5), may 17 impose a condition to the approval of the application requiring 18 the applicant to turn over recovered property to thesecretary19of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE for the pur- 20 pose of preserving the property or permitting public access to 21 the property. Thesecretary of stateDEPARTMENT OF HISTORY, 22 ARTS, AND CULTURE may authorize the display of the property in a 23 public or private museum or by a local unit of government. In 24 addition to the conditions authorized by subsection (5), the 25secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE may 26 provide for payment of salvage costs in connection with the 27 recovery of the abandoned property. 03787'01 11 1 (8) A person who discovers an abandoned watercraft that is 2 located outside of a Great Lakes bottomlands preserve is entitled 3 to recover cargo situated on, in, or associated with the water- 4 craft, if the person applies for a permit pursuant to this sec- 5 tion within 90 days after discovering the watercraft. If an 6 application for a permit to recover cargo is not filed within 90 7 days after a watercraft discovery, subject to subsections (4) and 8 (5) an exclusive cargo recovery permit shall be issued to the 9 first person applying for such a permit. Only 1 permit to 10 recover the same cargo shall be issued and operative at a time. 11 When a watercraft containing cargo is simultaneously discovered 12 by more than 1 person, a permit shall be approved with respect to 13 the first person or persons jointly applying for a permit. 14 (9) A person aggrieved by a condition contained on a permit 15 or by the denial of an application for a permit may request an 16 administrative review of the condition or the denial by the com- 17 mission or thesecretary of stateDEPARTMENT OF HISTORY, ARTS, 18 AND CULTURE, whichever disapproves the application or imposes the 19 condition. A person shall file the request for review with the 20 commission or thesecretary of stateDEPARTMENT OF HISTORY, 21 ARTS, AND CULTURE, whichever is applicable, within 90 days after 22 the permit application is submitted to the department. An admin- 23 istrative hearing conducted pursuant to this subsection shall be 24 conducted under the procedures set forth in chapter 4 of the 25 administrative procedures act of 1969,Act No. 306 of the Public26Acts of 1969, being sections 24.271 to 24.287 of the Michigan27Compiled Laws1969 PA 306, MCL 24.271 TO 24.287. If neither the 03787'01 12 1 departmentorNOR thesecretary of stateDEPARTMENT OF 2 HISTORY, ARTS, AND CULTURE approves the application and an admin- 3 istrative review is requested from both the commission and the 4secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE, 5 the appeals shall be combined upon request of the appellant or 6 either the commission or thesecretary of stateDEPARTMENT OF 7 HISTORY, ARTS, AND CULTURE and a single administrative hearing 8 shall be conducted. The commission and thesecretary of state9 DEPARTMENT OF HISTORY, ARTS, AND CULTURE shall issue jointly the 10 final decision and order in the case. 11 (10) A permit issued under this section shall be valid until 12 December 31 of the year in which the application for the permit 13 was filed and is not renewable. If an item designated in a 14 permit for recovery is not recovered, a permit holder may, upon 15 request following the expiration of the permit, be issued a new 16 permit to remove the same abandoned property if the permit holder 17 demonstrates that diligence in attempting recovery was exercised 18 under the previously issued permit. 19 (11) A permit issued under this section shall not be trans- 20 ferred or assigned unless the assignment is approved in writing 21 by both the department and thesecretary of stateDEPARTMENT OF 22 HISTORY, ARTS, AND CULTURE. 23 Sec. 76110. (1) Within 10 days after recovery of abandoned 24 property, a person with a permit issued pursuant to section 76109 25 shall report the recovery in writing to the department. The 26 person recovering the abandoned property shall give authorized 27 representatives of the department and thesecretary of state03787'01 13 1 DEPARTMENT OF HISTORY, ARTS, AND CULTURE an opportunity to 2 examine the abandoned property for a period of 90 days after 3 recovery. Recovered abandoned property shall not be removed from 4 this state without written approval of the department and the 5secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE. 6 If the recovered abandoned property is removed from the state 7 without written approval, the attorney general, upon request from 8 the department or thesecretary of stateDEPARTMENT OF HISTORY, 9 ARTS, AND CULTURE, shall bring an action for the recovery of the 10 property. 11 (2) If thesecretary of stateDEPARTMENT OF HISTORY, ARTS, 12 AND CULTURE determines that the recovered abandoned property does 13 not have historical value, thesecretary of stateDEPARTMENT OF 14 HISTORY, ARTS, AND CULTURE shall release the property to the 15 person holding the permit by means of a written instrument. 16 Sec. 76111. (1) Subject to subsection (7), the department 17 of environmental quality shall establish Great Lakes bottomlands 18 preserves by rule. A Great Lakes bottomlands preserve shall be 19 established by emergency rule if it is determined by the depart- 20 ment that this action is necessary to immediately protect an 21 object or area of historical or recreational value. 22 (2) A Great Lakes bottomlands preserve may be established 23 whenever a bottomlands area includes a single watercraft of sig- 24 nificant historical value, includes 2 or more abandoned water- 25 craft, or contains other features of archaeological, historical, 26 recreational, geological, or environmental significance. 27 Bottomlands areas containing few or no watercraft or other 03787'01 14 1 features directly related to the character of a preserve may be 2 excluded from preserves. 3 (3) In establishing a Great Lakes bottomlands preserve, the 4 department of environmental quality shall consider all of the 5 following factors: 6 (a) Whether creating the preserve is necessary to protect 7 either abandoned property possessing historical or recreational 8 value, or significant underwater geological or environmental 9 features. 10 (b) The extent of local public and private support for cre- 11 ation of the preserve. 12 (c) Whether a preserve development plan has been prepared by 13 a state or local agency. 14 (d) The extent to which preserve support facilities such as 15 roads, marinas, charter services, hotels, medical hyperbaric 16 facilities, and rescue agencies have been developed in or are 17 planned for the area. 18 (4) The department of environmental quality and the 19secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE 20 shall not grant a permit to recover abandoned artifacts within a 21 Great Lakes bottomlands preserve except for historical or scien- 22 tific purposes or when the recovery will not adversely affect the 23 historical, cultural, or recreational integrity of the preserve 24 area as a whole. 25 (5) An individual Great Lakes bottomlands preserve shall not 26 exceed 400 square miles in area. Great Lakes bottomlands 27 preserves shall be limited in total area to not more than 10% of 03787'01 15 1 the Great Lakes bottomlands within this state. However, the 2 limitations provided in this subsection do not apply to the 3 Thunder Bay Great Lakes bottomland preserve established in sub- 4 section (7). 5 (6) Upon the approval of the committee, not more than 1 6 vessel associated with Great Lakes maritime history may be sunk 7 intentionally within a Great Lakes bottomlands preserve. 8 However, state money shall not be expended to purchase, trans- 9 port, or sink the vessel. 10 (7) The Thunder Bay Great Lakes state bottomland preserve 11 established under R 299.6001 of the Michigan administrative code 12 shall have boundaries identical with those described in 15 13 C.F.R. 922.190 for the Thunder Bay national marine sanctuary and 14 underwater preserve. As long as the Thunder Bay national marine 15 sanctuary and underwater preserve remains a designated national 16 marine sanctuary, the right and privilege to explore, survey, 17 excavate, and regulate abandoned property of historical or recre- 18 ational value found upon or within the lands owned by or under 19 control of the state within those boundaries shall be jointly 20 managed and regulated by the department of environmental quality 21 and the national oceanic and atmospheric administration. 22 However, this subsection shall not be construed to convey any 23 ownership right or interest from the state to the federal govern- 24 ment of abandoned property of historical or recreational value 25 found upon or within the lands owned by or under control of the 26 state. 03787'01 16 1 Sec. 76112. (1) The department and thesecretary of state2 DEPARTMENT OF HISTORY, ARTS, AND CULTURE, jointly or separately, 3 may promulgate rules as are necessary to implement this part. 4 (2) Within each Great Lakes bottomlands preserve, the 5 department and thesecretary of stateDEPARTMENT OF HISTORY, 6 ARTS, AND CULTURE may jointly promulgate rules that govern access 7 to and use of a Great Lakes bottomlands preserve. These rules 8 may regulate or prohibit the alteration, destruction, or removal 9 of abandoned property, features, or formations within a 10 preserve. 11 Sec. 76113. Sections 76107 to 76110 shall not be considered 12 to impose the following limitations: 13 (a) A limitation on the right of a person to engage in 14 diving for recreational purposes in and upon the Great Lakes or 15 the bottomlands of the Great Lakes. 16 (b) A limitation on the right of the department or the 17secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE to 18 recover, or to contract for the recovery of, abandoned property 19 in and upon the bottomlands of the Great Lakes. 20 (c) A limitation on the right of a person to own either 21 abandoned property recovered before July 2, 1980 or abandoned 22 property released to a person after inspection. 23 Sec. 76114. (1) If the department or thesecretary of24stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE finds that the 25 holder of a permit issued pursuant to section 76105 or 76109 is 26 not in compliance with this part, a rule promulgated under this 27 part, or a provision of or condition in the permit, or has 03787'01 17 1 damaged abandoned property or failed to use diligence in 2 attempting to recover property for which a permit was issued, the 3 department or thesecretary of stateDEPARTMENT OF HISTORY, 4 ARTS, AND CULTURE, individually or jointly, may summarily suspend 5 or revoke the permit. If the permit holder requests a hearing 6 within 15 days following the effective date of the suspension or 7 revocation, the commission or thesecretary of stateDEPARTMENT 8 OF HISTORY, ARTS, AND CULTURE shall conduct an administrative 9 hearing pursuant to chapter 4 of the administrative procedures 10 act of 1969,Act No. 306 of the Public Acts of 1969, being sec-11tions 24.271 to 24.287 of the Michigan Compiled Laws1969 12 PA 306, MCL 24.271 TO 24.287, to consider whether the permit 13 should be reinstated. 14 (2) The attorney general, on behalf of the department or the 15secretary of stateDEPARTMENT OF HISTORY, ARTS, AND CULTURE, 16 individually or jointly, may commence a civil action in circuit 17 court to enforce compliance with this part, to restrain a viola- 18 tion of this part or any action contrary to a decision denying a 19 permit, to enjoin the further removal of artifacts, geological 20 material, or abandoned property, or to order the restoration of 21 an affected area to its prior condition. 22 Sec. 76118. (1) The underwater preserve fund is created as 23 a separate fund in the state treasury, and it may receive revenue 24 as provided in this part, or revenue from any other source. 25 (2) Money in the underwater preserve fund shall be appropri- 26 ated for only the following purposes: 03787'01 18 1 (a) To thesecretary of stateDEPARTMENT OF HISTORY, ARTS, 2 AND CULTURE for the development of maritime archaeology AND FOR 3 THE PROMOTION OF GREAT LAKES BOTTOMLANDS PRESERVES in this 4 state. 5(b) To the department of commerce for the promotion of6Great Lakes bottomlands preserves.7 (B)(c)To the department for the enforcement of this 8 part. 9 Enacting section 1. This amendatory act does not take 10 effect unless Senate Bill No. _____ or House Bill No. 4941 11 (request no. 02873'01) of the 91st Legislature is enacted into 12 law. 03787'01 Final page. JCB