pa007501

Act No. 75

Public Acts of 2001

Approved by the Governor

July 23, 2001

Filed with the Secretary of State

July 24, 2001

EFFECTIVE DATE: July 24, 2001

STATE OF MICHIGAN

91ST LEGISLATURE

REGULAR SESSION OF 2001

Introduced by Reps. Gilbert and Stewart

ENROLLED HOUSE BILL No. 4953

AN ACT to amend 1994 PA 451, entitled "An act to protect the environment and natural resources of the state; to codify, revise, consolidate, and classify laws relating to the environment and natural resources of the state; to regulate the discharge of certain substances into the environment; to regulate the use of certain lands, waters, and other natural resources of the state; to prescribe the powers and duties of certain state and local agencies and officials; to provide for certain charges, fees, and assessments; to provide certain appropriations; to prescribe penalties and provide remedies; to repeal certain parts of this act on a specific date; and to repeal certain acts and parts of acts," by amending sections 76102, 76103, 76104, 76105, 76107, 76108, 76109, 76110, 76111, 76112, 76113, 76114, and 76118 (MCL 324.76102, 324.76103, 324.76104, 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:

Sec. 76102. (1) The state reserves to itself the exclusive right and privilege, except as provided in this part, of exploring, surveying, excavating, and regulating through its authorized officers, agents, and employees, all aboriginal records and other antiquities, including mounds, earthworks, forts, burial and village sites, mines or other relics, and abandoned property of historical or recreational value found upon or within any of the lands owned by or under the control of the state.

(2) The state reserves to itself a possessory right or title superior to that of a finder to abandoned property of historical or recreational value found on the state owned bottomlands of the Great Lakes. This property shall belong to this state with administration and protection jointly vested in the department and the department of history, arts, and libraries.

Sec. 76103. (1) The underwater salvage and preserve committee is created in the department to provide technical and other advice to the department and the department of history, arts, and libraries with respect to their responsibilities under this part.

(2) The underwater salvage and preserve committee shall consist of 9 members appointed as follows:

(a) Two individuals appointed by the department who have primary responsibility in the department for administering this part.

(b) Two individuals appointed by the director of the department of history, arts, and libraries who have primary responsibility in the department of history, arts, and libraries for administering this part.

(c) Five individuals appointed by the governor with the advice and consent of the senate from the general public. Two of these individuals shall have experience in recreational scuba diving.

(3) An individual appointed to the committee shall serve for a term of 3 years. A vacancy on the committee shall be filled in the same manner as an original appointment and the term of a member appointed to fill a vacancy shall be for 3 years. Members of the committee shall serve without compensation, except for their regular state salary where applicable.

(4) The chairperson of the committee shall alternate between the representatives from the department and the department of history, arts, and libraries. The chairperson shall be designated by the department or the director of the department of history, arts, and libraries, whichever is applicable from among his or her representatives on the committee. The chairperson's term shall run for 12 months, from October 1 through September 30. The department shall appoint the first chairperson of the committee for a term ending September 30, 1989. The chairperson shall call meetings as necessary but not less than 4 times per year, set the agenda for meetings, ensure that adequate minutes are taken, and file an annual report of committee proceedings with the head of the department of natural resources and the director of the department of history, arts, and libraries.

(5) The committee is an advisory body and may perform all of the following functions:

(a) Make recommendations with regard to the creation and boundaries of Great Lakes underwater preserves.

(b) Review applications for underwater salvage permits and make recommendations regarding issuance.

(c) Consider and make recommendations regarding the charging of permit fees and the appropriate use of revenue generated by those fees.

(d) Consider the need for and the content of rules intended to implement this part and make recommendations concerning the promulgation of rules.

(e) Consider and make recommendations concerning appropriate legislation.

(f) Consider and make recommendations concerning program operation.

(6) The committee shall not replace or supersede the responsibility or authority of the department of history, arts, and libraries or the department to carry out their responsibilities under this part.

Sec. 76104. A deed, as provided by this part, given by this state, except state tax deeds for the conveyance of any land owned by the state, shall contain a clause reserving to this state a property right in aboriginal antiquities including mounds, earthworks, forts, burial and village sites, mines, or other relics and also reserving the right to explore and excavate for the aboriginal antiquity by and through this state's authorized agent and employee. This section applies only to the sale of tax reverted land. The department, with the approval of the department of history, arts, and libraries, may waive this reservation when conveying platted property and when making conveyances under subpart 3 of part 21.

Sec. 76105. A person, either personally or through an agent or employee, shall not explore or excavate an aboriginal remain covered by this part upon lands owned by the state, except under a permit issued by the department with written approval of the department of history, arts, and libraries. A permit shall be issued without charge. This section does not apply to the Mackinac Island state park commission on lands owned or controlled by the Mackinac Island state park commission.

Sec. 76107. (1) Except as provided in section 76108, a person shall not recover, alter, or destroy abandoned property which is in, on, under, or over the bottomlands of the Great Lakes, including those within a Great Lakes bottomlands preserve, unless the person has a permit issued jointly by the department of history, arts, and libraries and the department pursuant to section 76109.

(2) A person who recovers abandoned property without a permit when a permit is required by this part shall transmit the property to the department of history, arts, and libraries and the recovered property shall be the property of the department of history, arts, and libraries.

(3) A person shall not remove, convey, mutilate, or deface a human body or the remains of a human body located on the bottomlands of the Great Lakes.

(4) A person who violates subsection (1) by recovering or destroying abandoned property with a fair market value of $100.00 or more is guilty of a felony, punishable by imprisonment for not more than 2 years, or by a fine of not more than $5,000.00, or both.

Sec. 76108. (1) A person may recover abandoned property outside a Great Lakes bottomlands preserve without a permit if the abandoned property is not attached to, nor located on, in, or located in the immediate vicinity of and associated with a sunken aircraft or watercraft and if the abandoned property is recoverable by hand without mechanical or other assistance.

(2) A person who recovers abandoned property valued at more than $10.00 without a permit pursuant to subsection (1) shall file a written report within 30 days after removal of the property with the department or the department of history, arts, and libraries if the property has been abandoned for more than 30 years. The written report shall list all recovered property that has been abandoned for more than 30 years and the location of the property at the time of recovery. For a period of 90 days after the report is filed, the person shall make the recovered property available to the department and the department of history, arts, and libraries for inspection at a location in this state. If the department of history, arts, and libraries determines that the recovered property does not have historical value, the department of history, arts, and libraries shall release the property to the person by means of a written instrument.

Sec. 76109. (1) A permit issued under this section shall authorize a person to recover abandoned property located on, in, or located in the immediate vicinity of and associated with a sunken aircraft or watercraft.

(2) A person shall file an application for a permit with the department on a form prescribed by the department and approved by the department of history, arts, and libraries. The application shall contain all of the following information:

(a) The name and address of the applicant.

(b) The name, if known, of the watercraft or aircraft on or around which recovery operations are to occur and a current photograph or drawing of the watercraft or aircraft, if available.

(d) A description of each item to be recovered.

(e) The method to be used in recovery operations.

(f) The proposed disposition of the abandoned property recovered, including the location at which it will be available for inspection by the department and the department of history, arts, and libraries.

(g) Other information which the department or the department of history, arts, and libraries considers necessary in evaluating the request for a permit.

(3) An application for a permit is not complete until all information requested on the application form and any other information requested by the department or the department of history, arts, and libraries has been received by the department. After receipt of an otherwise complete application, the department may request additional information or documents as are determined to be necessary to make a decision to grant or deny a permit. The department, or the department of history, arts, and libraries, shall notify the applicant in writing when the application is deficient.

(4) An applicant notified that an application for a permit may be deficient and returned due to insufficient information under subsection (3) shall, within 20 days after the date the notice is mailed, provide the information. If the applicant fails to respond within the 20-day period, the application shall be denied unless the applicant requests additional time and provides reasonable justification for an extension of time.

(5) The department and the department of history, arts, and libraries shall, with the advice of the committee, approve or disapprove an application for a permit within 30 days after the date a complete application is filed with the department. The department and the department of history, arts, and libraries may approve an application conditionally or unconditionally. A condition to the approval of an application shall be in writing on the face of the permit. The department and the department of history, arts, and libraries may impose such conditions as are considered reasonable and necessary to protect the public trust and general interests, including conditions that accomplish 1 or more of the following:

(a) Protect and preserve the abandoned property to be recovered, and the recreational value of the area in which recovery is being accomplished.

(b) Assure reasonable public access to the abandoned property after recovery.

(d) Prohibit injury, harm, and damage to a bottomlands site or abandoned property not authorized for removal during and after salvage operations by the permit holder.

(e) Prohibit or limit the amount of discharge of possible pollutants, such as floating timbers, planking, and other debris, which may emanate from the shipwreck, plane wreck, or salvage equipment.

(f) Require the permit holder to submit a specific removal plan prior to commencing any salvaging activities. Among other matters considered appropriate by either the department or the department of history, arts, and libraries, or both, the removal plan may be required to ensure the safety of those removing or assisting in the removal of the abandoned property and to address how the permit holder proposes to prevent, minimize, or mitigate potential adverse effects upon the abandoned property to be removed, that portion of the abandoned property which is not to be removed, and the surrounding geographic features.

(6) The department shall approve an application for a permit unless the department determines that the abandoned property to be recovered has substantial recreational value in itself or in conjunction with other abandoned property in its vicinity underwater, or the recovery of abandoned property would not comply with rules applying to a Great Lakes bottomlands preserve.

(7) The department of history, arts, and libraries shall approve the application for a permit unless the department of history, arts, and libraries determines that the abandoned property to be recovered has substantial historical value in itself or in conjunction with other abandoned property in its vicinity. If the property has substantial historical value, the department of history, arts, and libraries, pursuant to subsection (5), may impose a condition to the approval of the application requiring the applicant to turn over recovered property to the department of history, arts, and libraries for the purpose of preserving the property or permitting public access to the property. The department of history, arts, and libraries may authorize the display of the property in a public or private museum or by a local unit of government. In addition to the conditions authorized by subsection (5), the department of history, arts, and libraries may provide for payment of salvage costs in connection with the recovery of the abandoned property.

(8) A person who discovers an abandoned watercraft that is located outside of a Great Lakes bottomlands preserve is entitled to recover cargo situated on, in, or associated with the watercraft, if the person applies for a permit pursuant to this section within 90 days after discovering the watercraft. If an application for a permit to recover cargo is not filed within 90 days after a watercraft discovery, subject to subsections (4) and (5) an exclusive cargo recovery permit shall be issued to the first person applying for such a permit. Only 1 permit to recover the same cargo shall be issued and operative at a time. When a watercraft containing cargo is simultaneously discovered by more than 1 person, a permit shall be approved with respect to the first person or persons jointly applying for a permit.

(9) A person aggrieved by a condition contained on a permit or by the denial of an application for a permit may request an administrative review of the condition or the denial by the commission or the department of history, arts, and libraries, whichever disapproves the application or imposes the condition. A person shall file the request for review with the commission or the department of history, arts, and libraries, whichever is applicable, within 90 days after the permit application is submitted to the department. An administrative hearing conducted pursuant to this subsection shall be conducted under the procedures set forth in chapter 4 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.271 to 24.287. If neither the department nor the department of history, arts, and libraries approves the application and an administrative review is requested from both the commission and the department of history, arts, and libraries, the appeals shall be combined upon request of the appellant or either the commission or the department of history, arts, and libraries and a single administrative hearing shall be conducted. The commission and the department of history, arts, and libraries shall issue jointly the final decision and order in the case.

(10) A permit issued under this section shall be valid until December 31 of the year in which the application for the permit was filed and is not renewable. If an item designated in a permit for recovery is not recovered, a permit holder may, upon request following the expiration of the permit, be issued a new permit to remove the same abandoned property if the permit holder demonstrates that diligence in attempting recovery was exercised under the previously issued permit.

(11) A permit issued under this section shall not be transferred or assigned unless the assignment is approved in writing by both the department and the department of history, arts, and libraries.

Sec. 76110. (1) Within 10 days after recovery of abandoned property, a person with a permit issued pursuant to section 76109 shall report the recovery in writing to the department. The person recovering the abandoned property shall give authorized representatives of the department and the department of history, arts, and libraries an opportunity to examine the abandoned property for a period of 90 days after recovery. Recovered abandoned property shall not be removed from this state without written approval of the department and the department of history, arts, and libraries. If the recovered abandoned property is removed from the state without written approval, the attorney general, upon request from the department or the department of history, arts, and libraries, shall bring an action for the recovery of the property.

(2) If the department of history, arts, and libraries determines that the recovered abandoned property does not have historical value, the department of history, arts, and libraries shall release the property to the person holding the permit by means of a written instrument.

Sec. 76111. (1) Subject to subsection (7), the department of environmental quality shall establish Great Lakes bottomlands preserves by rule. A Great Lakes bottomlands preserve shall be established by emergency rule if it is determined by the department that this action is necessary to immediately protect an object or area of historical or recreational value.

(2) A Great Lakes bottomlands preserve may be established whenever a bottomlands area includes a single watercraft of significant historical value, includes 2 or more abandoned watercraft, or contains other features of archaeological, historical, recreational, geological, or environmental significance. Bottomlands areas containing few or no watercraft or other features directly related to the character of a preserve may be excluded from preserves.

(3) In establishing a Great Lakes bottomlands preserve, the department of environmental quality shall consider all of the following factors:

(a) Whether creating the preserve is necessary to protect either abandoned property possessing historical or recreational value, or significant underwater geological or environmental features.

(b) The extent of local public and private support for creation of the preserve.

(d) The extent to which preserve support facilities such as roads, marinas, charter services, hotels, medical hyperbaric facilities, and rescue agencies have been developed in or are planned for the area.

(4) The department of environmental quality and the department of history, arts, and libraries shall not grant a permit to recover abandoned artifacts within a Great Lakes bottomlands preserve except for historical or scientific purposes or when the recovery will not adversely affect the historical, cultural, or recreational integrity of the preserve area as a whole.

(5) An individual Great Lakes bottomlands preserve shall not exceed 400 square miles in area. Great Lakes bottomlands preserves shall be limited in total area to not more than 10% of the Great Lakes bottomlands within this state. However, the limitations provided in this subsection do not apply to the Thunder Bay Great Lakes bottomland preserve established in subsection (7).

(6) Upon the approval of the committee, not more than 1 vessel associated with Great Lakes maritime history may be sunk intentionally within a Great Lakes bottomlands preserve. However, state money shall not be expended to purchase, transport, or sink the vessel.

(7) The Thunder Bay Great Lakes state bottomland preserve established under R 299.6001 of the Michigan administrative code shall have boundaries identical with those described in 15 C.F.R. 922.190 for the Thunder Bay national marine sanctuary and underwater preserve. As long as the Thunder Bay national marine sanctuary and underwater preserve remains a designated national marine sanctuary, the right and privilege to explore, survey, excavate, and regulate abandoned property of historical or recreational value found upon or within the lands owned by or under control of the state within those boundaries shall be jointly managed and regulated by the department of environmental quality and the national oceanic and atmospheric administration. However, this subsection shall not be construed to convey any ownership right or interest from the state to the federal government of abandoned property of historical or recreational value found upon or within the lands owned by or under control of the state.

Sec. 76112. (1) The department and the department of history, arts, and libraries, jointly or separately, may promulgate rules as are necessary to implement this part.

(2) Within each Great Lakes bottomlands preserve, the department and the department of history, arts, and libraries may jointly promulgate rules that govern access to and use of a Great Lakes bottomlands preserve. These rules may regulate or prohibit the alteration, destruction, or removal of abandoned property, features, or formations within a preserve.

Sec. 76113. Sections 76107 to 76110 shall not be considered to impose the following limitations:

(a) A limitation on the right of a person to engage in diving for recreational purposes in and upon the Great Lakes or the bottomlands of the Great Lakes.

(b) A limitation on the right of the department or the department of history, arts, and libraries to recover, or to contract for the recovery of, abandoned property in and upon the bottomlands of the Great Lakes.

(c) A limitation on the right of a person to own either abandoned property recovered before July 2, 1980 or abandoned property released to a person after inspection.

Sec. 76114. (1) If the department or the department of history, arts, and libraries finds that the holder of a permit issued pursuant to section 76105 or 76109 is not in compliance with this part, a rule promulgated under this part, or a provision of or condition in the permit, or has damaged abandoned property or failed to use diligence in attempting to recover property for which a permit was issued, the department or the department of history, arts, and libraries, individually or jointly, may summarily suspend or revoke the permit. If the permit holder requests a hearing within 15 days following the effective date of the suspension or revocation, the commission or the department of history, arts, and libraries shall conduct an administrative hearing pursuant to chapter 4 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.271 to 24.287, to consider whether the permit should be reinstated.

(2) The attorney general, on behalf of the department or the department of history, arts, and libraries, individually or jointly, may commence a civil action in circuit court to enforce compliance with this part, to restrain a violation of this part or any action contrary to a decision denying a permit, to enjoin the further removal of artifacts, geological material, or abandoned property, or to order the restoration of an affected area to its prior condition.

Sec. 76118. (1) The underwater preserve fund is created as a separate fund in the state treasury, and it may receive revenue as provided in this part, or revenue from any other source.

(2) Money in the underwater preserve fund shall be appropriated for only the following purposes:

(a) To the department of history, arts, and libraries for the development of maritime archaeology and for the promotion of Great Lakes bottomlands preserves in this state.

(b) To the department for the enforcement of this part.

Enacting section 1. This amendatory act does not take effect unless House Bill No. 4941 of the 91st Legislature is enacted into law.

This act is ordered to take immediate effect.

Clerk of the House of Representatives.

Secretary of the Senate.

Approved

Governor.