& State Laws, Acts and Statutes
Effecting Great Lakes Shipwrecks
The following information is provided as a reference for Great Lakes wreckhunters and divers. It is a synopsis of the various State and Federal laws and statutes as they apply to Great Lakes wrecks.
In the 1970s and 80s, it became clear that many of the 3000 or so divable, historic wrecks in the Great Lakes were being irreparably damaged due to aggressive and invasive artifact collecting by sport divers. Many historically important wrecks were nearly destroyed. During the same time period, private treasure hunters such as Mel Fisher began to locate and salvage historically and monetarily valuable shipwrecks like the Atocha. As a result, the congress passed the Abandoned Shipwreck Act, which was intended to help preserve historically important shipwrecks by giving the State governments ownership of them. It was also written with the intent of curtailing growing treasure hunting boom in the US waters of the Gulf of Mexico. Unfortunately, the Act was written with substantial ambiguity and there is considerable debate over which wrecks are covered and which are not. Further, all State laws concerning historic shipwrecks are based on the ASA's awarding the wrecks to the States. The question of whether the ASA was originally intended to protect all historic wrecks or only the most historic 10% is still hotly debated and sharp lines have formed on both sides.
The exact meaning of the ASA has been tested by several recent cases in and outside of the Great Lakes. Depending on how one interprets the ASA, the States either own nearly all the abandoned shipwrecks in the Lakes, or they own only a very small number. The main ethical question is where the burden of proof should lie concerning whether a specific wreck is or is not covered by the ASA. The States claim they are the de facto owners all historic wrecks and that the burden of prooving otherwise lies with individuals who would seek title. Those seeking to profit from historic wrecks contend that the burden of proof lies with the States and that all historic wrecks are open to claim unless proven otherwise by the States. The essential legal issues are these:
1. If a legal titleholder or successor to a legal titleholder can be found for a wreck, it may not be legally abandoned and therefor, not covered by the ASA. This is what happened in the case of the Lady Elgin. Depending on how one interprets abandonment, many wrecks on the Lakes may not be legally abandoned. People who narrowly interpret the ASA believe that almost no wrecks are really abandoned and try to find insurance company records and living descendents of owners to stake a claim. The States contend that nearly all wrecks over 50 years old are abandoned.
2. If a wreck is not "embedded" in the bottomlands of the State, it may not be covered by the ASA. The definition of the term "embedded" as described in the ASA, has been the basis of considerable argument concerning the status of specific Great Lakes wrecks and leaves considerable room for interpretation. The embeddedness clause was written with Spanish galleons and coral reefs in mind and has done little to protect Great Lakes wrecks.
3. A "historic wreck" is defined by the ASA has one that has been
"deemed eligible" for inclusion in the National Register of Historic
Places (NRHP). If a wreck has not been "deemed eligible" for inclusion
in the NRHP, it may not be covered by the ASA. The States generally contend
that most historic wrecks are"inherently eligible" for inclusion and
do not need to have been evaluated to meet the criteria. Others claim that only
wrecks that have been submitted for inclusion have been deemed. This section
of the ASA also leaves considerable room for interpretation.
What does this mean to me as a diver?
For most divers the above considerations have limited implications. The State laws and statutes are on the books and will still be enforced. As such, if you are caught removing anything from any Great Lakes wreck that is over 50 years old and is not privately owned, you will be prosecuted and will need to defend yourself against felony charges. In most cases, prosecuted divers have chosen not to challenge the ASA as a defense. In such cases, the charges have usually been reduced, but the divers lost their equipment and paid big legal fees and fines. In cases where divers have chosen to challenge the ASA, nearly all have been successful in getting out of the charges. However, it has been extremely costly personally, financially and professionally. As such, unless your goal is to get publicity, further erode the ASA, or to spend a few hundred thousand dollars to own an underwater pile of boards, it probably isn't a good idea to take anything from a Great Lakes wreck.
Many wreck hunters contend that the States' de facto claim on all wrecks is un democratic. They contend that the States are heavy handed, power hungry, and have ruined peoples' lives over a few trinkets. The States claim that it is ethically and morally responsible to protect historic wrecks and to place them under public stewardship for all to enjoy. Both viewpoints have some validity and a middle ground solution is unlikely to be reached any time soon. For an excellent Point/CounterPoint view of both sides of the debate, I recommend reading the following excellent articles:
Hank Whipple describes the legal history and the moral/ethical basis for preserving
Great Lakes Wrecks
Noted diver and author Gary Gentile describes the moral and ethical problems with de facto State ownership.
1. The Abandoned Shipwreck Act of 1987 - Grants title to most abandoned historic wrecks in US bottomlands to the States. Specifically states that the Law of Finds does not apply to wrecks covered by the Act.
The Abandoned Shipwreck Act Guidelines - Provide specific definitions and recommendations to States concerning the interpretation and implementation of the Act. Very important for understanding State efforts and enforcement.
2. The American Antiquities Act of 1906 - Provides for protection of and penalties for defacing underwater cultural sites.
3. The Submerged Lands Act of 1953. - Provides for State ownership of inland bottomlands.
4. The Archeological Resources Protection Act. - Provides for protection of submerged historical sites.
5. The National Historic Preservation Act. - Mandates that Federal agencies protect submerged historic resources under their purvue.
6. The Law of Finds
An Excellent article by Diver/Lawyer Mark Wilder
7. The Law of Salvage
A Treatise on the Law of Salvage
A Basic Q&A on Salvage & Finds Law
State Laws & Statutes:
Wisconsin Statute 44.47 - Wisconsin's State statutes protecting Great Lakes shipwrecks
Wisconsin Lawyer - An excellent article by Hank Whipple covering Wisconsin law and detailing specific statutes in the footnotes at the end.
Part 761, Aboriginal Records and Antiquities, 1994 PA 451 - Michigan's State statutes protecting Great Lakes shipwrecks
Illinois Shipwrecks - An informative article comparing the various State statutes and specifically detailing those of Illinois, Indiana, Michigan & Wisconsin, listing all the Illinois statutes concerning Great Lakes shipwrecks.
20 ILCS 3405 - 3425 - Illinois Historic Preservation and Related Acts - Illinois Law protecting Great Lakes shipwrecks
Indiana Code - 312 IAC 6-3 - Indiana's administrative code regarding historic Great Lakes shipwrecks
Indiana Statute 14 - 21- 1 - Indiana Statute law protecting Great Lakes shipwrecks
Ohio Statute 1501:41
Ohio Statute 1506:31
Submerged Cultural Resources Preservation Plan - Covers all applicable Minnesota statutes and outlines State enforcement.
New York Shipwreck Law Summary - Thanks to Jim Kennard for researching this.
Pennsylvania Shipwreck Law Summary - Thanks to Jim Kennard for researching this.