(1) If a person incurs a mining-related injury and the mining waste or mine excavation was present, in whole or in part, prior to May 22, 1980 and the waste or excavation was from the prospecting, mining or other practice of a mining company that is actively engaged in mining or prospecting in this state on May 22, 1980, then s. 107.31 applies only if: (a) The person has fully pursued all other judicial or administrative remedies against the mining company to recover damages for the mining-related injury and the person or any party subrogated to the person’s rights has not received compensation for the mining-related injury as a result of pursuing the other judicial or administrative remedies; or (b) The person chooses to pursue, as his or her sole remedy, compensation from the mining damage appropriation. If a person chooses to pursue a claim under this paragraph, he or she may not pursue any other remedy for the mining-related injury. (2) If a person makes a claim against the mining damage appropriation under the circumstances described in sub. (1) (a): (a) The claimant may introduce into evidence any relevant findings of fact made in any prior administrative or judicial proceeding. (b) The state is not subrogated under s. 107.31 (6) to the rights of the claimant and, in any case, shall be bound by any decision regarding elements of liability other than causation and injury-infact made in any prior administrative or judicial proceeding involving the claimant. (3) If a person makes a claim against the mining damage appropriation under sub. (1) (b) , the state may recover under s. 107.31 (6) any payment received by the claimant from the mining damage appropriation only if, in addition to other elements of liability, the state proves that the mining-related injury was from mine excavations or mining wastes created after May 22, 1980. The state’s burden of persuasion with regard to the latter element of liability may not be shifted to the mining company.
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