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February 2014

West Virginia Family Fights for Access to "Minebound" Cemetery

Since 2008, a small group of citizens in southern West Virginia has been fighting the coal industry on an unlikely front: their family cemetery.  Alpha Natural Resources, a publicly-traded coal extraction company, is currently engaged in mountaintop removal mining on a massive scale in Boone County, West Virginia. At the crest of a small hillock within the mining area is a small cemetery.  This cemetery has been used by the Jarrell family, along with other members of their now-defunct community of Lindytown, since the late 1800s. 

Some members of the Jarrell family and their allies (including local environmental activists) recently sued Alpha, alleging that it violated an agreement to keep mining at least 100 feet away from the cemetery.  They note evidence of mining within the cemetery boundary, including several toppled headstones.

In addition to their claim of desecration, the plaintiffs are also asserting a right to better access to the cemetery.  Currently, to reach the cemetery one must send notice to Alpha 10 days in advance, sit through a 30 minute safety course, surrender all cell phones and cameras, and be escorted by an Alpha employee up a dirt track that is only accessible to four-wheel drive vehicles.  The plaintiffs argue that this effectively deprives them of their ability to visit the cemetery – and to bury their dead at the cemetery in the future. 

The Jarrell’s claim raises an interesting question about the definition of “access” to a cemetery. Is mere physical access (no matter how onerous) enough?  Or are the visitors entitled to access that could reasonably accommodate a dignified funeral at the cemetery?  The ultimate outcome of the case may also determine the fate of other “mine-bound” cemeteries in the mountains of West Virginia, of which there are believed to be many. 

Incidentally, this is not the first case arising out of southern West Virginia in which historic resources are raised as a shield against strip mining.  A few years ago, a group of West Virginians unsuccessfully sued the Secretary of the Interior for refusing to place Blair Mountain (the site of a 1921 battle between unionized coal miners and state authorities) on the National Register of Historic Places.  National Register status would have protected the mountain from strip-mining by Massey Energy (Alpha’s predecessor) and Arch Coal, who held coal leases on the mountain and vehemently opposed listing the property on the Register.  Blair Mountain is located about 30 miles from the Jarrell family cemetery.

James Goodwin

Database Aims to Connect Forgotten Remains with Loved Ones

Photo credit: Jim McNutt, Observer-Reporter
Michael Neal explains new database

While it would seem unthinkable to many, thousands of cremated remains are left unclaimed every year at funeral homes, cremation providers, a government agencies across the country. The reasons for this vary—family members are unaware of their legal right to pick up the remains, unaware that the cremation has occurred or even the death itself—but with the growing popularity of cremation, some have sought a solution for this growing issue. To wit, the demand for this service, which heretofore had largely been unrealized, has been astonishing. States across the country have registered names, as well as organizations in countries as far away as Great Britain and Australia.

Enter Michael Neal. Neal is the owner and operator of William G. Neal Funeral Homes in Washington, Pennsylvania. Along with his wife, he has launched Forgotten Ashes, a national database—the first of its kind—to help people track down cremated remains of their relatives. The database, which already has more than 3,000 names registered, gives hospitals, county coroners, medical examiners and other providers with custody of cremated remains the ability to enter names of the deceased into the online database, free of charge. Once registered with Forgotten Ashes, the name becomes one of the top hits in any web search for that individual's name. Moreover, the pages can be shared across a variety of social media platforms and most importantly, the facility that registered the name can be directly contacted by family members.

As far as the law is concerned, the legal right to and responsibility of cremated remains varies by state. Most of these statutes, however, are concerned not with any kind of legal "duty," but rather on who has the legal "right" to the remains when competing claims exist. In fact, only seven states impose any kind of legal duty or obligation. But even this is somewhat misleading, as a majority of these states bind the duty with the right, leaving a watered-down legal responsibility for the remains. That said, three states do impose a punishment for for a failure to perform this duty.

Next of kin priority, again, varies by state, though most give the spouse top priority. In the main, surviving (non-minor) children are given next priority, followed by siblings or parents of the deceased. After this, there is a wide divergence. Some states, such as Texas, curtly state that priority goes to "[a]ny adult person in the next degree of kinship." Others, like Ohio, enumerate the priority of grandparents, grandchildren, appointed guardians, and "[a]ny other person willing to assume the right of disposition."

Differences in state law aside, the goal of Forgotten Ashes remains the same: to connect families with unclaimed remains of loved ones. Neal, for his part, sees the renewed interest in genealogy as a possible factor in the continued growth of Forgotten Ashes.

“When they died, no one would claim them,” Neal said. “Now you’re several generations later, and they have these cremated remains, and people are very interested in genealogy, and I think there’s a renewed interest in more or less unifying families. I think you’re going to have a generation of today that’s not concerned with why they were estranged. They just want to bring them home.”

Dal Burton

With Great Power Comes Great Responsibility

Oftentimes, upon the passing of a loved one, a family can become concerned that it will not be afforded the right to properly bury its dead as it sees fit. However, most people are not aware of their duties with regards to making a proper disposition of a body. Consequently a family may run afoul of the law for choosing to do, or not to do, something with that body.

Recently, Kaling Wald of Mississauga, Ontario, Canada became painfully aware of the duty that she had failed to fulfill to properly bury her deceased husband. Peter Wald had gone missing in January 2013 and eventually in September his body was discovered lying in one of the bedrooms of the couple’s house where Mrs. Wald and their children had been living the entire time. After the body was discovered by workers, medical technicians determined that the body had been in the house since at least march. The police ruled out foul play, but charged Wald with “neglect of duty regarding the dead.”

Wald, like countless others, is most likely wondering at this moment what exactly her duties are “regarding the dead” and discussing the charges with her lawyer. The charge, a criminal one in Canada, is somewhat obscure, even to the Detective Sergeant who charged Wald, who described the charges as “rare.”

In the United States, duties regarding the dead are often described by courts as corollaries to a next-of-kin’s rights of burial. With the right comes the duty, and neither can exist independently of the other. These duties, most importantly to properly bury the body and not desecrate the corpse, fall to the next-of-kin, including a child, grandparent, or parent of the decedent, or a surviving spouse. The duty was established out of common law. Initially, some courts concluded that while there may be no legal duty to bury a corpse, “there may be a moral duty.” Interpretation of this moral duty lead to the creation of the legal duty “of him under whose roof his body lies, to carry it, decently covered, to the place of burial.” The rule as to who would be responsible for executing this duty was rather simple at first: “The husband surviving is bound to bury the corpse of his wife . . . “

As more courts grappled with applying this duty to individuals, firmer and narrower rules had to be established so that individuals could understand what laws bound their actions and required their compliance. The “under whose roof” rule evolved to the point that “[t]his duty . . . may even fall to one unrelated to the decedent,” and has even bound a hotel owner who rented a room for a single night to a decedent. Courts recognized that this “inflexible rule might result in great harshness” especially considering that the owner of the roof was liable for all costs of a proper burial, yet they did not stray from the rule’s origins. Courts have come to recognize that by establishing a legal duty, along with the right to burial, that there has been a sort of quid pro quo. With great power comes great responsibility.

 This story was originally reported at The Mississuaga News.

Michael Norsworthy

Wisconsin to Review Cemetery-Funeral Home Combination Prohibition

The Wisconsin legislature is considering the deregulation of a portion of the funeral services industry. Wisconsin is one of nine states that places limitations on the types of businesses that funeral homes and cemeteries may create.  Currently, the funeral service industry in Wisconsin is limited by Wisconsin Code section 157.067(2), which prohibits cemeteries and funeral home from being combined.  The statute provides that

[n]o cemetery authority may permit a funeral establishment to be located in the cemetery. No cemetery authority may have or permit an employee or agent of the cemetery to have any ownership, operation or other financial interest in a funeral establishment. . . . [N]o cemetery authority or employee or agent of a cemetery may, directly or indirectly, receive or accept any commission, fee, remuneration or benefit of any kind from a funeral establishment or from an owner, employee or agent of a funeral establishment.

The language  of this bill unambiguously prohibits funeral homes from having any business association with cemeteries.  The goal of the decades-old statute is to protect the interests of the state's many family-owned funeral homes.  Presumably, by prohibiting the types of business combinations listed in the statute, the state prevents capital-rich, large corporations from swooping in and integrating funeral homes with cemeteries to take advantage of the potential cost reductions from becoming a one-stop shop for funeral services.  The proposed bill, Wisconsin Assembly Bill 508, effectively removes the prohibitions on these types of combinations.

It should come as no surprise, then, that the proposed bill is vigorously opposed by 400 of the state's funeral directors.  They argue that  these types of "death synergies" could ultimately harm consumers. They claim that eliminating the 80-year-old ban on this type of combination could allow large corporations like Service Corporation International ("SCI") to drive down costs until competition is reduced, and then hike them again, hurting the consumers. In fact, keeping the law as-is would actually force SCI to sell some of it's Wisconson combination holdings, which are currently operating inviolation of the law, or face a daily fine. 

On it's face, the bill does seem to pose some danger to small funeral homes. However, the truth of the matter may not be so black and white.  A study by Professors David E. Harrington and Jaret Treber ("the Study") has found that the elimination of anticombination laws does not necessarily lead to the elimination of family-owned funeral homes. Since the funeral service industry is intensely personal, noncombination, family-owned funeral homes are still valued for their ability to cater to the needs of the communities around them.

Additionally, the influx of large corporations does not necessarily create the monopoly-like situations the funeral directors of Wisconsin are scared of. The corporations that most typically own cemetery/funeral home combinations, such as SCI and Stewart Enterprises, compete against each other in addition to competing against smaller players in the industy.  This competition can be advantageous to the consumer.  As noted in the Study, the cost savings of allowing consumers access to combination services can be significant, sometimes up to $880 per funeral.

Ultimately, it seems that the resolution of this bill will be settled along political lines. Deregulation is typically favored by those legislators who place a heavy emphasis on free markets. Meanwhile, other legislators will feel pressure from their funeral home-owning constituents who want their interests protected from the influx of large corporations into their market space.  However, it doesn't seem likely that this dispute will be settled any time soon. Similar attempts have been made in the past, and have failed each time.

Lee Denton

The Dead are Placed in the Hands of the Living

The morgue: it serves an important purpose but it is not something that most people think about or care to know about.  The main function of morgues across the United States is to take the bodies of people who have died unnatural deaths and perform an autopsy on the body in order to determine the cause of death. In the normal routine of business, after the coroner has performed the required tests the body is then released to the family who arranges the funeral.

But what happens if the family can't pay the costs to bury their loved one? What if the family refuses to take the body? What if there is not family to be found? What happens if the body cannot be identified?  What then does a morgue do with those bodies?

Those bodies lay unburied and unclaimed for up to several years


A prime example of a morgue that deals with unclaimed bodies is the Wayne County Medical Examiner's Office in Detroit, MI.  They Wayne County Office is one of the busiest morgues in the country conducting over 2,500 autopsies a year.  In 2009 and 2010 the morgue had over 100 unclaimed bodies stored in their facilities.  The morgue even purchased a temporary trailer which was able to hold 30 bodies due to the increase in unclaimed bodies.

There are several reasons for why a body might be unclaimed.  First, the family may not be able to afford a burial or cremation.  A cremation may cost between $425-$475.  A family may come and sign off the body but due to tight finances the family simply cannot take the body.  In the past government programs may have helped these families with the costs however, due to recent budgetary cuts, those programs are cut or no longer available.  Medical Examiner Dr. Carl Schmidt comments, “There is destitution. but when you’re so destitute that nobody has claimed you, that’s a whole different level of being destitute."

Second, the family may not wish to claim the body. One father came into the morgue to identify his son.  But when asked to take the body the father responded, “I didn’t like him when he was alive, why would I help him now.”  

Third, there may be no family to claim the body.  Every year counties publish lists of bodies that have yet to be claimed by any kin.

The Wayne County Office and other morgues around the country have very little law guiding them as to how to deal with this issue.  The Wayne County Office cremated some of the bodies after lawyers did some research and found that the Wayne County Office was legally able to cremate certain bodies. Other counties, such as Cook County in Illinois are working to allow cremation of unclaimed bodies.  However, the morgue is unable to legally cremate their unclaimed bodies until a revision of policies have been instituted.

Without any defining law to guide the morgues around the country regarding unclaimed or unknown bodies, those who are permanently resting may continue to lie in a freezer temporarily resting. 

 Lexy McKay

Official Recognition Sought for Sacred Slave Burial Ground at Drake Park in NYC

Students and teachers at P.S. 48, also known as Joseph R. Drake Elementary School, came across a startling surprise as they began investigating a single black and white photo of overgrown landscape from 1910. The mysterious photo labeled "Slave burying ground - Hunts Point Road," led the group to discover that "Hunts Point Road" once ran along what is now known as the Joseph R. Drake Park in Bronx, New York. As a once well-known signpost within the area in the 18th Century, "Old Hunts Point Road" became the burial ground of various colonial wars and continental soldiers, including members within the prominent families of Hunt, Leggett, and Willett of West Farm, Westchester County, N.Y. Specifically, in the late 1700s, Thomas Hunt (for whom the current neighborhood is named after) acquired the land and built his home on the property. Historical records seem to indicate that the slaves of early residents, such as Hunt were interred in a small enclosure directly opposite the Hunt burial site. This evidence seems to make sense given the fact that most enslaved Africans were not allowed to me buried in the consecrated ground containing the remains of the families that owned them. 

Photo Credit: Lisa W. Foderaro for the New York Times (January 25, 2014)

It is argued that in order to make room for Drake Park, the City eventually demolished the small enclosure, which interred the sacred remains of the slaves. However, there appears to be tombstone remnants on the property marking the remains of early settlers such as the Leggett and Hunt family members. It is speculated that the property even includes the remains of the celebrated author and poet, Joseph R. Drake. Through the Hunts Point Slave Burial Ground Project ("HPSBGP"), the students of P.S. 48 have attempted to commemorate the lives of the slaves by advocating for preservation and official recognition of the site within the City. This issue becomes whether the site will be able to obtain such official recognition. As stated by State Senator Jeffrey D. Klein, it is clear that "[t]he lives of the men, women and children who rest in peace here are part of the history of not only the Hunts Point community, but of New York at large.” Undisputably, evidence from ground penetrating radar analysis supports the conclusion that the site contains human remains within the "small enclosure"  by establishing that "anthropogenic features, suggestive of skeletal remains [lies] six-feet beneath the parkland."


Photo Credit: Hunts Point Slave Burying Ground Commemoration Project (2013).


Photo Credit: Hunts Point Slave Burying Ground Commemoration Project (September 23, 2013)

In response to the campaign led by HPSBGP, the NY State Office of Parks, Recreation, and Historic Preservation revealed in a letter that Drake Park's location permits limited visitorship. Additionally, the letter explained that a precise location of the cemetery could not be ascertained and the office did not have any evidence that when the park was acquired in 1909 remnants of a burial ground survived. It is clear from the evidence revealed through HPSBGP that skeletal remains lie within the ground of the Park. However, the office further stated that the property would be placed on a "watch list of sites of archaeological sensitivity" and the information provided by P.S. 48 would be carefully reviewed. It appears that the Parks and Recreation Office is willing to work cooperatively with the P.S. 48 group in order to honor and promote the history of the site. While forgotten for so many years, it finally appears as though the remnants of the slave individuals within the site may finally receive this long-deserved official recognition from the State of New York. 

Ashley White 

Farmer Buys Cemetery For One Purpose, Possibly Achieves the Opposite

A farmer from Lake County, Indiana recently purchased the Fuller Cemetery from the county to keep it out of the hands of land developers. The 200-year-old cemetery was mistakenly listed in the county’s database as having being delinquent with the payment of taxes, and was placed up for auction. The farmer, who farms the land on all sides of the cemetery, saw the cemetery listed for sale and purchased the cemetery with the hopes of keeping it out of the hands of land developers. His fear was “someone using the cemetery right of way as a public road to start (a subdivision) in the future.”

Under William C. Haak Trust v. Willusz, 949 N.E.2d 833, an easement of necessity can arise in Indiana if a piece of land is parceled out and sold, leaving one parcel without access to a public road. One claiming an easement of necessity must prove 1) unity of title at the time of severance, and 2) necessity of the easement. Here, the farmer may have unintentionally created a pathway for future owners to claim an easement of necessity. Prior to the farmer purchasing the cemetery, there was no unity of title between his farm area and the cemetery. Anyone attempting to establish an easement by necessity would have been unable to do so. However, since the farmer purchased the title to the cemetery, he created a unified title between his farm land and the cemetery via the doctrine of merger. Finally, when he parceled out the cemetery and transferred ownership back to the West Creek Township, he inadvertently created the first element needed to prove an easement by necessity.

Luckily for the farmer, there is no information that the West Creek Township is seeking to sell the Fuller Cemetery to a developer. Hopefully West Creek will hold onto this cemetery  and keep the title out of the hands of developers. This is a classic example of why parties should consult with a lawyer before they try to fix a problem themselves, as actions that appear to be a reasonable solution to a problem can sometimes create a problem. 

James Harrell

Michigan Regulators: funeral home suspended for mishandling prepaid funeral funds, operating without license

Michigan regulators suspended the license of Savage Funeral Home in Standish, Michigan on Jan. 17, 2014. The state alleges the funeral home, which was operated by Richard E. Weishuhn, violated several provisions of state law including practicing mortuary science without a license, operating without a licensed manager, and mishandling $600,000 in funds designated for prepaid funerals and burials. The state also ordered the funeral home manager to cease and desist all activity requiring a mortuary science license including operating the Savage Funeral Home.

Under state law, individuals maintaining a funeral home and representing themselves in connection with a funeral home must be licensed. Additionally, Michigan’s Prepaid Funeral and Cemetery Sales Act  requires prepaid funds be placed in an escrow account within 30 days of the funeral being purchased. Funeral homes may only receive the funds once funeral services have actually been rendered. In fact, under state law, consumers have the right to receive a full refund for prepaid funerals, plus accrued interest, at any time. Conversion of prepaid funeral funds is a felony, punishable by up to five years in prison.

These laws provide some protection for consumers purchasing funeral services. However, those protections may be meaningless if the funeral home chooses to disregard them and operates outside the bounds of the law. Although there is limited information available about this case, one wonders how a funeral home could continue to operate unlicensed for so long without regulators catching on. The home sold 162 prepaid funeral contracts while unregistered, and undoubtedly performed an even larger number of funerals. The Arenac County Independent covered this story  and received comments from several consumers who have been told that their prepaid funds are missing. As the story unfolds, it will be interesting to see whether any of the mishandled funds will be recoverable. As a local, licensed funeral director notes, families should always issue funds directly to the trust or insurance company that will be holding the pre-arranged funds, rather than the funeral home that sold the arrangement. Consumers should also make sure the funeral home has a valid state license.

Ryan Arens 

Secrets of the Dead: To Tell or Not to Tell?

Throughout the United States, over 300 million biospecimens—samples of organs, tissue, blood, and cells—are keeping countless secrets.  They are housed in a myriad of biobanks and “contain genetic material that can be analyzed to identify gene variations associated with human diseases.”   In other words, biospecimens contain genetic information, which is per se personal—it reveals not only what genes we have, but who we are and why.  It is therefore intensely private information subject to a physician’s duty of confidentiality.  

This duty of confidentiality means that a physician may not reveal confidential information without the patient’s express consent (subject to certain exceptions).  After a patient's death, this duty of confidentiality continues.  According to the American Medical Association, "[a]ll medically related confidences . . . and information contained within a deceased patient’s medical record . . . should be kept confidential to the greatest possible degree."  In other words, physicians--and, by extension, researchers--owe a duty of confidentiality to the dead.

But do they owe any duty to the surviving biologic relatives thereof?  

Imagine that among those 300 million biospecimens is a blood sample of Mrs. X, who provided the sample before her death.  Today, a researcher discovered that Mrs. X carried a mutation of the breast cancer 1, early onset gene, or BRCA 1.  Women who carry this BRCA 1 mutation face a risk of developing breast cancer that is approximately five times greater than the national average.  Thus, Mrs. X's children are at risk of inheriting this mutation which, if inherited, significantly increases their chances of developing an illness which is serious and potentially fatal if undetected.  Yet, a woman is not generally tested for a BRCA mutation unless she “carries a red flag” such as a family history of breast cancer.  Thus, if Mrs. X’s children do not know that Mrs. X carried the mutation, their red flag was never raised and, accordingly, they will not be tested for the mutation and may not take sufficient detection measures.  The researcher has no direct relationship with the children, but has information that could save their lives; yet, the researcher still owes a duty of confidentiality to Mrs. X even after her death.  

If the researcher does owe a duty to the surviving biologic relatives, does the duty to warn the living outweigh the duty of confidentiality to the dead?  If the researcher does not owe a duty to warn the living, could disclosure be legally and ethically justifiable nonetheless?  

According to the American Medical Association, disclosure of confidential information is appropriate "for research and educational purposes" if "confidentiality is maintained to the greatest possible degree by removing any individual identifiers."  Thus, disclosing the dead's anonymized confidential information may be justified by certain benefits.  Is warning of a potential mutation in an effort to mitigate the serious harms caused thereby beneficial enough to justify disclosure?  If so, perhaps our researcher could inform Mrs. X’s children that some direct relative—without identifying Mrs. X—carried the BRCA 1 mutation, and recommend that they take precautionary measures such as genetic screening. 

The law regarding traditional confidentiality is relatively settled.  But with continuously progressing medical and research developments, questions of law regarding confidentiality and genetic information remain elusive.  Medical research has identified 20,500 human genes; now, the law must identify how that information should be treated not only during life, but also after death.

This story was originally reported in Science

Catherine M. Hammack

Archaeology vs. Grave Robbing, Where is the Line Drawn?


Both archaeology and grave robbing can involve the act of uncovering a grave or tomb with the intent of removing the artifacts, corpses, or personal effects inside them, but only one of them is considered illegal in the United States. The general distinction between the two acts is that archaeologists intend to use the artifacts they uncover to learn about human activity in the past, while grave robbers are motivated by selling their findings for profit [under very few circumstances can an archaeologist actually keep what they find]. Regardless of one's intent, both involve taking buried items and remains from the deceased, who were likely buried with idea that they would not be uncovered later in the future, and both also receive a valuable benefit from doing so. Considering the similarities of the two acts, what factors must be present before digging up a grave or tomb is considered legal archaeology? 

The defining line between grave robbing and archaeology is whether or not the gravesite has “historical significance” and the actor has been given state or federal permission to enter. Federal laws define historical significance to be anything located on federal property that is over 100 years old and are material remains of past human life or activities; anything that fits this description is property of the federal government. However, items discovered on federal property, which are less than 100 years old, would most likely still be considered federal property because it is “embedded property” that belongs to the owner of the property—the government.

Most states have passed statutes outlawing grave robbing, and then give authority to their state archaeological board to determine proper archaeology guidelines and requirements. Like the federal government, state laws do not allow remains to be uncovered, unless the area is deemed historically significant and an archeological permit is granted (which is typically 100 years as well). Because the law is unclear as to who actually has property rights in buried remains, state boards are very careful with their guidelines regarding the excavation of a gravesite. For example, the North Carolina Archaeology Office recommends that each site should be evaluated on a case-by-case basis where agreements need to be met between all of the parties involved—descendants, landowners, agencies and archaeologists. Archaeology may be a regulated form of "grave robbing", but careful federal and state oversight ensure that the remains are handled with proper care and that the discoveries made further an important educational and historical goal to learn about the lives of the past. 

Clay Armentrout