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Cemetery and Human Remains Law
Ryan M. Seidemann, RPA Section Chief
Lands & Natural Resources
Louisiana Department of Justice
Adjunct Professor
Law Center
Southern University Doctoral Student
Department of Urban Studies
Death Investigator
West Baton Rouge Parish
Coroner’s Office
Where is the relevant law?
• Title 8
– Establishment and powers of the Louisiana Cemetery Board
– General law of cemeteries
– Louisiana Unmarked Human Burial Sites Preservation Act
• Title 13 (coroners)
• Title 14 (desecration)
• Title 17 (anatomical donations)
• Title 25
– Louisiana Historic Cemetery Preservation Act
– Louisiana Human Remains Trafficking and Control Act
• Title 37 (funeral directors and cremation)
Recent Legislation (2014-present)
• 7 primary acts in the past three years
– 2014 – Acts 88 and 819
– 2015 – Act 270
– 2016 – Acts 413, 531, 628, and 647
• 1 bill of significance
– 2016 – SB 166
Act 88 of 2014
• This Act contained minor technical
amendments to the Louisiana Cemetery Act
(La. R.S. 8:1, et seq.) requested by the
Louisiana Cemetery Board and supported
by the Louisiana Cemetery Association.
Act 819 of 2014
• Amendment to La. R.S. 8:655 to conform to federal
law.
• La. R.S. 8:655 sets forth who has the authority to
make decisions regarding final disposition of human
remains.
• In 1954, Congress authorized military service
members to specifically designate such persons. This
law likely preempted Louisiana law.
• Act 819 amended Louisiana law to incorporate the
federal authority.
Sonnier v. Catholic Foundation of the Diocese of
Lafayette, 15-1051 (La.App. 3 Cir. 3/2/16), 215 So.3d 804
• Does a military “Person Authorized to Direct Disposition” (“PADD”) form empower someone to control multiple grave spaces?
– Here, a father was designated as his son’s PADD. The son was interred in a space in a Catholic cemetery in Lafayette, Louisiana. The father wanted to control the surrounding spaces and argued that the PADD gave him authority to do so.
– The grave space of the son was titled in both the father’s and mother’s names—the parents were divorced.
– The mother acquired the surrounding spaces by separate purchase.
– The mother, as a co-owner of the son’s grave space and as the owner of the surrounding spaces, was dictating the construction of a tomb thereon for her son and other family members.
• Based upon the PADD, the father sued the Diocese to stop the tomb construction and to acquire control of all the spaces.
• In the alternative, the father sought the exhumation and relocation of the son. – The court examined both federal and state law and determined that the designation of someone as a
PADD confers no special ownership rights in a grave space.
– The court also found that the PADD authorizes the designated individual to control the disposition of the remains, but that the law giving rise to the PADD “is silent on the right to later disinter remains.”
– The court noted that, while the statute setting forth who can control interment contains a reference to the PADD (Act 819 of 2014), the statute setting forth who can control moving remains does not.
– For this reason, the court found that the PADD does not give someone the authority to disinter and move remains and that that is a matter of state law.
Sonnier v. Catholic Foundation of the Diocese of
Lafayette, 2016-0839 (La. 10/28/16), 202 So. 3d 992
• The Louisiana Supreme Court granted writs in part and denied
in part.
– The Court upheld the notion that simply being a PADD does not
confer any superior ownership rights in interment spaces.
– Per curiam decision remanded for an examination of whether the
father has authority under La. R.S. 8:659 to disinter and move his
son’s remains.
• Chief Justice Johnson, concurring, suggested that such authority does exist
and that the Louisiana law of disinterment is preempted by federal law.
• Justice Weimer dissented, asserting that there is no such conflict and that
“the courts…ought not lightly presume anyone has been given the authority
to disturb their final rest.”
– On remand, the Louisiana Cemetery Board has intervened to be
heard on the proper interpretation of La. R.S. 8:659 and its
interaction with federal law.
Act 270 of 2015
• This law ensures a streamlined legal process for the
disposition of certain human remains by coroners.
• Only occurs upon the refusal of those authorized by La.
R.S. 8:655, which sets forth who has the right to control
the disposition of remains, to provide for disposition.
• Now a coroner can designate such a person to control
those remains pursuant to La. R.S. 9:1551 and direct
their disposition.
• Provides similar authority for abandoned remains held
by a funeral home or coroner.
Act 143 of 2016
• Contains technical amendments to Title 8
and 37.
• Changes some burdens for a decedent’s
directing his or her disposition after death.
• Changes some authority for the
transportation of dead bodies.
• Limits liability for cemeteries and funeral
homes for relying on certain documentation
as evidence of the decedent’s wishes.
Practical Problems of Abandoned Cemeteries
• Authority to operate cemeteries under Louisiana law has
historically been tied to land ownership.
– If you own the land or have the permission of the landowner, you
can be licensed to operate the cemetery.
– When the landowners have disappeared long ago and locals
continue to operate the cemetery, they are technically in violation
of the law.
– Only becomes a problem when multiple people try to operate such
cemeteries and then get into turf battles, inappropriately charge
consumers, and fail to keep records (all very common).
• Some good Samaritans are willing to operate such
cemeteries for the benefit of the community, but need
proper authority to exclude unscrupulous operators, etc.
Holly Oak Cemetery, Pineville
• Owners and descendants could
not be found.
– Last property transaction occurred
in 1899.
– Genealogical work was not able to
identify whereabouts of signatories
of 1899 document.
• There was a community group
forming that was interested in
taking on operation of the
cemetery, but the State had no
authority to permit such actions.
Act 413 of 2016 • In an effort to create a pathway for entities such as the group that
wanted to operate Holly Oak Cemetery to do so lawfully, a new
licensing system through the Louisiana Cemetery Board was
created.
– Licenses granted under this law can only be held by nonprofits comprised of
officers with some familial link to the cemetery.
– All profits from operating the cemetery must be used for cemetery
maintenance.
– Also authorizes use of prison labor to abate public health and safety risks of
abandoned cemeteries.
– Licensees can:
• Sell spaces, openings, and closings.
• Make and enforce cemetery rules.
• Clean and maintain the cemetery.
• Collect donations for cemetery upkeep.
– Licensees cannot:
• Sell merchandise preneed.
• Destroy or remove original markers.
Human Remains
• Both federal and State law say the following: – It is unlawful to buy,
sell, barter, exchange, give, receive, possess, display, discard, or destroy human skeletal remains from an unmarked burial site or burial artifacts.
Image courtesy eBay®
How bad is the problem?
Image courtesy National Geographic based on data reported by Halling and Seidemann (JFS 2016)
Why do these remains need safeguarding?
• Pilfered remains are appearing for sale on eBay and other platforms.
• Looted remains are also simply being collected as personal curiosities by the public.
• Some remains of questionable provenience appear to derive from medico-legal contexts.
French Quarter Skull Sales
Ender Darling a/k/a “Boneghazi”
• Was pilfering human remains from
Holt Cemetery for use in “spell
work” and for sale on Facebook.
• Spent over a month in OPP
awaiting a hearing.
• Pled to 5 years for burglary in a
cemetery.
Cemetery Dirt
• Sale of “graveyard dirt”
– Allegedly derived from a
New Orleans cemetery
– Desecration?
– Possible violation of
Unmarked Burials Act?
• Are there bone fragments in
the dirt?
Act 513 of 2016
• Louisiana Human Remains Trafficking and Control Act
of 2016
– Covers (almost) everything that the cemetery laws do
not.
– Illegal to possess human remains outside of
educational/research setting.
– Makes trafficking a felony.
– Contains amnesty provisions.
• Places the Attorney General’s Office, as a statewide law
enforcement agency with specialized experience in such
matters, in charge of protecting all exposed human
remains in Louisiana.
Act 628 of 2016
• Authorizes coroners to donate human tissue
of 28 grams or less “to an individual who is
affiliated with an established search and
rescue dog organization for the purpose of
training a dog to search for human
remains.”
• There are no limitations in this law
regarding the wishes of the deceased, the
deceased’s family, or anything else.
Act 647 of 2016
• Arose from desire of a south Louisiana landowner to
grant access to a cemetery on his property, but not to
be held liable is someone is injured while on the
property.
– Limits liability for landowners in such situations.
– Likely also expands the historic ability of only family
members of the deceased to enter private property to
access a cemetery from actual family to simply
“visitors.”
– Only applies in St. Martin Parish.
SB 166 of 2016
• Louisiana law currently only authorizes the interment of human
remains in cemeteries.
– Does this mean that pet cemeteries are illegal?
• No. They are just not regulated and it is illegal to inter pets in cemeteries and
humans in pet cemeteries.
• This bill sought to authorize cemeteries to voluntarily establish new
sections of their cemeteries where pets could be buried with humans.
– Would have authorized whole body interment.
– Voluntary only.
– Would fall under the regulatory jurisdiction of the LCB.
– Following a national trend of selling funeral services for pets.
– Although it did not pass in 2016, it will likely come back.
– Please interact with the LCB with any new versions of this concept, as
that entity will have to regulate the practice.
Regulatory Changes • Complete overhaul of cemetery regulations in 2013.
– First such whole rewrite since 1974.
– First major amendments to regs since 1980.
– Affected all rules, but focused primarily on the regulation of
trust funds and the Board’s ability to levy fines and recoup
misappropriated trust funds.
– Since the completion of these changes, the Board and the
Attorney General have succeeded in obtaining the return of in
excess of $1,675,088.53 misappropriated trust funds to
benefit consumers.
• Major regulatory update in 2017.
– Incorporated all legislative changes between 2013 and 2017,
as well as some lessons learned from adjudicatory hearings.
Recent Attorney General Opinions • 13-0002A – Funeral homes do not have the authority to direct the
disposition of human remains in the manner of coroners and the law does
not authorize the return of such remains to coroners’ offices when those
with the authority to direct disposition refuse to cooperate.
– This has likely been modified by Act 270 of 2015.
• 14-0101 – technical issues related to activities within an existing
cemetery that are nonconforming and are technical violations of the
dedication provisions of Title 8.
• 14-0154 – are the costs of transporting human remains for an autopsy
necessary and unavoidable expenses of a coroner’s office such that they
must be paid by political subdivisions or are they taxable against the
families? Yes, they are to be borne by political subdivisions.
• 17-0015 – does Act 513 of 2016 prohibit families from possessing the
cremated remains of loved ones? No.
• 17-0089 – can funeral homes display sample casket corners instead of
full caskets? No.
The Biggest Challenge: Disasters
Hurricane Gustav
• Localized problems
• Damage was mostly wind-related
• Cemeteries impacted by falling trees.
Hurricane Isaac – 2012
Hurricane Isaac • Major impacts to 3
cemeteries in lower
Plaquemines Parish
– English Turn Cemetery
– Braithwaite Cemetery
– Promise Land Cemetery
The Great Flood of 2016 – A Game Changer
• Unprecedented rains
caused flooding in
areas generally
inexperienced with
such problems.
• 19 parishes were
designated as
disaster areas
Early Reports of Cemetery Impacts
• The first reports
came from the
media.
• After that broke,
panicked family
members began
calling
randomly.
The New Problem – We Had No
Idea Where to Look
• Although the news reports provided some
indication of specific damaged sites, the
impacted area was so large, we had no way
of knowing where to focus efforts.
• The declared disaster area was 13,139 mi2
2016 Floods • Statistics:
– 19 parishes
– 74 impacted cemeteries
– 801 damaged or disturbed graves
– Response team of 4 people
Known Cemetery Impacts – The Numbers
Grew by the Day
What we found: Plainview Cemetery,
Livingston Parish
What we found: Felder Cemetery,
Livingston Parish
What we found: Evening Star
Cemetery, East Baton Rouge Parish
What we found: St. Mathew Cemetery,
Evangeline Parish
Recovery Efforts
Recovery Efforts
Who handles these things?
• Presently, it depends on factors that are not
standardized and seem to change from event to
event.
• Seems to depend on size of disaster to a degree.
Beyond that, the reasons that a federal response
doesn’t exist is baffling.
Recent Response Efforts • Katrina/Rita
– Multi-parish impacts
– The cemetery response was federalized and handled by the Disaster
Mortuary Operational Response Team (DMORT).
• Gustav
– Single parish (West Baton Rouge); one known cemetery impacted
– No DMORT activation. Response handled by parish and LDOJ
• Isaac
– Single parish (Plaquemines); three impacted cemeteries
– No DMORT activation. Handled by ad hoc State/local response group.
• Harvey
– Single parish (Calcasieu); one known cemetery impacted
– No DMORT activation. Response handled by parish with some
logistical support from LDOJ.
Recent Response Efforts
• 2016 floods
– March floods
• Single parish (Calcasieu)
• Five impacted cemeteries
• Handled by parish with some logistical support provided by
LDOJ
– August floods
• 19 parishes
• 74 impacted cemeteries
• No DMORT activation. Handled by ad hoc LDOJ/LDH
response group. Most parishes provided minimal assistance
(exceptions: Ascension, St. Helena).
New Problems Identified That Need
Legislative Attention • Who is in charge?
– There needs to be a statutory chain of command established for cemetery
response when DMORT is not activated.
– Current law is unclear:
• Coroners? No.
• GOHSEP/OHSEP? Probably not.
• Louisiana Cemetery Board? No.
• LDOJ? Maybe, but only under some circumstances.
• LDH? Not really. Only as part of ESF 8.
– A cemetery response task force needs to be established under Title 29
that would be a group of scientific/legal/death care specialists who
operate under GOHSEP in disasters.
• Has authority to direct response, liaise with feds and locals, bring in support from
State and local sources.
New Problems Identified That Need
Legislative Attention • Funding problems
– Not necessarily something that needs to impact the State budget.
– Individual Assistance (IA) v. Public Assistance (PA) problems
• In most cases, FEMA controls the funding in response efforts, which dictates how
the response operates.
– Harvey response
• PA only thing authorized for Louisiana
– Not full reimbursement
• Because most cemeteries are located on private property, there is a conflict between
the federal reimbursements and La. Const. art. VII, sec. 14(A).
• This only allows the government responders to collect the remains and get them back
to the gates of the cemetery.
• FEMA will not pay for work on private property and La. Const. art. VII, sec. 14(A)
prohibits the expenditure of public funds to do reinterment work in the cemetery.
• In Calcasieu, volunteers got the remains from the gates to the grave spaces.
– This is a great result, but is unlikely in most events.
This is the more likely result of PA-
only funding
New Problems Identified That Need
Legislative Attention
• Funding problems in August 2016 floods
– IA was approved, but FEMA will only pay individuals, not
governments, corporations, or churches/nonprofits.
• This meant that we had to find relatives and good Samaritans (in
many cases, random members of the public) to speak for the dead and
to claim money from the feds on their behalf.
• Many descendants were unlocatable.
• This raised liability concerns for volunteers making reinterment
decisions.
• To ensure protection for volunteers, complex lawsuits had to be filed
for many of the cemeteries.
– Legislation is needed to limit the liability for such volunteers
in the future.
Unresolvable Problems Related to
Disasters • Things to keep in mind:
– Many people believe that disaster response means that they get a
gleaming new cemetery when the response is done.
• FEMA only funds restoration to pre-event condition, not to “pristine”
condition.
• Thus, if the cemetery was in poor shape before the disaster, it will likely be
better, but not like Arlington.
– Cultural and religious practices make the response more difficult.
• Louisiana is known for its “mushroom” burials (concrete grave liners/vaults)
only partially interred.
• This practice, while sometimes related to economics, is often more related to
cultural tradition or religious preferences.
• Mandating full in-ground burial will be unpopular and may result in
constitutional challenges. Any such mandates need to come from the
cemetery owners.
Recent Experiences from Existing Laws
• Receivership problems (Act 541 of 2008)
– Theoretically great. Allows government to take control of ailing
cemeteries and rehab them.
– Practically – cannot find willing/qualified receivers (cost issues,
etc.)
• Maintenance of abandoned cemeteries (Act 413 of 2016)
– There is a great need to find a means to extend the ability to use
prison labor or public works personnel in this new law from
licensed abandoned cemeteries to all abandoned cemeteries.
– Public health threat is not coming from the remains, but is more
akin to code violations. Can La. Const. art. VII, sec. 14(A) be
avoided on these grounds?
Questions
Please call on us when cemetery or human
remains questions arise in legislative drafting.
Ryan M. Seidemann
(225) 326-6000
