Unmarked Cemeteries and Gravesites in ROW Projects

Of honour'd bones indeed. What should be said?

All’s Well That Ends Well (2.3.1042).

Valar morghulis. Valar dohaeris.

A Song of Ice and Fire, Book 3, Chapter 74, Arya XIII.

Despite the best-laid plans of right-of-way professionals, previously forgotten cemeteries or graveyards are sometimes discovered during the course of right-of-way projects. The words “cemetery” and “graveyard” bring with them images of ordered rows of graves with headstones or markers. There is no guarantee of such organization depending on the particular remains. They could be Native American graves or remains from the Civil War. It could be a potter’s field or a forgotten family plot. The landowner may have no idea that the remains even exist. They could be scattered over any area in no discernible order. There may be no information for next of kin. Regardless, when the remains are discovered in the course of construction, intense time pressure from the construction schedule tends to turn what could be an interesting mystery into a complicated problem. Despite any such time pressure, when dealing with human remains, extremely careful attention to the applicable law is warranted lest criminal penalties result or the court or the public suspect any skullduggery.[1]

Any improper interaction with human remains is likely to be a crime. For example, under Va. Code § 18.2-126, “Violation of sepulture; defilement of a dead human body; penalties,” if one “unlawfully disinters or displaces a dead human body, or any part of a dead human body which has been deposited in any vault, grave or other burial place, he is guilty of a Class 4 felony,” and if one “willfully and intentionally physically defiles a dead human body he is guilty of a Class 6 felony. For the purposes of this section, the term ‘defile’ shall not include … any other lawful purpose.” Va. Code § 18.2-126. Note that this applies to all human burials, even prehistoric burials. The prudent approach is to presume that any movement of human remains is unlawful, unless the intended course of action with regard to the remains is specifically authorized by law.

The first thing to do upon discovery of any human remains is generally to stop any conduct which would disturb the remains, leave the remains in place, and report the find to the local or state police, and, in Virginia, the Virginia Department of Historic Resources (“DHR”).

If law enforcement determines that criminal conduct is not involved, one should consider with the assistance of experienced counsel i) one’s legal authority to interact with the remains, if any, ii) what governmental approvals, permits, or court orders will be required, and iii) the identity of any interested parties whose agreement is necessary or preferred, such as the next of kin and potentially the owners of the land in which the remains are interred. Relocation of an unmarked cemetery or gravesite will involve the Department of Historic Resources, a licensed funeral home, and often one or more archaeologists, in addition to your own personnel and counsel.  

If DHR determines that the site has historic significance, the remains will need to be disinterred by licensed archaeologists. Having archaeologists perform the disinterment will require a DHR permit. You may still want to consider having archaeologists do the disinterment even if DHR determines that the site does not have historic significance, particularly if the remains are not in caskets or other containers. Depending on various factors including age, soil type, and the material of the original container, remains may have been shattered or the containers may have decayed to nothing. Some funeral homes may only be familiar with dealing with vaults and caskets, and archaeologists may be better suited to dealing with certain remains. DHR will likely still require a permit for archaeologists to perform the disinterment work even if the remains do not have historic significance.

The specific course for resolution of any cemetery relocation is fact specific, depending on the age, type, condition, and location of the remains, and the particular project and project entity. However, regardless of the project or the particulars of the remains, compassion and respect are the by-words in this area. Whether the interred was a known person with loved ones that you will have to interact with, or someone so long dead that everyone they knew or were related to has long since turned to dust, the perceived obstacle to your project was someone’s loved one once. Treat them as you would want your loved ones treated, and not just because of the legal requirements.

Pender & Coward attorney Ross Greene assists clients with a wide range of eminent domain and right of way matters.  Please contact Ross with questions at (757) 502-7333 or rgreene@yimeiwedding.com.                     

[1] The word “skullduggery” was first documented in the mid-19th century spelled as “scull-duggery,” and although its complete etymology is unclear, etymologists do not generally believe it has anything to do with skulls. At least according to Webster’s Dictionary, it is possibly derived from the Scottish “sculduddery,” a term once used to refer to gross or lewd conduct.