A lawsuit filed by Mendocino County Supervisor Dan Hamburg over the interment of his late wife on their Ukiah-area homestead challenges the constitutionality of regulations that stand in the way of home burials.
It also questions what harm exists in the centuries-old practice of burying rural residents on the land — a tradition that works for dogs, cats, horses and other livestock, and has for humans, his lawyer contends, for time immemorial.
Home burial is permitted in nearly every state except California and Washington, where certain requirements are met, such as adequate parcel size, experts say.
While California law gives each individual the right to direct the disposition of his or her remains and requires survivors to carry out such instructions faithfully, without alteration "in any material way," the same Health and Safety Code section permits exceptions "as may be required by law."
That phrase, Hamburg's lawsuit states, "creates a fundamental road block to any private property burial by imposing an overbroad scheme of statutes and policies for which no compelling governmental interest exists or has been asserted."
The suit further states that California's prohibition of burials outside established cemeteries violates fundamental constitutional rights, including the right to privacy, and requests the court grant a burial permit for Carrie Hamburg after the fact.
"To say that you can't be buried in the way of your choice — that is not harmful to anybody and has occurred since our kind have walked this earth — is unconstitutional," attorney Barry Vogel said in an interview.
State Cemetery and Funeral Bureau personnel said state regulations exist because of issues related to the future of any given parcel - whether it might be subdivided or sold, for example, and undisclosed remains unearthed.
Historical concerns about wrongful deaths, contagions, seismic stability and water contamination contributed to the rise in regulation over time, said Russ Heimerich, a spokesman for the Department of Consumer Affairs, under which the cemetery bureau operates.
"There are some practical considerations, but most are health and safety related," Heimerich said.