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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.

Advocates of more natural burial routinely argue that health risks are overstated or non-existent.

Hamburg's suit includes declarations from two local medical officials stating their beliefs that so long as someone is buried at least three feet deep and at least 100 feet from water courses, there should be no risk of infectious disease.

"Wild animals dying in water courses or cattle defecating in water courses are far more likely to cause infectious disease than would whole body burials on rural parcels of real property," Mendocino County Communicable Disease Officer Charles Evans wrote.

"In my professional opinion," said Marvin Trotter, chief medical officer at Ukiah Valley Medical Center and the former county public health officer, "no public health or infectious disease liability require the whole body burial of deceased Homo sapiens to be limited to a pre-existing cemetery."

Vogel also said he'd found recent precedent for Hamburg's request in two cases in which local judges issued orders authorizing burials on private land in 2001 and 2002.

In seeking a burial permit for Carrie Hamburg, her husband's suit seeks consideration of the earlier cases, one of which authorized the burial of Gualala businessman Jay Baker behind his Ace Hardware Store and the Highway 1 shopping center that still bears his name: Bakertown.

Baker lived in an apartment above the store and buried his beloved dog, Bandit, at the corner of the property, his then-assistant, Kelli Mason, said. A second grave and marker were added after Baker himself died Feb. 28, 2001 at age 70.

"Bakertown, and what it stands for, means more to me than words can express," Baker wrote in a declaration of his wishes. "It has been my life's work. I cannot think of another place I would rather reside for all eternity."

The following year, an attorney for a Boonville couple relied in part on Baker's case in winning approval for her clients to bury their baby girl on their rural 31-acre land. The baby, Oona Miriam Tebbutts, was born with a congenital condition and died at only 5 weeks old.

Her mother, Stephanie Tebbutts, says now that she could not endure "the thought of having our child in some graveyard somewhere. I tell you, we're very fortunate to be able to do this."

She described how it was her young son who began calling the spot "Oona Hill."

"He made it totally natural that you'd bury someone you loved at home and walk past their grave every day and leave a flower or blow a kiss and do something that makes you feel connected," she said.

A major contrast with the Hamburg case is that the prior cases were resolved by court order before the deaths of the individuals at their center.

Carrie Hamburg, who died March 5 from cancer, had long talked of being buried on the 46-acre parcel she and her husband called home for a quarter century, her husband said. But her desire became pronounced in the weeks and days before her death, family members said.

She designated a specific place, and repeatedly asked her son, Kirk Hamburg, to prepare the site. She was eventually buried 5 feet deep in a pine casket, 350 feet from the nearest property line and 312 feet from a water draw that he said rarely carries water and only after significant rain, according to declarations submitted with the suit.

In an amendment to her will the week before she died, Carrie Hamburg expressly outlined her burial wishes, directing family to follow her wishes and confront whatever legal objects arose after the fact.

And legal objections there were, such that Mendocino County Sheriff Tom Allman was obligated to open a formal criminal investigation into whether Carrie Hamburg had been buried illegally, a misdemeanor under state law.

Futher, when the family, though a local mortuary operator, attempted to electronically file an application for a permit to dispose of her remains, it was rejected because the family had not pursued home burial through a costly, cumbersome process needed to obtain a state "certificate of authority," which requires, in part, incorporation, hiring of a licensed funeral manager and provision of a $35,000 endowment for maintenance.

The suit seeks to have the permit issued, along with a declaration protecting the Hamburgs' right in the matter of the burial.

You can reach Staff Writer Mary Callahan at 521-5249 or mary.callahan@pressdemocrat.com.