What Is the Legality of Home Burials In California?

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Barry Vogel is an attorney who had his own practice in Ukiah, California, for over 40 years. He mainly worked to protect clients’ personal rights and social justice rights. He’s worked on cases regarding the constitutional right to be buried on your own private property, a.k.a. home burials. Vogel also hosts a radio program called Radio Curious, which he’s done since 1991.

Editor’s note: This interview has been edited for length and clarity. 

Lucas Morgan: Hello Barry! Thanks for taking the time out to speak with me today. Why did you decide to become an attorney?

Barry Vogel: Legal issues were common topics in my household growing up. My dad was a lawyer and my mother was a psychologist. So we talked about law and psychology a lot at the dinner table, more so than sports or the weather. I learned at a young age that law is the best tool for social change. So that is what prompted me to go to law school.  

Lucas: For how long were you an attorney?

Barry: I graduated from college in 1964 and was in the Peace Corps for two years in Peru. I went to law school in 1966 and graduated in 1969. At that point, the National Legal Services Foundation that was funded by Congress had fellowships for people who wanted to be community activists/organizers.

I thought it was a long shot, but I applied and got that fellowship and got a job in Rhode Island. I spent three years there from 1970 to 1973 and settled in Ukiah, California where I’ve been ever since. I ran my own law practice except for two years between 1999 and 2001 until June of last year (2018). My license is still active.

Lucas: What is the legality of home burials in the state of California?

Barry: It’s not nearly as cut and dry as it should be. The mortuary industry is the one that tends to control what’s going on in terms of home burials in California. In three states (California, Washington and Indiana) it is a criminal offense to bury someone outside of a cemetery. With that said, there are two code sections in California law that control home burial practice, but they also contradict each other.

Health Code section 7054 reads that it is a misdemeanor to bury someone outside of a cemetery. This is the section that the mortuary industry and Clerk of Vital Statistics refer to if they issue a legal refusal to bury somebody on private property.

The legality of home burials on private rural
property in California is not entirely clear
Credit: aglandloans.com

And then there is Health & Safety Code section 103055 that reads (in part):

“If the certificate of death is properly executed and complete, the local registrar of births and deaths shall issue a permit for disposition that, in all cases, shall specify any one of the following:

1. The name of the cemetery where the remains shall be interred;

2. Burial at sea as provided in Section 7117;

3. The address or description of the place where remains shall be buried or scattered;”

Subsection three here is in direct contradiction to the interpretation that remains must be buried in a cemetery. So it is not as clear of an issue as it should be.

Lucas: Wow, those do seem to be quite contradictory. How many home burial cases have you been a part of?

Barry: I’ve been involved with two home burial cases, but I am very interested in it as a topic in general. The first case regarded Carrie Hamburg in 2013.

Lucas: Could you describe the Carrie Hamburg petition/case?

Barry: About six to eight weeks before she died, Carrie made it very clear in meetings with me (I had also known her for over 30 years) and had written in a legal declaration stating that she wanted to be buried on her rural private property and why. She was buried on the family’s 46-acre rural property. However Mendocino County originally did not issue a burial permit, so the law was technically violated.

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So we had to get the courts involved. The case/lawsuit was argued substantially in writing. It was the first one that began to shift the paradigm regarding rural home burials in California. The lawyers from Mendocino County ultimately said they would not object to the issuance of a burial permit on the family’s land as long as Dan Hamburg (her husband) waived his right to attorney’s fees.

Dan agreed to waive that right. I applied for an order for a judge to sign, and we were in and out of court in less than five minutes, even though we didn’t actually go into court until six weeks after we had filed the petition. So even though the original permit was not issued, and there was technically a violation, we were able to receive the legal permission needed for her to be buried on the family’s rural property.

Lucas: Are there public health issues that may arise regarding home burials and potential contamination?

Barry: On the Radio Curious website I have posted the court documents from the Carrie Hamburg case. There are declarations from two public health officials in Mendocino County.

In particular, they describe the lack of any public health problem if anyone is buried on rural private property as long as they’re buried at least 100 feet from a water source. So if the body or remains are far enough away from a water source, there’s no public health hazard. One of the doctors wrote, “wild animals dying in watercourses or cattle defecating in watercourses are far more likely to cause infectious disease than whole body burials on rural parcels of property.” So generally there are no public health issues to worry about.

Check back next week for Part Two of our interview with Barry Vogel when we continue our discussion about home burials in California.