Cremains commonly spread on public lands, but is it legal?

2007-05-12T23:00:00Z Cremains commonly spread on public lands, but is it legal?Mary Garrigan, Journal staff Rapid City Journal
May 12, 2007 11:00 pm  • 

It never occurred to Nancy Bowman to ask permission before she scattered the cremated ashes of her late husband, Merton, in the Black Hills that he loved so well.

If it had, Rick Hudson, the recreation and special use program manager for the Black Hills National Forest, would have told Bowman the same thing he tells anyone who inquires about using Forest Service land as a final resting place.

"I tell them, no, we don't allow human remains to be scattered on national forest land," Hudson said.

Bowman didn't know about that policy when she, along with family and friends, scattered Mert's ashes beneath a small grove of birch trees on a cold March day back in 1990.

"Mert was a hiker, climber and caver. He just loved the Hills," his widow said.

In more than 30 years with Black Hills National Forest, Hudson can't remember anyone being ticketed or prosecuted for what Bowman did. "But if we discovered someone doing it, we would take action," he said.

Forest Service officials in Montana recently stopped a Missoula woman from spreading human cremains on public lands via her business, Ladies in White. For $390, Fran Coover and two friends, all dressed in flowing white dresses and hiking boots, offered to hike people's ashes into a wilderness area, conduct a scattering ceremony of sorts and provide a photograph of the site and GPS coordinates, in case family and friends want to return to the final resting site in the future.

Because it was a commercial venture, federal officials eventually denied her permit request. Coover is appealing that decision. But at the national level, at least, there are no regulations addressing the issue of private individuals disposing of ashes and, in Montana at least, the Forest Service takes a "don't ask, don't tell" attitude to scattering by private individuals.

That's been the approach taken by the Bureau of Land Management on its 274,000 acres of public lands in South Dakota, according to Marian Atkins, South Dakota field manager. "At this point, we don't have anything against it," Atkins said of private people scattering ashes on BLM land. But the Montana situation, with its for-profit issues, will probably force BLM management to look more closely at the issue, too, she said.

The spot the Bowman family chose was one of the last places that Nancy and Mert went in the Hills. Both artists, the couple often painted and sketched together in the Hills. That day, just a few short months before Mert's death at age 53 of kidney failure, they had watched mountain goats scamper on a back trail to Harney Peak, somewhere near the Cathedral Spires.

Custer State Park, which is under the jurisdiction of the state Game, Fish & Parks Department, borders U.S. Forest Service land near there.

The GF&P commission specifically prohibits the spreading of human cremains at one state park - Bear Butte State Park near Sturgis, according to Doug Hofer, director of GF&P parks and recreation division. The commission regulates that activity there at the request of a number of American Indian tribes, which consider it an inappropriate cultural practice.

"Years ago, it got to be a popular practice at Bear Butte by non-Native people," Hofer said. Because Bear Butte holds sacred meaning to Indian tribes, the commission agreed that "it would be inconsistent with the spiritual significance of the area to allow that."

Hofer was not aware of any GF&P regulations against scattering in other state parks, Hofer said, but state law would apply to those public lands.

South Dakota law, 34-26A-24 and 34-26A-27, speak only of permission to scatter human cremains over the sea and public waterways in the state, as well as on private land by consent of the landowner. Since there is precious little ocean in South Dakota, Jay Alderman, chief deputy of the Pennington County state's attorney civil department, said he thinks the Legislature's intent was to allow it to be done only in streams, lakes and other public waters, not on public land. "I see no reference in statute that allows it on land," Alderman said.

In 2000, the Legislature amended the law to make it a Class 2 misdemeanor if people fail to file, with the nearest county Register of Deeds office, a verified statement that includes the name of the deceased, the time and place of death, and the place that the ashes will be scattered.

Spokespersons in both the Lawrence County and Pennington County Register of Deeds offices could not remember anyone ever filing such a form. Alderman said that to his knowledge, no one has ever been prosecuted for failing to do so in Pennington County.

Rapid City funeral home director Ken Kirk estimates that 40 percent of all deaths in Pennington County now result in cremation of the deceased. The Cremation Association of North America said the U.S. cremation rate in 2001 was 27 percent and projects it will rise to 36 percent by 2010.

But with estimates of more than 1.4 million cremations annually by 2025, questions about where ashes may be scattered will be increasingly common, Kirk said. Kirk Funeral Home hosts two cremation seminars each year that are always well-attended.

"People are scattering ashes all the time. There's been a remarkable increase in that choice. Just 10 short years ago, the cremation rate was probably less than 25 percent here," he said.

Kirk tells clients what regulations exist about scattering ashes on public lands, but also notes that "cremation renders the body totally harmless as far as the spreading of any disease" and that the scattering of them presents no public health risk. "I feel like I've done my job that way. Beyond that, it's the family's business," he said.

Kirk's funeral home doesn't offer any professional services that involve scattering of the ashes, but it does sell a biodegradable urn for families who want to float ashes out to the ocean, lake or river and watch it disappear.

Pat and Donna O'Connell of Spearfish didn't realize they might be violating Forest Service regulations when they scattered the ashes of Pat's brother, Michael, into Spearfish Creek in 1998. "I'm sure some of them ended up in the forest," Donna said.

First, the couple traveled to Ireland, to drop some of his cremains off the O'Connell Bridge in Dublin. Six months after Michael's death, the extended O'Connell clan gathered for the wedding of his niece, Bridget. They held a scattering ceremony at Pat and Donna's Cheyenne Crossing cabin the next day.

"Michael was a much-beloved character in the Hills. That's where he belonged. That was his wish," Donna said.

The ceremony and its location held great meaning for friends and family, she said. Years later, it still brings comfort to Michael's family.

"It was very enriching for us. It adds to our love of the forest and our peace of mind about Michael," Donna said.

Hudson acknowledges that the Black Hills holds special meaning for many people. "I realize there's a lot of sentimental value to the forest for some people," he said. Still, he contends, the national forest is "just not the setting for that because it does not fit into the public use mission for the forest."

Private uses of the forest must pass a litmus test of sorts, he said. "Whenever private use is considered, we first ask, can this use be accommodated on private land? If the answer is yes, then we don't permit it."

In the BHNF, the only time human remains are allowed to be buried or scattered there are under the provisions of the Native American Graves and Repatriation Act, Hudson said. That law mainly covers the treatment of human remains that were originally located on public lands and were somehow unearthed or disturbed. Chapter 2360 of the Forest Service Manual, which includes a 2004 update of NAGRA, states "cremation ashes may be scattered on the Black Hills National Forest. Areas where ashes are scattered will not be protected, nor will any particular historic or memorial significance be accorded to these area or markers or monuments established."

Hudson said the reference to "cremation ashes" refers only to ashes that involve repatriation of Native American or historic human remains.

Dick Fort, a forest user and public lands activist, called the Forest Service's policy "a little backward. I don't see what the point is. Do they think it's going to pollute the forest or something? It might be beneficial, actually."

Now that they know about the ash-scattering ban, the O'Connells say they doubt they would have abided by it even if they had.

"I see no sense in it. I just don't understand that," Donna said.

Kirk also questioned the policy.

"Good, grief, who's it hurting?"

Bowman said the policy hurts her.

She wants the same resting place for her cremated ashes, but doubts she'd be willing to violate Forest Service regulations, or state law, another time.

"I'd like the same thing to happen with me," she said, "but I don't know now."

Hudson said the ban exists, in part, to prevent people from imbuing the scattering site with sacred significance and then objecting when other activities - such as recreation, logging or fire suppression n occur there in the future.

While Bowman understands that concern, she's still disappointed in the policy.

"It was really a very nice thing," she said of the dispensation of Mert's ashes. "He is with his nature now. I'm awfully glad I did it. And I would have been disappointed if I hadn't."

Contact Mary Garrigan at 394-8410 or mary.garrigan@rapidcityjournal.com

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