January 01, 2020

Burial at Sea: Maryland’s Historic Cemeteries at Risk

Terra Bowling

Benjamin Franklin is widely quoted as having said, “Show me your burial grounds and I’ll show you a measure of the civility of a community.” See, e.g., Mt. Washington Cemetery, Cemetery Index.com, http://cemeteryindex.com/wordpress/featured-cemeteries/mt-washington-cemetery/. Many coastal burial grounds are at risk of being inundated before they can be protected or even properly recorded. Maryland, as a low-lying coastal state with many gravesites dating back to early American history, has its share of vulnerable cemeteries. While shoreline communities and residents may migrate inland or receive government assistance to prevent or repair impacts from coastal storms, flooding, or erosion, historic cemeteries may not have these same safeguards. Landowners may lack the proper funds or interest to preserve a cemetery or even be unaware that a cemetery is located on the property. Communities have a chance to show their civility by taking steps to preserve the history and dignity of these burial grounds before they disappear.

Small historic cemeteries give a unique glimpse at the cultural, historical, scientific, and scenic values of an earlier time. In the United States, early American cemeteries often began as small plots set aside by settlers, usually either family burial grounds or plots connected to small churches and townships. Native American burial practices varied but are similarly dispersed in rural areas. These burial grounds may be located in marshes, woodlands, or farm fields. While some grave markers remain, others are missing or may never have been marked at all. Encroaching development and neglect threaten these gravesites. Even cemeteries that have been protected by designation as historic trust sites face damage once they become tourist destinations, drawing visitors and vandals alike. Cemeteries in coastal areas face additional threats: sea level rise, coastal erosion, and subsidence.

As glaciers and ice sheets melt and warmer water temperatures cause the ocean to expand, sea level rise threatens coastlines around the world. In the United States, the Eastern Shore of Maryland is an area of particular concern due to its low-lying towns and marshes. Over the past two decades, the sea level in Maryland has risen three times faster than the worldwide average. If emissions continue to rise, sea level in Maryland could increase 2.0 to 4.2 feet by 2100. See D.F. Boesch et al., Sea Level Rise: Projections for Maryland 2018, University of Maryland Center for Environmental Science. Even as the ocean is rising, recent geological changes to the Eastern Shore mean that the land is subsiding or sinking. For historic cemeteries facing such risks, there are three primary responses: preserve, move, or record gravesites.

Preservation

Federal, state, and local governments have varying authority to preserve historic cemeteries. In this instance, “preserving” burial sites means to maintain the gravesites and any markers in their current locations. For coastal cemeteries, preserving may also mean efforts to hold back the water using sea walls, bulkheads, or revetments.

Federal protection of cemeteries and their graves is limited to the National Historic Preservation Act and the Federal Emergency Management Act. The National Historic Preservation Act of 1966 (NHPA) established the National Register of Historic Places. 54 U.S.C. § 302101 et seq. NHPA requires any federal agency that owns or controls sites listed on the National Register to assume preservation duties. Under the Act, any federally funded project must be reviewed to determine whether it may result in an “adverse effect” on any cultural resource eligible for or listed on the National Register.

State historic preservation programs may be established under NHPA. The Maryland Historical Trust is the State Historic Preservation Office (SHPO) designated for the State of Maryland under NHPA. Among other responsibilities, SHPOs are charged with conducting a statewide survey of historic property, nominating eligible properties to the National Register, and consulting on federal agency actions concerning historic properties. For state-owned or controlled properties on the state register, the state must ensure that they are not “transferred, sold, demolished, destroyed, substantially altered, or allowed to deteriorate significantly.” Md. Code Ann., State Fin. & Proc. § 5A-326. The state also requires review of actions that affect listed historic properties and compensation if the state damages a historic property.

A cemetery may be eligible for the National Register based on whether it derives its primary significance from “gravesites of persons of transcendent importance, the age of the burials, distinctive design features, association with historic events,” or if the resource has the potential to yield important information. See 30 C.F.R. § 60.4(d). Although cemeteries may be listed on the National Register, listing is uncommon for cemeteries and, therefore, is not the most likely avenue of protection for smaller, lesser-known gravesites. Further, NHPA may prevent development but does not protect a historic cemetery from threats such as water inundation.

If floodwaters have dislodged caskets from cemeteries during a declared disaster, those graves may be eligible for Federal Emergency Management Agency (FEMA) disaster relief on a case-by-case basis. FEMA, Disaster Funeral Assistance Fact Sheet, April 2019. FEMA can assist with reburial expenses if the grave was in a family burial plot on private property. The person who incurred reburial expenses must register for FEMA assistance to request help with these expenses. Public cemeteries may also be eligible for assistance through FEMA’s Public Assistance program.

As federal protection of historic cemeteries is somewhat limited, many aspects of cemetery preservation fall under state jurisdiction. Maryland’s laws focus on the protection, access, and maintenance of cemeteries. In Maryland, the owner of a burial site (defined as “any natural or prepared physical location, whether originally located below, on, or above the surface of the earth into which human remains or associated funerary objects are deposited as part of a death rite or ceremony of any culture, religion or group”) is responsible for its care and maintenance. Md. Code Ann., Bus. Reg. § 5-503 (e)(1) and Real Prop. § 14-121(2)(i). However, certain parties have the right to request access from the owner of a burial site or of the land encompassing a burial site to restore, maintain, or view the burial site. Md. Code Ann., Real Prop. § 14-121. Such a party, defined as a “person in interest,” includes any person who (1) is related by blood or marriage or domestic partnership to the person interred, (2) has a cultural affiliation with the deceased, or (3) has an interest that is in the public interest after consultation with a local burial sites advisory board or, if such a board does not exist, the Maryland Historical Trust. Md. Code Ann., Real Prop. § 14-121(a)(4). Property owners are not required to grant access for preserving or recording graves but are required to provide an appropriate easement for any burial site for any individual related by blood or marriage or a person in interest as defined by state law. Md. Code Ann., Land Use § 5-102. The easement is not required, however, to be extended for any improvements on the burial site. Md. Code Ann., Land Use § 5-102. This exception may apply to a limited number of historic cemeteries, depending on location.

Under Maryland law, the owner of a burial site or the land encompassing a burial site is not liable for damages to a person who enters the land to view, restore, or maintain gravesites, except for willful or malicious acts or omissions. Md. Code Ann., Real Prop. § 14-121(e). Instead, a person who enters land to view, restore, or maintain gravesites is responsible for ensuring that his conduct does not damage the land, the cemetery, or the gravesites, and will be liable to the property owner for any damage caused as a result of the access. Md. Code Ann., Real Prop. § 14-121(f).

In 2018, Maryland updated its laws to provide as follows:

An owner of a burial site or of the land encompassing a burial site that has been in existence for more than 50 years and in which the majority of the persons interred in the burial site have been interred for more than 50 years shall consult with the Director of the Maryland Historical Trust about the proper treatment of markers, human remains, and the environment surrounding the burial site.

Md. Code Ann., Real Prop. § 14-121.1 (2018).

The Act provides, however, that the advice of the Maryland Historic Trust is not binding.

For some cemeteries, the owner of the lot may be unknown, but several resources may help identify the owner of land encompassing a burial site. The county deed recorder’s office would likely have records of the current and previous owners of the land in question. Local historical or genealogical societies or libraries may also be good resources for obtaining information on the history of a cemetery.

Local governments also can play an important role in the preservation of cemeteries. In Maryland, local governments can repair or maintain burial sites within their jurisdictions at the request of or with permission of the owner of the burial site. Md. Code Ann., Real Prop. §14-122(b). State law also authorizes local governments to appropriate money, solicit donations, provide incentives for charitable organizations or community groups to donate their services, and develop community service programs to allow those required to perform community service hours to “maintain and preserve a burial site or to repair or restore fences, tombs, monuments, or other structures located in a burial site . . .” Md. Code Ann., Real Prop. §14-122(c). Local governments also may adopt zoning ordinances that could protect historic cemeteries.

Local historical or genealogical societies are other potential sources for assistance with preservation efforts. At the state level, Preservation Maryland (as stated on its website) is a group “dedicated to preserving Maryland’s historic buildings, neighborhoods, landscapes, and archaeological sites through outreach, funding, and advocacy.” Preservation Maryland, www.preservationmaryland.org/. The Coalition to Protect Maryland Burial Sites also provides information on cemeteries statewide. Local schools, local law enforcement offices that operate a community service sentencing program, community associations, or other local clubs could assist with cemetery preservation.

Although Maryland state law authorizes preservation, there does not seem to be a requirement to do so. This has been the outcome in other states with similar laws. In one New Jersey case, a plaintiff sought to use the state’s Historic Cemeteries Act to protect a small historic African American cemetery connected to the St. James AME Zion Church, which existed from approximately 1851 until 1873. The New Jersey Historic Cemeteries Act authorizes local governments to restore historic cemeteries. N.J. Stat. Ann. § 40:10b1-3. A court ruled that although the act authorized preservation, it did not require any affirmative action by the local government to protect the graveyard from a zoning variance. Harris v. Borough of Fair Haven, 721 A.2d 758 (N.J. 1998). In West Virginia, plaintiffs brought action against a pipeline construction company alleging grave desecration in violation of a state statute that protects gravesites of historical significance. Gen. Pipeline Const., Inc. v. Hairston, 765 S.E.2d 163, (W. Va. 2014). The statute is narrowly tailored to protect unmarked graves of historical significance. W. Va. Code § 29–1–8a. In this instance, among other rulings, the court found the gravesites were marked and did not meet the requirements for protection under the law.

Maryland’s many historic cemeteries and gravesites reflect its rich history. Early coastal residents often buried their families in small, rural gravesites or churches. Now, encroaching marshland threatens many of those gravesites. Researchers predict that some portions of Dorchester County, Maryland, will be chronically inundated by 2060. Union of Concerned Scientists’ Fact Sheet, When Rising Seas Hit Home: Maryland Faces Chronic Inundation (July 2017). The Town of Smithville, located in Dorchester County on the edge of Blackwater National Wildlife Refuge along the Harriet Tubman Underground Railroad Byway, is one of the threatened communities. At one time, 100 residents lived in Smithville, a historic African American settlement, but only 4 residents remain. Rising water threatens the cemetery at the historic New Revived United Methodist Church in Smithville. As residents have moved away, options for preserving the cemetery have diminished. While many modern cemeteries are “perpetual care” cemeteries, for which families pay into a fund to ensure that gravesites are maintained in perpetuity, this is not usually the case with historic cemeteries where, typically, landowners are responsible for the burial sites on their property. For towns like Smithville, preservation is critical, yet funds and resources to protect the cemeteries may be elusive.

Relocation

A second and more permanent solution for burial sites threatened by sea level rise is to relocate the graves. One example of an entire cemetery relocating due to coastal erosion is in North Cove, Washington, more popularly known as “Washaway Beach.” Kathy Park and Tanya Bauer, “Washaway Beach,” Fastest-Eroding Place on the West Coast, Cobbles Together a Solution, NBC News (Nov. 24, 2018). The shoreline has eroded more than 100 feet per year since the late 1800s. It is the fastest eroding place on the West Coast, with more than 100 homes, a lighthouse, a Coast Guard station, and a clam cannery already falling into the sea. In 1977, the Pioneer Cemetery was moved across the highway following a citizen’s campaign to save the site from loss due to coastal erosion. Port Heiden, Alaska, is another community that was affected by intense coastal erosion. The coastline along the Bristol Bay community eroded at a rate of 15 to 20 feet each year. U.S. Army Corps of Engineers, Alaska District, Erosion Information Paper—Port Heiden, Alaska (Oct. 24, 2007). The village relocated inland in the 1980s, but a graveyard remained at the coast. In 2003, the beach eroded, washing six gravesites into Bristol Bay. Residents worked alongside state and federal agencies to move the remaining graves inland. Tim Hoffman, Air Force Saves Native Remains, U.S. Air Force (Jan. 26, 2004).

Pursuant to Maryland state law, human remains or a gravestone, monument, or marker may be removed from a burial site if authorized by the state’s attorney for the county. Md. Code Ann., Criminal Law, § 10-402. Notice of the proposed relocation of remains must be published for 15 days in a newspaper with general circulation in the county in which the burial site is located. Any remains must be reburied in a perpetual care cemetery or a place designated by a person in interest as defined by state law. The law also states that the new location must be “entered into the local burial sites inventory or, if no local burial sites inventory exists, into a record or inventory deemed appropriate by the State’s Attorney or the Maryland Historical Trust.” Id.

For cemeteries like the one in Smithville, Maryland, moving graves is an unlikely option. Finding the funds to do so may be infeasible. Further, if the cemetery is moved, its new location may not carry the same cultural significance as its current location. Violent coastal erosion led to the aforementioned grave movement in Alaska and Washington. Crises and solutions emerged simultaneously. With slow coastal inundation, however, moving graves is not always possible. In some cases, the only option is to record the location of the graves and allow the inundation to continue.

Recording

A more common option for managing graves facing inundation is to record the gravesites before they are inundated. This has been the case in Louisiana where coastal towns face sea-level rise, subsidence, and storm-driven erosion. More than a quarter of the state’s wetlands have disappeared since the 1930s. A federal report estimates that Louisiana’s coastal parishes have lost 2,006 square miles of land—an area approximately the size of Delaware. Brady R. Couvillion et al., Land Area Change in Coastal Louisiana (1932 to 2016)—Pamphlet to Accompany Scientific Investigations Map 3381, U.S. Geological Survey, U.S. Dept. of the Interior (2017). Although the living residents of these areas have long since migrated inland, many of the graves and cemeteries have been subsumed into the Gulf of Mexico. Instead of attempting to relocate threatened cemeteries, efforts have been focused on recording them so that future historians and genealogists can access the information.

In recent years, researchers have embarked on a project to use GPS to map and record many of the rural cemeteries that are “sinking.” One such example is the community of Isle de Jean Charles, home to the Biloxi-Chitimacha-Choctaw Tribe. The community has lost 98 percent of its land since 1955, and its last connection to the mainland is a narrow, often-flooded road. Michael Isaac Stein, How to Save a Town From Rising Waters, CityLab (Jan. 24, 2018). In 2016, the community received a $48 million National Disaster Resilience Grant from the U.S. Department of Housing and Urban Development to move its 99 remaining residents to a new town. The resettlement plan is focused on maintaining the cultural community, rather than individually buying out residents as has been the case with past resettlement efforts. With no plan in place to move the graves from the Isle de Jean Charles cemetery to the new town, recording the gravesites is crucial to document the town’s history. The Isle de Jean Charles Cemetery, which holds approximately 150 graves, closed to new burials in 1944.

Most national and international actions for cemeteries threatened by flooding involve community efforts like those seen in Louisiana. Thirty-one villages along the Alaska coastline are at risk of disappearing due to erosion and sea level rise. The town of Newtok, Alaska, has been losing approximately 70 feet of land each year due to coastal erosion. The town has had plans to move the community since 2000 and received some federal funding to do so in 2018; however, the funds are not enough to move the entire community, which does not bode well for its cemeteries.

Recording has been an option for many gravesites in Maryland but is not required. State law notes that individuals may report the location of a burial site to the appropriate county officials, who may note the presence of a burial site on county tax maps. Md. Code Ann., Real Prop. § 14-121(f) (emphasis added). The Maryland Historical Trust maintains the Maryland Inventory of Historic Properties (MIHP). Again, listing has no regulatory impact. As noted in the preservation section, nonprofits, such as Preservation Maryland and the Coalition to Protect Maryland Burial Sites, have funded efforts to map historic gravesites. For cemeteries like the one in Smithfield, recording may be the only option to preserve the history of the graves.

Controversy and Recourse

Despite the availability of resources and authorization under state law, the act of preserving coastal historic cemeteries facing sea level rise or erosion can be controversial. Sea walls, bulkheads, or other hardened structures used to prevent flooding often lead to adjacent shoreline loss. The structures must be constantly expanded to protect from further erosion. For instance, the North Carolina Department of Environmental Quality gave Dare County a grant of $162,000 to construct a bulkhead to protect the Outer Banks Salvo Cemetery, which was slipping into the sea. One commentator noted as follows:

Assuming the community is willing to continue to pay for such extensive maintenance, or that the state will pony-up taxpayer funding after future hurricanes, with time, this cemetery will probably protrude into the sound like a mini-peninsula as the adjacent shorelines continue to erode back. With the rising sea, the next big storm with onshore winds from the sound will likely cause the loss of the cemetery, bulkhead or no bulkhead.

Orrin H. Pilkey and William J. Neal, Our Coastal Cemeteries Are Falling into the Sea, The News & Observer (May 29, 2019).

If a cemetery’s flooding issues are exacerbated by another property owner’s efforts to preserve their property from coastal threats, there may be legal recourse. Generally, there are three doctrines concerning liability for surface water discharge onto another’s property: (1) the common enemy rule, (2) the civil law rule, and (3) the reasonableness rule. The common enemy rule recognizes that water is the common enemy to all, so a property owner can act to protect his or her property from damage despite any damage to the neighboring property. Eric M. Larsson, Unreasonable Alteration of Surface Drainage, 109 Am. Jur. Proof of Facts 3d 403 (2009). The civil law rule states that an owner is liable for altering the natural flow of water on their land that results in harm to another landowner. The reasonableness rule states that landowners can make reasonable use of their property and will only be liable for damage resulting from altering the flow of surface water if their reason for the change was unreasonable.

In Maryland, courts have used a combination of the civil law rule and the reasonableness rule, stating, for example, “The Court has unhesitatingly recognized the right of the dominant owner to the continuance of natural drainage, thus making clear that, in Maryland, the doctrine of ‘reasonableness of use’ is but a qualification to, and not a substitute for, the civil law rule.” Mark Downs, Inc. v. McCormick Properties, Inc., 51 Md. App. 171, 183–84 (1982). Essentially, the landowner changing the course of the water must use reasonable precautions to protect the other landowner. The application of the rule is fact-specific and therefore varies from case to case. Maryland courts have defined the scope of the rule. It has been applied to prevent the dominant landowner from “(1) increasing materially the quantity or volume of water discharged onto the lower land; (2) discharging water in an artificial channel or in a different manner than the usual and ordinary natural course of drainage; (3) putting upon the lower land water that would not have flowed there if the natural drainage conditions had not been disturbed; (4) causing dirt, debris, and pollutants to be discharged onto the lower land; or (5) otherwise creating a health hazard.” 51 Md. App. at 184.

In one Maryland case, a cemetery filed an action against the upper landowners for periodic flooding of a part of its cemetery lands by the stream that ran through the cemetery. Parklawn, Inc. v. Giant Food, Inc., 262 Md. 148 (1971). The cemetery claimed the upper landowners negligently caused excessive water, silt, debris, and dirt to be deposited on its lands and sought injunctive relief. The appellate court affirmed the trial court’s award of monetary damages against the upper landowner and reversed and remanded the trial court’s order refusing injunctive relief to the cemetery corporation.

In New York, the state attorney general sued a developer for discharging stormwater that caused flooding at a cemetery, resulting in the relocation of 18 graves. New York v. James C. Stevens III, Summons and Verified Complaint (6th Jud. Dist. Sup. Ct. Courtland Cty., N.Y., Nov. 13, 2014). The complaint charged that the developer violated several state environmental laws regarding the discharge of stormwater. The suit also claimed that the developer’s activities constituted a public nuisance under state law, as they injured the property, health, safety, or comfort of several individuals. The court ordered the developer to remedy the illegal discharge, and when he did not, he was placed in jail. Robert Harding, Cortland County Man Jailed for Illegal Stormwater Runoff That Damaged Cemetery, The Citizen (Feb. 10, 2017).

Outlook Unclear

With increased sea level rise, coastal erosion, and subsidence, many coastal graves will be inundated before they can be preserved, moved, or recorded. Historic cemeteries for minority or underserved populations like the ones in Smithville, Maryland, or Isle de Jean Charles, Louisiana, lack funding for preservation efforts. Cemeteries marked with handmade markers or not recorded are particularly at risk, as they have never been recorded. Saving these historic cemeteries will likely require a complex solution.

Currently, government protection for historic cemeteries is limited. At the federal level, only a percentage of the vulnerable cemeteries are listed on the Historic Register under NHPA. Further, an Historic Register listing does not protect cemeteries from coastal inundation or erosion. FEMA helps in cases of disaster, but coastal inundation is often a slow process and many cemeteries would not qualify for protection. In Maryland, the state and local governments may offer some protection for flooded cemeteries, but, again, historic cemeteries threatened by sea level rise or erosion do not have comprehensive protection.

Recent efforts at the state and federal level have recognized the importance of saving historic gravesites. For example, in 2018, an oil company developing Louisiana land discovered two cemeteries containing nearly 1,000 unmarked slave graves. Following the discovery, Louisiana state lawmakers created a commission to outline measures to identify and protect historic cemeteries where former slaves were buried. In 2019, the African-American Burial Grounds Network Act was introduced in Congress (H.R. 1179). The Act would establish a voluntary national network of historic African American burial grounds. It also would create a National Park Service program in coordination with state, local, private, and nonprofit groups to educate the public and provide technical assistance for community members and public and private organizations to research, survey, identify, record, and preserve burial sites and cemeteries within the network.

Although state and federal actions like this are important, the best solution likely lies at the local level. States are unlikely to dedicate funds to a local problem. Further, a blanket state rule on historic cemeteries may not be able to respect the nuances of culture and tradition in a way that local solutions could. Nonprofit groups can provide limited funding and assistance to protect, record, or move the cemeteries.

Even if funding is available to protect or preserve historic cemeteries, some of the solutions can be controversial. Support for seawalls or other hardened structures can be contentious, because the “solutions” can ultimately create more problems than they solve. An important consideration when moving any grave is the original wishes of the deceased and their families: Would the move comport with the deceased’s final wishes? Further, if the graves are moved from the original burial grounds, some of the culture and history may be lost. A more common and probably more realistic solution is to record the graves.

At the very least, efforts to record these at-risk graves should be accelerated before they are gone. The loss of these cemeteries is a loss of history and a harbinger of the future for other coastal structures. And, when making long-term decisions about where and how to bury the deceased in the future, selecting a vulnerable coastal location is likely to be an ill-fated choice.

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Terra Bowling

Ms. Bowling is a research counsel II at the National Sea Grant Law Center. She may be reached at tmharget@olemiss.edu.