EDCPCC EMAIL COMMENTS - June 10, 2002

Re: Agenda Item #63, Department Matters; June 11, 2002; Report on Uncared For Cemeteries and Proposed Work Plan

Dear Chairman Solaro and Honorable Board:

The El Dorado County Pioneer Cemeteries Commission (EDCPCC) would like to thank you for this opportunity to make comment on the above referenced agenda item.

EDCPCC consulted to the Cultural Resources Preservation Commission (CRPC) last year when the Cemetery Committee was assigned the task of reviewing the conditions of the county's historic cemeteries that are categorized as "Uncared For" by the General Services department. As part of our consultation, from September 28, 2001 through December 7, 2001 (except one week where others had scheduling conflicts), we led the committee on a series of cemetery tours of the target cemeteries we had previously located and visited over the past six years.

When we first met with the committee members, Jean Starns and Joan Wicklund, it was our recommendation that the committee tour the cemeteries by vicinity of location (i.e. those on the Georgetown Divide, those in the south county area, etc.), and to evaluate and report on the cemeteries to the board, using a priority emphasis on those cemeteries which remain in use by the public. While EDCPCC is extremely concerned about the condition of all our historic cemeteries, we also understand the basic health and safety issues connected with ongoing interments in cemeteries without historic records of burials or plot maps. It was our opinion there was a need for some civil control over the cemeteries which remain open to interments.

There were only a few cemeteries for which we did not provide the committee with an abbreviated history of the community served by specific cemeteries, and those were mainly smaller cemeteries in areas for which little prior history has been written. In most instances, we attempted to identify the period of time in which these communities existed, the size and extent of the town or village during those time frames, and identifying the earliest and most recent documented burials in the cemetery of each community.

In most instances, we identified that a cemetery was in use by the public for a period of time, by which that use of the cemetery had met the criteria established by former California Political Code section 3105 vesting title in the public. While for some cemeteries further research is necessary to make such a determination, the title to the vast majority of the cemeteries visited during the CRPC's tours, did vest in the public through operation of the former Political Code of California. That law, was not a permissive act, it was an instructive act. It mandated that the title to cemeteries in use by the public sufficient to meet the prescriptive use established by it, did vest in the people, and the Attorney General of the state has opined that historic Gold Rush era cemeteries are under the management and control of the board of supervisors of the county in which they are located, provided they are in the unincorporated territory of the county.

Having provided the above in background to the length and extent of EDCPCC's participation in assisting the CRPC Cemetery Committee, EDCPCC would like to offer the following recommendations for your board's action on this agenda item today.

3. Direct a copy of each of these documents to the newly established Cemetery Advisory Committee for it's review as relates to 1) any potential public title through operation of law, in order to advise the Board if specific cemeteries are public county cemeteries; 2) to make any further recommendations to the Board relative to the potential to acquire adjacent lands contiguous to the existing historic cemeteries in order to provide interment space for the current and future residents of those communities; 3) the viability of establishing a Public Cemetery District incorporating into the district's boundaries all unincorporated areas of the county not presently included in the Happy Homestead or Kelsey cemetery districts; and, 4) which of the cemeteries the advisory committee believes would be better served by converting them to legal Pioneer Memorial Parks pursuant to Health and Safety Code sections 8825-8829.

4. Direct staff to coordinate provision of ground penetrating radar (GPR) at the cemeteries cited in the General Services director's correspondence contained in this agenda item, the funding for which has already been approved by the Board.

We would refer to our prior correspondence to your board that was submitted last April in regard to the proposed cemetery ordinance amendment. Within that document, we submitted directly to you our abbreviated evaluation of the cemeteries as related to that acquired public title. In a number of instances we identified cemeteries which remain in use, that if the county continues to refuse to acknowledge the vested public title, will continue to operate illicitly and outside the requirements of California state law. We would hope that your board would consider the ramifications of allowing that continued operation and the potential for liability to the county as a result.

We believe that the board has been led to believe that the county is running out of places where county residents make be buried. We maintain that there is no shortage of grave spaces, but rather, there is a shortage of free or cheap grave space in the historic cemeteries still being operated and that to allow continued operation will ultimately result in burying over historic unmarked graves, double selling of graves, endangering the public health, safety and welfare, and posing a risk of legal liability not only to those operating the cemeteries, but to the County of El Dorado which may prove to have acquired a legal title in the majority of the operating cemeteries through operation of law.

We have reviewed the Cemetery Work Plan submitted with this agenda item. On the whole, it appears to be a well thought out document, though there are some problems as regards specific cemeteries. These are:Fair Play Cemetery

The results of the Ground Penetrating Radar mapping evidences that this cemetery has been operating to the detriment of unmarked and unknown graves for many decades. Each instance noted on the newly recorded plot map denoting a grave which has been impacted by more recent burials becomes a detriment to each grave involved. Each instance where a full or partial overburial is seen becomes a potential lawsuit from either of the families of the victimized grave.

The parties who have been "operating" this cemetery do not own it. The County says it does not own it although we have opined continuously since 1996 that the public acquired a title to this cemetery through operation of the former Political Code section 3105. The County has allowed this cemetery to operate to the detriment of the public health, safety and welfare.

Unless the County of El Dorado accepts the vested public title to the Fair Play Cemetery, it has no legal ability to allow these individuals to continue operating the cemetery. The county does, however, have a public trust obligation to ensure that no further interments occur in this cemetery that it neither owns, operates, maintains or controls in any legal way.

A complaint has been filed with the Dept. of Consumer Affairs, Cemetery and Funeral Bureau against certain individuals connected with operation activities at the Fair Play Cemetery. That complaint is under investigation.

The Cemetery Work Plan does not inform you that there is an ownership issue with regard to Camino Cemetery. In 1996, EDCPCC began asserting a public title had been acquired for this cemetery through operation of law (former Political Code section 3105). County Counsel issued a formal opinion to former General Services director George Cuttrell which conclude that a court would probably rule it to be a public cemetery pursuant to that statute.

Momentarily foregoing any conclusion of a public title, this cemetery was acquired by Eugene and Roberta Larsen in 1984. By state law, as individuals the Larsen's were prohibited from operating the cemetery. All private cemeteries must be operated by corporations, whether for-profit or non-profit corporations. Cemetery corporations not in place prior to August 14, 1931, must be licensed as a Cemetery Authority by the state Dept. of Consumer Affairs. NONE of this has occurred in the instance of the Camino Cemetery. To compound matters, we cannot identify that a county business license has ever been issued to this cemetery business.

It is our opinion that the Camino Cemetery is operating unlawfully. We continue to assert a public title was acquired through operation of law. We will also opine that we believe multiple overburials have already occurred at this cemetery, the action of which we believe constitutes multiple infractions of state law under both the Penal Code and the Health and Safety Code.

We request the County take physical control of the cemetery, its records and any monies connected thereto, for the protection of the public health, safety and welfare.

Camino Cemetery is overfull. Unless the results of the Ground Penetrating Radar are necessary to satisfy curiosity or for criminal prosecution, we believe it is an unnecessary expenditure of county funds.

The Cemetery Work Plan notes "Ownership in question; Proposed agreement to have IOOF maintain and operate is pending." We would advise your board that the ownership of this cemetery is NOT in question. The matter of the ownership was established in 1997 and 1998 through a review of both the General Services department staff and the county counsel's office. The Diamond Springs Public Cemetery is comprised today of two townsite lots, Lot 7 and Lot 4 of Block 7 as shown on the Official Map of the Townsite of Diamond Springs. Lot 7 of Block 7 is clearly delineated as "Public Cemetery," was so noted in County Judge Charles F. Irwin's Log Book (required to be kept by state law), and was withheld from private title according to law.

Judge Irwin's Log Book indicates he issued a townsite lot patent deed to Francis Clow for Lot 4 of Block 7, but Clow never recorded his patent deed and the lot began to be used for burials.

State law mandates that all property in California is either in public or private ownership. To provide for such ownership the California Government Code section 182 (originally enacted in 1872), establishes that where title to property fails for a lack of heirs or next of kin, it shall revert to the public. Since Francis Clow never recorded his patent deed for Lot 4 of Block 7, title to this lot reverted to the public. Since burials began occurring within that lot as early as the 1880s, Lot 4 acquired a dedication to use for cemetery purposes only through an implied dedication evidenced by its subject use. Lot 4, therefore, is a public cemetery dedicated to cemetery purposes, and through the provision of reversion of its title, is owned by the County of El Dorado.

The stated intention for the IOOF to maintain and operate the cemetery is also of concern to us. In 1997 members of the Diamond Springs Lodge No. 9 of the Independent Order of Odd Fellows physically evicted EDCPCC president Sue Silver from the grounds of the public cemetery. Furthermore, they followed her when she left, made verbal threats and other unintelligible remarks, contacted and threatened former District 1 supervisor Sam Bradley with regard to this matter, and attempted to locate Ms. Silver's home address.

To compound the matter, they also filed a Sheriff's report, falsely accusing Ms. Silver of stealing tombstones from the Diamond Springs Cemetery. This report was investigated by then-Lt. Mark Getchel of the Sheriff's department, who determined that no theft whatever occurred.

Shortly after this, it was found that someone had sandblasted the ornamental iron fencing at the Diamond Springs Public Cemetery and had sprayed primer in preparation to paint the railings. As a result, over spray was found on the historic marble tombstones which cannot be removed by usual chemical methods and will require extensive restorative care. Where the sandblasting removed the rust patina of the ornamental iron work, it is now left subject to further more destructive rust corrosion that will ultimately result in the full degradation of the iron over time.

The care of an historic cemetery is more than just mowing and weeding. It entails grave stone repair, the methods of which are prescribed by professionals in the field of historic preservation and require learned skills and knowledge.

It light of the above knowledge, it is inconceivable that the County would consider entrusting this historic public cemetery to the care of those whose past behavior has already exhibited a propensity toward violence in a matter related to this cemetery.

We object to any plan to divest any of the county's historic public cemeteries to any party not a part of the county government.

The Cemetery Work Plan again does not note that the ownership of this cemetery is in question even though EDCPCC has on multiple occasions asserted we believe the public acquired the title to this cemetery through operation of law. We stand firm in that opinion.

Similar to the comments above regarding the Camino Cemetery, the Frenchtown Cemetery Association did not incorporate until the 1980s. Prior to that it was functioning as an unincorporated non-profit organization. Since 1931, state law has required that cemeteries be operated by corporations and corporations which did not exist prior to August 14, 1931, have been required to become a licensed Cemetery Authority by the Dept. of Consumer Affairs. It is our opinion that the Frenchtown Cemetery Association has been unlawfully operating this cemetery since its date of incorporation.

The Cemetery Work Plan does not inform your board that the Frenchtown Cemetery Association is comprised of certain members of one family who are now claiming this is a "family cemetery." Neither we, nor the CRPC Cemetery Committee, would concur with that claim.

We request the County of El Dorado to take physical control of this cemetery until the matter of its legal title is resolved. The Frenchtown Cemetery Association should not be allowed to continue operating this cemetery outside the requirements of the law.

The Cemetery Work Plan comments that the ownership of this cemetery is unknown. We believe this must be an entry error made to this table, since we have already provided the county with information that the cemetery is within land managed by the Bureau of Land Management, although the title to the cemetery had vested in the public according to law prior to the BLM's recovery of the larger sections of land at an unspecified date in the recent past.

The Cemetery Work Plan notes that maintenance is provided by the County. If this is true, we are unaware of it and do not believe that the Bureau of Land Management is aware of it either.

The work plan also recommends that GPR be performed at Indian Diggings Cemetery. We believe this would be an unnecessary expenditure of county funds since it has not been used for over thirty years. It would be more reasonable, it the County desires, to establish this cemetery as a legal Pioneer Memorial Park and a county historic landmark since the cemetery is the only remaining portion of the Gold Rush town of Indian Diggings.

The Cemetery Work Plan does not advise you that the title to the historic section of this cemetery is in question, and that EDCPCC has opined we believe the public acquired a public title to this cemetery property prior to the 1904 dated deed from the Fleming family to the Jayhawk Cemetery Association, an unincorporated non-profit cemetery organization.

The Association also accepted a deed for an additional acre of land in 1952, while they remained unincorporated and continued to operate the cemetery outside the requirements of the law which mandated that the cemetery be operated by a corporation and that the corporation be licensed by the state Dept. of Consumer Affairs.

In addition, EDCPCC's greatest concern in relation to the Jayhawk Cemetery is the continued use of the historic section. If the County of El Dorado intends on accepting the vested public title to this cemetery, we would request that the historic section be closed to future burials, unless those interments are planned to be within established historic family plots for which efforts have been taken to identify there is vacant grave space available.

As with the Camino and Frenchtown cemeteries, if the County of El Dorado refuse to accept the vested public title, it still must require this cemetery be legally operated according to the requirements of state law.

The Cemetery Work Plan fails to identify that the County of El Dorado provides maintenance of this religious cemetery through an agreement which was the result of a lawsuit filed against the county and others for illicit actions taken by those entities upon providing owned by the Church.

This was the first lawsuit filed against the County of El Dorado in relation to a cemetery property. We believe, unless the county appropriately addresses the myriad of cemetery related issues brought to your attention by EDCPCC and others, it will not be the last lawsuit over a cemetery matter.

It is our opinion that the problems related to our county's historic cemeteries extend beyond the aesthetic concerns, and speak to violation of the law both by private individuals and the County of El Dorado. It is apparent that the number one priority of the county should be the determination of any potential public title since the ignorance of the public title leaves the county seriously at risk.

Furthermore, failure on the part of the county to ensure that all cemeteries within the county are operating according to the requirements of state law, is a dereliction of the duty to uphold the laws of this state and to provide for and protect the public health, safety, and welfare. This is most true, especially, in light of the comments made time and again by EDCPCC over the last six years, as the county continued to fail to act on behalf of the public at large.

We have posted this matter to our website, including our comments as submitted to the Board last April 15th relating to the cemetery ordinance amendment. We have also created a cemetery page for Fair Play Cemetery utilizing the plot map recorded by the county and our comments relative to that issue.

You may review the site at: http://www.usgennet.org/usa/ca/county/eldorado1/fair_play_cem.htm .

We sincerely hope the Board will consider our above recommendations for your action today and allow the Cemetery Advisory Committee to focus carefully on these issues. It is our opinion that the issue of acquired or vested public title is paramount to any future cemetery work plan.