A Special Olympics Post

February 25, 2018

By Alix Rogers

A special Olympics post! On Thursday, February 22, the 16th day of this Winter Olympics, four-time Olympic skier Lindsey Vonn shared with the news media that she had scattered the ashes of her grandfather near where the downhill races were run. Her grandfather served during the Korean War and she wanted to return part of him to that country. First off, I think it was wonderful for her to include her grandfather in her special Olympic moment. I support families honoring their loved ones in meaningful and symbolic ways. In my capacity as a scholar of the law and the body, I wanted to comment on the transportation and scattering of human cremated remains. It turns out there are surprisingly complex and, at the same time, surprisingly lax regulations.

Scattering is commonplace, “[a]ccording to the Cremation Association of North America (CANA), one-third of people who receive cremains bury them, one third keep them, and the last third scatter them.”[1] Scattering ashes, depending upon the location, can trigger a relatively complex set of legal requirements. My guess is that in reality few families follow these. Ashes, especially small sentimental amounts, can be transported and scattered extra-legally very easily. Thus, even those who do violate these laws are extremely unlikely to be caught, let alone charged or sued in civil court. But, assuming one did want to scatter and transport ashes in full compliance with the law, what might you want to look into?

Each country has its own rules about the disposition of cremated remains. Within the United States state law, typically under the health and safety code, applies. There are no uniform laws, and regulations vary state-by-state. In California scatterings are permitted in “areas where no local prohibition exists, provided that the cremated remains…are not distinguishable to the public, are not in a container, and that the person who has control over disposition of the cremated remains…has obtained written permission of the property owner or governing agency to scatter on the property.”[2] Failure to obtain the written permission of a property owner can result in a misdemeanor for violating the state’s health and safety code. However, these cases are likely rarely reported, let alone followed up by the police. In 2007, staff at Disneyland reported a woman who was suspected of scattering ashes in the water of the Pirates of the Caribbean ride. The police ultimately decided to not even file a report due to a lack of evidence.[3] My guess is that in California, convictions resulting from improper disposition are extremely rare.

Some states do not appear to have explicit requirements for written permission. Consent is preferable, however because private landowners could always pursue a trespass action in tort, or a criminal charge of defiant trespass. These actions are only likely to occur in instances where the disposition of the remains is done in a particularly public manner. One of the few cases that has resulted in a conviction arose in Pennsylvania which does not appear to have an explicit cremated remains statute like California. The child of a deceased avid Eagles fan was found guilty of defiant trespass, fined $100 and given fifty-hours of community service after he ran onto the field and scattered his mother’s ashes during a football game.[4] Philadelphia Eagle’s fans are notorious for their devotion, and it appears that this passion continues even after death. It seems that numerous fans reported scattering ashes during the course of the celebratory parade marking the Eagles’ 2018 Superbowl win![5]

At the federal level, there are a limited number of relevant restrictions on the scattering of ashes. For example, for ocean burials the EPA issues permits through the Marine Protection, Research and Sanctuaries Act (MPRSA). To legally scatter cremated remains at sea, the Agency requires that it is notified within 30 days of the burial and that any remains be scattered at least three nautical miles from land.[6] Interestingly while it is legal to scatter cremated human remains at sea, it is illegal to scatter cremated animal remains. Another fun fact is that it is not permitted to use a rocket or a balloon to transport the ashes out to sea.[7] For federal parks, the national park service maintains a notice and free permit system for the scattering of ashes. To scatter ashes at Yosemite national park, one must first obtain a permit and agree to adhere to a set of conditions about placement. These include requirements to stay at least 100 feet from a water source, that the location is away from traffic areas, and that remains are scattered sufficiently to prevent accumulations.[8]

Given that it is likely that many individuals do not comply with existing regulations, it is worth noting that the ultimate harm from failing to comply with these requirements and regulations is minimal on an individual level. Properly cremated and dispersed ashes pose no significant health hazards, especially in small volumes. However, problems can arise if a scattering location becomes too popular. Notably, in 2009, “staff at the Jane Austen House Museum in Hampshire discovered piles of human ashes scattered around the novelist’s home and gardens….”[9] Piles of ashes can be particularly disturbing to the public if the ashes are not properly pulverized, and chunks of human bone or teeth remain.

Aside from the matter of disposition, there is the secondary matter of transportation. According to the TSA, cremated ashes are permitted as either carry-on or checked luggage.[10] The agency recommends the use of a non-metal container, as they must be able to x-ray it. Each airline has particular rules about luggage as well. Delta, for instance, allows cremated remains in carry-on or checked baggage,[11] but requires a death or cremation certificate. United in contrast mandates that ashes exclusively travel as carry-on luggage,[12] and only strongly encourages appropriate documentation. Finally, the Unites States Postal Service “offers the only legal method of shipping cremated remains domestically or internationally.”[13] Fed Ex and UPS will not knowingly transport cremated remains. The postal service has a particular Cremated Remains label that should be affixed to the package, and the contents must be listed on the box – “Mom”? “Grandpa”? Notably, however, the postal service leaflet does not mention insurance options.

Surprisingly, traveling internationally with cremated human remains appears to be largely unrestricted. The United States Customs and Border Control Agency does not appear to have any requirements around importing or exporting human cremated remains. I could find no requirements for exporting and they explicitly state on their website that there are no requirements for importing cremated remains.[14] A death certificate is, for instance, not required. Moreover, it seems that human remains may be one of the only things that you could ‘easily’ import or export from some countries. There are exceptions for the import and export of human remains from both Iran and Sudan.[15] I could not, however, find an exception for North Korea. Importing or exporting human cremated remains internationally could raise a host of rules and regulations in the other country. However, often there are minimal requirements, if any, due to the low biohazard risk of cremated remains.[16]

So do we have reason to think that Vonn violated American or South Korean laws? My guess is most likely not, and even if she did, any formal sanction is (and should be) unlikely. As shown, traveling, even abroad, with cremated remains can often be accomplished legally with little to no paperwork. The main source of concern is whether the privately owned resort gave permission, but this may not even be a requirement under South Korean law. Highly emotional and personal decisions, such as the disposition of loved ones remains, are often made by individuals without full consideration of the law. Higher profile instances can provide us with moments to pause and reflect on overlooked, but important, laws.

Alix Rogers, JD, PhD, is a CLB and SPINS fellow.

[1] http://ideas.time.com/2013/06/13/cremation-is-on-the-rise-but-where-to-put-the-ashes/

[2] Cal. Health & Safety Code § 7116 (West).

[3] http://www.latimes.com/travel/la-trw-disney14nov14-story.html.

[4] http://www.espn.com/nfl/news/story?id=2239860.

[5] http://www.philly.com/philly/super-bowl-lii/eagles-parade-philadelphia-fans-ashes-route-20180208.html.

[6] https://www.epa.gov/ocean-dumping/burial-sea#Can_I_scatter_inland_waters. Additionally, ocean scatterings in California cannot occur within 500 yards of the shoreline. http://www.cfb.ca.gov/licensee/crd_booklet.pdf.

[7] https://www.epa.gov/ocean-dumping/burial-sea#Can_body_parts_be_buried.

[8] https://www.nps.gov/yose/planyourvisit/upload/ashes.pdf.

[9] https://www.theguardian.com/environment/2009/jan/18/cremations-ashes.

[10] https://www.tsa.gov/travel/security-screening/whatcanibring/items/cremated-remains

[11] https://www.delta.com/content/www/en_US/traveling-with-us/baggage/before-your-trip/special-items.html. (this section also covers Christmas trees, who knew!).