Dear Mr. Spurlock:

This is in response to your March 6th email to the Attorney General

concerning the removal of a large number of graves from the Pebble Creek

development pursuant to a court order obtained by the landowner and

developer PMG-One, LLC..

Section 57-38.1 of the Code of Virginia allows a landowner with an

abandoned graveyard on his land to apply to a circuit court for an order

allowing the removal of the remains and their reinterment in a more suitable

repository. While it does not require that the Department of Historic

Resources be made a party defendant, it requires all persons in interest

other than the plaintiffs to be made defendants, and it requires an order of

publication if any of such parties are unknown. It directs the court to

"consider the historical significance of such graveyard and ... the wishes

of the parties concerned so far as they are brought to its knowledge."

Section 10.1-2305 provides an alternative authorization for

excavation of burials under a permit from the Department of Historic

Resources, but this permit is only required for those who wish to do an

archaeological investigation. While § 10.1-2305 provides that the

Department "shall be considered an interested party in court proceedings

considering ... family graveyards with historic significance," nothing

requires that removals authorized in such court proceedings be done

archaeologically, or under a Department of Historic Resources permit.

The Pebble Creek burials were brought to the attention of the

Department of Historic Resources in February of 2000 when Rockview Homes,

Inc., discovered a skull in the course of excavating for a new home. While

representatives of the Department of Historic Resources have no authority to

issue stop work orders, they did advise Rockview Homes that it needed a

permit from the Department under §10.1-2305 of the Code of Virginia if it

wished an archaeological excavation of the burials, or a court order under §

57-38.1 to authorize the non-archeological removal of the remains and their

proper disposition in another place. They further indicated that where

three burials had been found, it was likely that there would be more burials

in the area.

Rockview Homes subsequently deeded the lots in question to PMG-One,

LLC, the developer from whom it originally acquired them. PMG-One did not

elect to do an archaeological investigation of the burials. It applied

under § 57-38.1 for an order of removal from the Hanover County Circuit

Court in Chancery No. 358-01. The Department of Historic Resources was not

notified of this proceeding. The Department has no jurisdiction over

non-archaeological burial removals. However, if actually notified of the

proceeding at that time, it might possibly have suggested that a preliminary

archaeological survey be done to determine the boundaries of the cemetery

and the number and location of the graves.

The court issued an order of publication to all persons who had or might

have had an interest in the small, abandoned graveyard located on the

property at issue. No one came forward to assert any interest in the

graveyard or to advise the court of local knowledge of the graveyard or the

possible existence of two graveyards on the Property, or their possible

historic significance. The court therefore issued its order to PMG-One to

cause the proper removal of any remains and their reinterment in a more

suitable repository.

With kindest regards, I remain

Very truly yours,

Frederick S. Fisher