In SE Minn., legal dispute over an old cemetery raises questions about who owns the past

Updated: 11:57 a.m.

The entrance to the Whitewater Falls Cemetery is easy to miss. 

Just off a semipaved road in the heart of southeastern Minnesota’s Whitewater Wildlife Management Area, the cemetery is shrouded by a canopy of trees, the final resting place for dozens of the area’s early settlers and farmers.  

“The cemetery is like a museum. There are stories at every single grave,” said Sara Holger, a naturalist for the nearby Whitewater State Park. The more than 150-year-old cemetery is a routine stop on the tours she gives to visitors of the valley, which in the late 1800s was home to the town of Whitewater Falls.

“We can learn a lot about what the town was like, who lived here,” she said.

It’s been years since anyone was buried in the cemetery, but some graves are decorated with miniature solar lights and clay flower pots, a sign that the living still visit their long-departed relatives. 

Recently, Holger said something unusual has appeared on this plot of land: Signs bearing an out-of-state phone number, advertising “natural burials.” 

“Right away I was like, 'Huh. Never seen that before,’ ” Holger said, whose Whitewater Valley tours bring her to this area regularly. 

The company selling those burial services is Destination Destiny, based in New Jersey, which is working to claim ownership of this old pioneer cemetery. 

The move has raised a legal quagmire: State and county officials say the company is trespassing and stands to face legal action — but Destination Destiny disputes the claim, saying the company has the right to reclaim the land. 

At the heart of the percolating dispute is the question of who actually owns the cemetery. Though it's surrounded by state-managed Department of Natural Resources land, it doesn't technically belong to the state, though Minnesota statute requires the DNR to mow and maintain the plot. 

Local officials, instead, insist that  the land belongs to Winona County. The deed lists the Whitewater Cemetery Association as the owner, but that association is no longer active. Its members, now buried beneath the earth the county says they own, can't weigh in on Destination Destiny's plans. 

A family cemetery

Today, Whitewater State Park and the 27,000-acre wildlife management area surrounding it is a wooded, scenic spot along the bluffs of southeastern Minnesota, where people come to hike, fish and hunt for morel mushrooms. 

More than 150 years ago, people from the East Coast and Europe started moving west and set up farms in the valley around the Whitewater River. But they abandoned the area before too long — it’s located on a floodplain, and their crops were repeatedly washed out. 

Four old pioneer cemeteries remain, including Whitewater Falls. A few Civil War veterans and one state legislator are buried there, but most plots are occupied by a handful of families who began living in the area in the mid-1800s. 

Gary Stoning of nearby Plainview, Minn., is a descendent of the Stoning family that donated their farmland for the Whitewater Falls cemetery back in the 1800s. 

As he walks around the cemetery, he points to old headstones: his great-grandparents, his grandparents, a few cousins. 

Stoning isn't wild about Destination Destiny’s plans to do business here. He worries someone will accidentally disturb the already buried bodies and gravestones. He's not sure why the company is interested in Minnesota land in the first place. 

“It was a family cemetery. And you just start putting other people in here? I don't care for it,” Stoning said. 

Restoring old cemeteries for a new purpose

Destination Destiny’s owner, Edward Bixby, said his interest in restoring old cemeteries by using them for natural burials started more than a decade ago. 

Bixby, a New Jersey real estate broker and developer by trade, was approached by a funeral director who was struggling to maintain an old cemetery in southern New Jersey — a cemetery where many of Bixby's ancestors are buried. He asked Bixby if he wanted to take it over.  

"I took him up on his offer, because even if we just cut the grass forever, it used to belong to my family, so it means something,” he said. 

A few months later, Bixby read an article about natural burials — no embalming, no concrete vaults and natural grave markers made out of materials like local stones — and was taken with the idea. 

He thought it would be good for the environment, and for the grieving process.

"Of course, the environmental part is a wonderful benefit,” he said. “But for me, the true definition of natural burials [is] how it transforms the family, how they have a greater form of acceptance and how it takes them to where they realize that you go back to where you came from.” 

Bixby said his company charges about $4,000 for a natural burial at its locations in California, Oregon and Pennsylvania — and soon, he says, in Minnesota. 

Repurposing defunct cemeteries like Whitewater’s for natural burials, he said, is an inexpensive way to do more of them without a huge financial investment in new land.

In Placerville, Calif., Bixby bought an old cemetery, spruced it up, and now uses it for natural burials. There, local officials say they are pleased with his work, and he now has a short-term contract with the county to maintain other cemeteries in the area, too. 

Bixby argues that defunct cemeteries like Whitewater are up for grabs — and for free — based on an obscure section of real estate law called adverse possession, a process in which a person can acquire someone else’s land. 

The cemetery has effectively been abandoned, the people listed on the deed to the land are long dead and the cemetery is no longer actively in use. 

Bixby argues that all he needed to do was to reestablish the defunct cemetery association with a new set of people — there’s even a local representative at the plot regularly, clearing and cleaning up the land — for the land to become his.  

“You can’t just say, ‘I own this cemetery now’”

Tanya Marsh, an expert in property and cemetery law at Wake Forest University, said using and restoring old cemeteries for natural burials makes sense. Centuries ago, bodies weren’t embalmed, graves were dug by hand. Those and other past practices are now hallmarks of today’s natural burials. 

Plus, she said, land is costly and zoning restrictions are cumbersome. Starting a new cemetery is difficult. 

“I think that there's a lot of really good reasons to take old, historic cemeteries that have some excess capacity and utilize these for burials,” she said. 

But Marsh said there’s still a process to follow — and Destination Destiny, she said, isn’t following it.

"You can't just go to an abandoned cemetery in any state and say 'I own this cemetery now,’ ” she said. “It is true that you have this ability under common law after a passage of time and successful trespassing to become the owner. But that takes a long time.” 

State officials’ challenges to Destination Destiny’s operations in Minnesota have echoed that argument. In a letter to Bixby, the DNR’s legal staff pointed out that, in Minnesota, the period of time to claim adverse possession is 15 years — much longer than the company has had a presence on the Whitewater land. 

But even if that weren’t the case, state statute says adverse possession doesn't apply to cemeteries.

In a separate letter to Bixby, the Winona County attorney argues the land belongs to the county, and that Destination Destiny is unlawfully trespassing on the land. 

Minnesota attorney Michael Sharkey, who specializes in mortuary law, said there are additional legal concerns at play.

He echoes Winona County's argument that the land belongs to the county — because, in Minnesota,  abandoned cemeteries where Civil War veterans are buried fall into county jurisdiction. 

Sharkey also argues that Minnesota law is clear that it's illegal to disturb cemetery land without the proper authority. But for the last few weeks, DNR employees at Whitewater say they have seen a Destination Destiny representative on the land regularly, cutting shrubs and clearing paths.

"It’s not just a felony to disturb human remains themselves. It's also a felony to disturb human burial grounds,” Sharkey said. “Frankly, I really hope the Winona County sheriff and Winona County attorney are listening.” 

‘He just blows us off’

It’s not the first time Destination Destiny’s practices have drawn scrutiny from local officials. 

A few years ago, the company started offering natural burials at a remote, abandoned cemetery near the coast in Half Moon Bay, Calif. 

San Mateo County supervisor Don Horsley, who represents the area where the cemetery is located, said the county disputes the company’s claim of ownership.

Moreover, Horsley said, California law would require the company to secure special permits to operate on the coast, which Bixby has applied for, and the county has denied.

“To do green burials, you’d have to have a coastal development permit, which he doesn’t have,” Horsley said. “And of course he just blows us off.” 

The situation in San Mateo County is ongoing, but Bixby maintains his company has every right to operate there. 

He says the same for Minnesota. 

“We’re not there to disrupt or upset people. We’re there to serve the community,” he said. “They only care when some guy from New Jersey shows up. They’ve basically said, ‘Get the hell out of town because we’re telling you to get the hell out of town,’ and that’s not an acceptable response, to me.”

The state of Minnesota and Winona County are threatening additional legal action. 

But Bixby said no plots have been sold yet, and no bodies buried — and he doesn’t plan to back down.

Correction (May 24, 2021): Don Horsley’s name was misspelled in an earlier version of this story.