Presentation on theme: "Manual of Surveying Instructions (2009) Presented by: Bob Dahl, Cadastral Surveyor Division of Lands, Realty and Cadastral Survey Bureau of Land Management,"— Presentation transcript:
Manual of Surveying Instructions (2009) Presented by: Bob Dahl, Cadastral Surveyor Division of Lands, Realty and Cadastral Survey Bureau of Land Management, Washington, DC BLM Colorado, Wyoming State Offices, Federal Surveyors, & Certified Federal Surveyors 2011 Cadastral Workshop Denver, CO March 2, 2011 March 8, 2011
What is the Manual of Surveying Instructions? (Manual) Who/What is affected?
The Manual of Surveying Instructions describes how cadastral surveys are made in conformance with statutory law and its judicial interpretation. (Section 1-3) The Director of the Bureau of Land Management has the authority to determine what lands are Federal interest lands, what lands have been surveyed, what are to be surveyed, what have been disposed of, what remains to be disposed of, and what are reserved. (Section 1-15) MANUAL
By fundamental law, upon the issuance of a patent for land by the Federal government; it is just as if the monuments, survey plat and field notes, and the laws, regulations and rules governing how to survey the land described in the patent, are attached to the face of the patent. The survey rules are spelled out in the manuals, circulars, instructions and regulations issued by the GLO and BLM. SUMMARY
Reflect orientation from disposal to retention Reflect extent of the lands filed in the U.S. official survey records Distinguish from FLPMA’s “public lands” “Public lands” has no precise meaning, without context Sections 1-2, 1-13, 1-13(n), & 1-20 TERMS Federal interest lands & public lands
Reflect post-1973 usage, e.g., o OMB Circular A-16 o Federal courts & IBLA decisions o 25 USC 176 o 43 USC 1731 note o 757 DM Sections 1-2, 1-13, 1-13(n), & 1-20 TERMS Federal interest lands & public lands
Last Common Grantor Source of Law Owner of land when boundary line is created – Federal = Federal Rules – Non-Federal = State Rules – Some States have adopted Federal rules for some situations – Federal has borrowed State rules for some situations Court of Competent Jurisdiction Sections 1-6, 1-7, & 1-7(n), & 8-57 through 8-60
1973 Edition 2009 Manual Ch. 1 - The General Plan Ch. 2 - Methods of Survey Ch. 3 - The System of Rectangular Surveys Ch. 4 - Monumentation Ch. 5 - Lost or Obliterated Corners Ch. 6 - Resurveys Ch. 7 - Special Surveys and Instructions Ch. 8 -Field Notes Ch. 9 -Plats Ch. 10 -Mineral Surveys Ch. 1 - The General Plan Ch. 2 - Methods of Survey Ch. 3 - The System of Rectangular Surveys Ch. 4 - Monumentation Ch. 5 - Principles of Resurveys Ch. 6 - Resurveys and Evidence Ch. 7 - Resurveys and Restoration Ch. 8 -Resurveys and Water Boundaries Ch. 9 -Special Instructions, Field Notes, and Plats Ch. 10 -Special Surveys and Mineral Surveys Chapters Crosswalk
Measurement Technology Change in Principal The next edition is largely technology independent. How the surveyor determines the relationship between point A and point B (measurement procedures; what instrumentation is used) will be determined for each survey from the best available technology to meet the purpose of that survey. How to measure is better handled by special instructions.
Areas of: New – Clarification - Change Coordinates as collateral evidence Closing corners Standard of evidence Controlling intermediate corners Bona fide rights and good faith location Water boundaries Mineral survey resurveys
Coordinates as Collateral Evidence Repeatable coordinates may be the best available evidence for the position of an obliterated corner. “…if the first surveyor documents how he or she obtained the coordinates so the second surveyor can, within an acceptable degree of confidence, determine the same point on the earth's surface (following in the computational footsteps) within an acceptable level of certainty, then coordinates may be the best available evidence of the corner position.” Sections 2-32 & 2-34
Fractional Sections Clarification Section 3-4 - “fixed” Sections 3-30 & 3-38 – “fixed in position by use” Section 3-89 – “reasonably fixed” Section 3-92 – “is fixed” Section 3-99 & 3-100 – “is fixed in position” Sections 3-113, 3-114, 3-117, 3-118 through 3- 124 Sections 3-4 & 3-99
Closing Corners Clarification For treatment of closing corners, the Manual will instruct the surveyor to determine how a corner was established. Sections 7-45, 7-47, & 7-48
Closing Corners Determination of the point of intersection by calculation alone is not permissible. Once a corner is monumented at the point of intersection, without gross error, it will ordinarily be accepted as control for both lines. Subsequent technical repositioning of the line closed upon will be avoided. Section 3-79
Standard of Evidence Interior Board of Land Appeals (IBLA) has altered the evidentiary standard definition for proof of a corner point. “beyond reasonable doubt” replaced with “substantial evidence” (More than a scintilla, but less than a preponderance) Existent – Obliterated - Lost corner definitions use “substantial evidence” standard. Sections 6-11, 6-17, & 7-2
Controlling Intermediate Corners What are they? Witness Corners Line Trees Witness Points Meander Corners State Boundary Monuments Junior Corners Sections 6-27 through 6-31, and 7-30
Controlling Intermediate Corners What are they? Closing Corners Crossing Closing Corners Angle Points Minor Subdivisional Corners Lot Corners Miles Posts
Witness Corners What are they? A witness corner is not the corner point but a witness to the true point for the corner. The corner point being witnessed is recovered when the witness corner is recovered. Sections 4-16 & 6-27
Witness Corners When are they used? When the true point for a corner cannot be established or occupied. Strongly encouraged to mark the true point for a corner and use Reference Monuments (RM) if possible, section 4-17. WCs are not to be confused with a Witness Point (WP).
Witness Corners Basic Rules Corners normally reestablished by double proportionate measurement will be determined by extending the line through the WC at record distance.
Witness Corner W.C. Record Distance Controlling Intermediate Corner
Witness Corners Basic Rules Corners normally reestablished by single proportionate measurement will be determined by single proportionate measurement between the WC and opposite controlling corner.
Witness Corner W.C. 1/4 Single Proportion Sec. Cor. Controlling Intermediate Corner 1/4 Cor.
Witness Corners Basic Rules Off-line WCs are normally treated like a RM, BT or BO. The true point for the corner determined from an off-line witness corner will normally be fixed by record bearing and distance.
Bona Fide Rights and Good Faith Location Before we get carried away with these doctrines: A landowner's bona fide belief concerning the boundary between his land and Federal interest land is not the same as a bona fide right that must be protected in a survey under 43 U.S.C. § 772. Although a person may have a bona fide belief, based on an understanding with a predecessor-in-interest that a fence marks a boundary, a bona fide right within the meaning of 43 U.S.C. § 772 is based on good faith reliance on evidence of the original survey. Tracy v. Rylee, 174 IBLA 239 (2008).
Water Boundaries Chapters III and VIII Chapter III includes concepts and case studies of original surveys and water boundaries. Chapter VIII includes concepts and case studies of resurveys and water boundaries. Navigability determinations. Submerged lands issues. Ownership of unsurveyed islands in meandered nonnavigable waters.
Mineral Survey Resurveys Expanded instructions for mineral survey resurveys, mineral leasing surveys, and mineral segregation surveys. Incorporates much that is in the BLM publication “Mineral Survey Procedures Guide.”
Protest & Appeal Cadastral Survey Finding of Fact – A determination of a fact supported by the evidence in the record Conclusion of Law – A inference on a question of law, made as a result of a factual showing, no further evidence being required
Protest & Appeal Cadastral Survey Question of fact: 2. An issue that does not involve what the law is on a given point. 3. A disputed issue to be resolved by the jury. 4. An issue capable of being answered by way of demonstration, as opposed to a question of unverifiable opinion.
Protest & Appeal Cadastral Survey Question of law: 1. An issue to be decided by the judge, concerning the application or interpretation of the law. 2. A question that the law itself has authoritatively answered, so that the court may not answer it as a matter of discretion. 3. An issue about what the law is on a particular point; an issue in which parties argue about, and the court must decide, what the true rule of law is. 4. An issue that, although it may turn on a factual point, is reserved for the court and excluded from the jury; an issue that is exclusively within the province of the judge and not the jury.
Protest & Appeal Cadastral Survey Legal – 1.Of or relating to law; falling within the province of law. 2.Of or relating to law as opposed to equity.
Protest & Appeal Cadastral Survey Equity – 1.Fairness; impartiality; even handed dealing. 2.The body of principles constituting what is fair and right. 3.The recourse to principles of justice to correct or supplement the law as applied to particular circumstances. 4.A right, interest, or remedy recognizable by a court of equity. 5.The right to decide matters in equity. Sections 5-21, 8-71, & 10-190, & page 269
Protest & Appeal Cadastral Survey Brief – A written statement setting out the legal contentions of a party in litigation; a document prepared by counsel as the basis for arguing a case, consisting of legal and factual arguments and the authorities in support of them
Protest & Appeal Cadastral Survey Section 9-7. Approved field notes are a part of the permanent official records of the Department of the Interior and are competent evidence in courts with the force and effect of a deposition. They rank as the deposition of a surveyor, charged under oath with the duty of noting on the spot, and at the time he or she makes the survey, the quality of the land (Mason v. Cromwell, 26 Pub. Lands Dec. 369 (1898); Kirby v. Lewis, 39 F. 66 (C.C. Ark. 1889)).
Protest & Appeal Cadastral Survey Deposition – A witness’s out-of-court testimony that is reduced to writing for later use in court for discovery purposes Section 9-7
Protest & Appeal Cadastral Survey Stare decisis – The doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation Res judicata – An issue that has been definitively settled by judicial decision Case of First Impression – A case that presents the court with issues of law that have not previously been decided in that jurisdiction
Protest & Appeal IBLA & Cadastral Survey Opinion – A court’s written statement explaining its decision in a given case, including the statement of facts, points of law, rationale, and dicta Decision – A judicial determination after consideration of the facts and the law; a ruling, order, or judgment pronounced by a court when considering or disposing of a case
Department of the Interior Office of Hearings and Appeals Interior Board of Land Appeals 43 C.F.R. Part 4, subparts E and L IBLA Manual – 11/05/10 www.oha.doi.gov
Longview Fibre Co., 135 IBLA 170 (1996) Not addressed during this presentation: evaluation of evidence timeliness
Longview Fibre Co., 135 IBLA 170 (1996) Finding of fact: Surveys 1855/56 original survey 1933/35 GLO resurvey 1969 local survey; used 1933 monuments 1976 local survey; found 1933 monuments 1983/84 local survey; found original corner position not found in 1933 1983/84 BLM field investigation 1991/92 BLM resurvey
Longview Fibre Co., 135 IBLA 170 (1996) Finding of fact: Surveys 1933 GLO resurvey proportioned 5 corners 1983 local survey found one 1855 corner not found by 1933 resurvey (an not monumented in 1933), i.e., closer control for the remaining 4 lost corners 1983 local survey 4 proportionate positions are 0.25 to 0.50 chs. from the 1933 proportioned monuments No significant distortion in measurement in the original survey or resurvey No suggestion of fraud in the 1933 resurvey
Longview Fibre Co., 135 IBLA 170 (1996) Finding of fact: Title Federal interest lands public domain BLM administrated no special designations Non-Federal lands patents issued based on 1856 plat patents issued based on 1935 plat numerous title changes between 1933 and 1983, undoubtedly relying on the 1933 lines Appellant purchased in the 1950s
Longview Fibre Co., 135 IBLA 170 (1996) Finding of fact: Use and occupancy logged over timber land logging and fire between 1855 and 1933 since 1933, private landowners relied on 1933 lines in 1987 appellant logged based on 1983 local survey lines 1992 BLM resurvey placed appellant’s logging on 3.5 acres of Federal (public domain) land administrated by the BLM
Longview Fibre Co., 135 IBLA 170 (1996) Question of law – Bona Fide Rights To protect bona fide rights, when an original corner is found it shall/must/will/should/may be accepted and a proportioned Federal authority resurvey position (no GLO resurvey monument having been set) shall/must/will/should/may be rejected?
Longview Fibre Co., 135 IBLA 170 (1996) Question of law: Gross Error & Bona Fide Rights Did the 1933 GLO surveyor commit gross error in not using a closer control corner when reestablishing lost corners by proportionate measurement? To protect bona fide rights, a closer control corner shall/must/will/should/may be used to reproportion a lost corner?
Longview Fibre Co., 135 IBLA 170 (1996) Question of law: Recordable Disclaimer of Interest Q. Are current and future land descriptions ambiguous? That is, is the 1856, 1935, 1984, 1992 line, or some combination thereof, between sections 32 and 33 intended in a land description? Between sections 28 and 29; 28 and 33; 29 and 32? A. Issue not raised.
Longview Fibre Co., 135 IBLA 170 (1996) Conclusion of law: Bona Fide Rights Q. To protect bona fide rights, when an original corner is found it shall/must/will/should/may be accepted and a proportioned Federal authority survey position shall/must/will/should/may be rejected? A. Not answered. D. BLM accepted the original corner and IBLA, without comment, adopted it
Longview Fibre Co., 135 IBLA 170 (1996) Conclusion of law: Gross Error Q. Did the 1933 GLO surveyor commit gross error in not using a closer control corner when reestablishing lost corners by proportionate measurement? A. He did not.
Longview Fibre Co., 135 IBLA 170 (1996) Conclusion of law: Gross Error IBLA concluded the 1933 GLO resurveyor did not commit gross error by, “using the SE corner of sec. 32, which he reasonably believed at that time was the nearest known corner to the south” instead of the ¼ sec. cor. of secs. 32 and 33 There is no question such reliance would have been in good faith, because official U.S. monuments were to be found on the ground
Longview Fibre Co., 135 IBLA 170 (1996) Conclusion of law: Bona Fide Rights Q. To protect bona fide rights, a closer control corner shall/must/will/should/may be used to reproportion a lost corner? A. Do not use closer control.
Longview Fibre Co., 135 IBLA 170 (1996) Conclusion of law: Bona Fide Rights In the principle of protecting bona fide rights based on the original survey, the resurvey is to avoid a rigid application of the rules of proportionate measurement. In these limited circumstances, length of time 1933 corners have been acknowledged and title transferred based on those monuments, BLM properly decided not to reproportion.
Longview Fibre Co., 135 IBLA 170 (1996) Conclusion of law: Recordable Disclaimer of Interest Q. Land descriptions may be ambiguous, i.e., which section line is intended, the 1856, 1935, 1984, 1992 line, or some combination thereof, between sections 32 and 33; between 28 and 29; 28 and 33; 29 and 32? A. Issue not raised.
James R. & Charlene K. Hasenyager, 176 IBLA 252 (2008) Finding of fact: Surveys 1893/94 original survey 1979 administrative survey 1980/83 BLM resurvey May 2005 BLM 1 st field investigation Dec. 2005 BLM 2 nd field investigation July 2006 BLM 3 rd field investigation
James R. & Charlene K. Hasenyager, 176 IBLA 252 (2008) Finding of fact: Surveys 1979 administrative survey proportioned 2 corners 1983 BLM resurvey accepted 1979’s corners Dec. 2005 BLM 2 nd field investigation found the original section corner July 2006 BLM 3 rd field investigation found the original ¼ section corner topographic calls differ significantly
James R. & Charlene K. Hasenyager, 176 IBLA 252 (2008) Finding of fact: Title Federal interest lands public domain administrated by BLM, including National Monument USFS Federal coal subsurface lease areas Non-Federal lands patents issued based on 1896 plat appellant acquired title in 2000, 2002, & 2005 State park lands patented in 1963 and 2003, surface only
James R. & Charlene K. Hasenyager, 176 IBLA 252 (2008) Finding of fact: Use and occupancy BLM record did not specifically identify the nature and extent of reliance local surveys have accepted FS/BLM monuments
James R. & Charlene K. Hasenyager, 176 IBLA 252 (2008) Question of law – Bona Fide Rights To protect bona fide rights, when an original corner is found it shall/must/will/should/may be accepted and a proportioned Federal authority survey monument shall/must/will/should/may be rejected?
James R. & Charlene K. Hasenyager, 176 IBLA 252 (2008) Conclusion of law – Bona Fide Rights Q.To protect bona fide rights, when an original corner is found it shall/must/will/should/may be accepted and a proportioned Federal authority survey monument shall/must/will/should/may be rejected? A. Yes, with these set of facts, accept the original corner. This is true when a patent is for the surface and mineral estates, and when only for the surface or mineral estate.
James R. & Charlene K. Hasenyager, 176 IBLA 252 (2008) Conclusion of law – Bona Fide Rights Decision in Longview Fibre which affirmed BLM’s decision not to overturn a 1933 resurvey, was expressly predicated on certain “limited circumstances” which do not pertain here In this case, a corrective resurvey would indisputably reestablish the original corners in their original position, not so in Longview
State of Alaska, 180 IBLA 243 (2010) Predict how IBLA will determine the ownership of land involving the - acceptance or rejection of an “erroneous” GLO or BLM resurvey monument and/or issuance or no issuance of a recordable disclaimer of interest And build the record accordingly, aka “the surveyor’s opinion” of the limits of Federal interest lands
State of Alaska, 180 IBLA 243 (2010) Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA) SOI to issue in any lands to help remove a cloud on title SOI determines that a record interest of the U.S. has terminated by operation of law or is otherwise invalid Where U.S. does claim title, challenges to such claims are brought by the Quiet Title Act
State of Alaska, 180 IBLA 243, 255 (2010) Recordable Disclaimer of Interest (43 CFR 1864) issue is one of first impression focus is on the proper scope of the analysis BLM must conduct in order to determine whether an agency’s objection presents a “sustainable rational” that the U.S. claims title to the affected lands
State of Alaska, 180 IBLA 243, 257 (2010) Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA) SOI/BLM must evaluate the evidence and arguments both supporting and refuting must provide a reasoned analysis explaining the basis for its conclusion must independently evaluate the evidence and any countervailing evidence
State of Alaska, 180 IBLA 243, 257 (2010) Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA) SOI/BLM must at a minimum assess the conflicting evidence and arguments and provide a reasoned analysis explaining the basis for its determination, despite contravening evidence BLM decisions must be supported by a rational basis which is stated in the decision and demonstrated by the administrative record accompanying the decision
State of Alaska, 180 IBLA 243, 257 (2010) Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA) A SOI/BLM decision will be set aside and remanded where the decision contains no analysis of how or why SOI reached that conclusion
State of Alaska, 180 IBLA 243, 255, 257 (2010) Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA) BLM’s decision contains no analysis or evaluation of the persuasiveness of the parties’ positions nor explains how and why, in light of the conflicting evidence, it concluded what it did BLM failed to provide any analysis or justification for its conclusion