Manual of Surveying Instructions (2009)

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 2009 Manual development – March Don Buhler becomes Bureau of Land Management (BLM) Chief Cadastral Surveyor. The Cadastral Survey Manual Committee is formed to study whether the next edition of the Manual was needed. The Committee asked Cadastral Chiefs to identify what in the 1973 Manual was (a) obsolete, (b) incorrect, and (c) missing (O-I-M). The Committee recommended it was time for the next edition. 2002, Chief Edition job announcement issued and Bob Dahl selected, May 19, along with other duties as assigned. Using Microsoft word and “track changes” the 1973 Manual becomes the base document for the next edition to which additions, deletions, and comments from the (a) O-I-M, (b) 8-three ring binders of extant post-1973 BLM policy, and (c) draft “1993 Manual” are tracked. A Sounding Board is formed for each chapter, and the specimen field notes and plats, consisting of nationwide subject matter experts. 17 presentations on the relevance of the Manual to the practice of land surveying are made to audiences consisting largely of private, county, and state land surveyors, to inform and receive feedback. 2 BLM internal technical reviews were conducted with over 1700 edits and comments received. Interior Board of Land Appeals (IBLA) comments were received. The Department of the Interior (DOI), Washington Office, Office of the Solicitor Divisions of (a) Land and Water, (b) Parks and Wildlife, (c) Indian Affairs, (d) Mineral Resources, and (e) General Law edits and comments received. 2 Professional editors read and edited entire Manual, a Visual Information Specialist prepared the figures, and a professional indexer prepared the index. The Manual was approved by the Director, BLM and the DOI Assistant Secretary, Land and Minerals Management. Currently there are 210 BLM cadastral surveyors and 50,000 Registered surveyors. Most of the country has, is, and always will be surveyed by private and other non-Federal surveyors. The Manual was printed (a) for BLM internal use by the Government Printing Office (GPO) and (b) for all others in partnership with the American Congress on Surveying and Mapping (ACSM) by the Public Land Survey System Foundation (PLSSF). The Manual can be characterized as a collection of general instructions: a) chasing the law and b) stating the “law” (the rules). The BLM does not make the Manual authoritative to the private practice of land surveying in a State. That is done by the State legislature, State administrative rules, State attorney general opinions, and/or State judicial action. In such cases the intended audience of the Manual, or portions therein, is anyone practicing land surveying in the State. March 8, 2011

Manual of Surveying Instructions? (Manual)
What is the Manual of Surveying Instructions? (Manual) Who/What is affected? It is up to each surveyor to determine what force the Manual has in their State and for each survey they are involved with. In the BLM, the final technical determination is made by the authorized official delegated with responsible charge of an official survey, i.e., the BLM State Office Chief Cadastral Surveyor. The BLM Chief Cadastral Surveyor has final interpretation of the Manual. The Manual is part of a Covenant between the Federal Government and its citizens. Why is the Manual relevant to the Surveyor of Private, Tribal, and State Land in a State? The Manual are the survey rules for locating the boundaries and corners of: Lands with public domain status, including Indian trust lands; Federal lands that have never gone to patent; and Federal acquired lands and non-Federal lands, described by a Federal patent or based upon a Federal patent description; typically the Manual is the rules for locating the exterior boundary of the described lands. There are two origins of boundary line creation: (1) Federal and (2) Non-Federal (private) Description example: “east-half” “west-half” - a) Federal; or b) State? Bona fide – Federal authority surveyors must work with “the where” first and just “the who” or “the what” as they pertain to the first. Role of Interior Board of Land Appeals; Delegation of Authority; Rule changes are prospective in application and generally are not applied retrospectively. The Manual has implications to: Federal Authority (Official) Surveys; State Authority (Local) Surveys; Administrative Surveys; Registered Professional Land Surveyors; Cadastral Surveyors; Landowners; Legal Profession; Title Industry; Energy Industry; Others. There are three types of surveys: 1) Federal authority; 2) State authority; and 3) no authority. There are two sets of foot steps to follow and one set to leave: (1) the legal and (2) the original surveyor, and (3) computational. The intended audience of the Manual is the Federal authority surveyor including: The field surveyor; The special instructions writer; The survey reviewer; The draftsman; and The Cadastral Chief.

MANUAL 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) The Manual - Purpose and Scope of the Manual Section The Manual of Surveying Instructions describes how cadastral surveys are made in conformance with statutory law and its judicial interpretation. Section 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.

SUMMARY 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. SUMMARY 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, the laws, regulations, and rules governing how to survey the land described in the patent, are attached to the face of the patent. Cragin v. Powell, 128 U.S. 691 (1888). The survey rules are spelled out in the manuals, circulars, instructions and regulations issued by the General Land Office and its successor the Bureau of Land Management. If later a boundary location becomes unclear the Manual is the guidance (the rules) governing the relocation of the corners and boundaries in conformance to the controlling monuments, survey plat(s), field notes, policies, regulations and laws. The survey rules are spelled out in the manuals, circulars, instructions and regulations issued by the GLO and BLM.

Federal interest lands & public lands
TERMS Federal interest lands & public lands 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 Terms: Federal interest lands & public lands. Section 1-2. FN 1. The term “Federal interest lands,” rather than “public lands,” is used throughout this edition of the Manual to reflect this change in orientation from disposal to retention and management of its land by the Federal Government, as well as to articulate the extent of BLM’s survey authority. Federal interest lands include, but are not limited to, public lands that have never left Federal ownership. Section “Federal lands” or “Federal interest lands,” {Is taken in part from (a) OMB Circular A-16 themes of “Federal Land Ownership Status" "Public Land Conveyance (patent) Records" and "Cadastral", (b) United States v. Alaska, 503 U.S. 569 (1992), (c) United States v. State Investment Co., 264 U.S. 206, 212 (1924), citing Lane v. Darlington, 249 U.S. 331, 333 (1919), (d) 25 U.S.C. 176, (e) 43 U.S.C note, and (f) DOI DM 757.} as used in this Manual, refer to any lands in which the United States holds title, an estate, or other interest. Section 1-13(n). Section 2 of Title 43 of the United States Code assigns responsibility to the Secretary to consider for survey and sale that which the United States acquired from another sovereign and determine what was properly public lands of the United States {The term “public land” as a phrase in and of itself no longer has a precise meaning without reference to a definitional section or its context in a statute . See Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 548 (1987).} and what was properly related to "private land claims" (e.g., grants from the Spanish Crown or Mexican Government). Section The Act of April 25, 1812 (2 Stat. 716; 43 U.S.C. 2, 6, 12, 14, and 17). FN 4. FN 4. “Public Lands” as referenced in 43 U.S.C. 2 is different from the “public lands” as defined in the Federal Land Policy and Management Act of 1976, as amended, 43 U.S.C et seq. The “public lands” referenced in 43 U.S.C. 2 include land owned by the United States that was part of the original public domain, not just those lands now managed by the BLM. Sections 1-2, 1-13, 1-13(n), & 1-20

Federal interest lands & public lands
TERMS Federal interest lands & public lands Reflect post-1973 usage, e.g., OMB Circular A-16 Federal courts & IBLA decisions 25 USC 176 43 USC 1731 note 757 DM Terms: Federal interest lands & public lands. Section “Public Lands” as referenced in 43 U.S.C. 2 is a broader category than the “public lands” as defined in the Federal Land Policy and Management Act of 1976, as amended (FLPMA), 43 U.S.C et seq. FLPMA “public lands” are limited to “any land and interest in land owned by the United States within the several states and administered by the Secretary of the Interior through the Bureau of Land Management, without regard to how the United States acquired ownership, except (1) lands located on the Outer Continental Shelf; and (2) lands held for the benefit of Indians, Aleuts, and Eskimos.” 43 U.S.C. 1702(e). The “public lands” referenced in 43 U.S.C. 2, originally passed in 1812 (2 stat. 716), by contrast, includes land owned by the United States that was part of the original public domain, not just those lands managed by the BLM. See, e.g., Thompson v. United States, 308 F.2d 628, 631 (9th Cir. 1962) (adopting, with approval, definition articulated in Barash v. Seaton, 256 F.2d 714, 715 (D.C.Cir. 1958), holding that, unlike public land, lands acquired for a particular purpose are not open to mineral location, unless specifically identified as such); see also Borax Consolidated v. City of Los Angeles, 296 U.S. 10, (1935) (explaining the different grounds upon which authority to survey may be based, including Congressional direction to survey to preserve the title granted by Mexico to certain parties prior to the Treaty of Guadalupe-Hidalgo (9 Stat. 922), by which the lands in question entered the public domain, as distinct from the rights of the states to certain lands upon entry to the Union.) The General Land Office (GLO), then the BLM, as successor agency to the GLO, would have surveyed the public domain lands before they left Federal ownership – in fact, in order that they could leave Federal ownership. This survey would have been carried out according to instructions issued by the Secretary of the Interior acting through the GLO (or BLM) – instructions which were precursors to, and incorporated into each successive edition of the Manual. Therefore, any survey of Federal interest lands, whether still public, or reserved, or subsequently acquired after having once been public domain, in order to be authoritative, would necessarily have to be carried out in accordance with the standards articulated in the Manual. It is by other authorities and OMB Circular No. A-16, hereinafter described, any surveys of Federal interest lands, acquired but having never been public domain, in order to be authoritative, would necessarily have to be carried out in accordance with the standards articulated in the Manual, where applicable. The term “Federal interest lands” is used in the Manual to capture these concepts. Sections 1-2, 1-13, 1-13(n), & 1-20

Court of Competent Jurisdiction
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 Chapter I. The General Plan. The Manual. Source of Law, Sections 1-6, 1-7 (page 3), and 1-7(n) (page 18), and in the water boundary context sections 8-57 through 8-60. Rule of Last Common Grantor - Within the Public Land Survey System (PLSS) states, every parcel boundary line that can trace its origin to a Federal patent or equivalent must be surveyed by the procedures and principles defined in the Manual. Every parcel of Federal interest lands in all 50 states may be surveyed based on Manual procedures and principles. Every parcel boundary that can trace its origin to a private/non-Federal contract must be surveyed by the procedures and principles defined by State law. Many States have incorporated the Manual by statute, regulation, &/or case law into their boundary location elements of intent, control, and law. S1/2 section 3 - Source of Law – Grantor - Intent Sections 1-6, 1-7, & 1-7(n), & 8-57 through 8-60

Chapters Crosswalk 1973 Edition 2009 Manual Ch. 1 - The General Plan
Ch Methods of Survey Ch The System of Rectangular Surveys Ch Monumentation Ch Lost or Obliterated Corners Ch Resurveys Ch Special Surveys and Instructions Ch. 8 - Field Notes Ch. 9 - Plats Ch Mineral Surveys Ch The General Plan Ch Methods of Survey Ch The System of Rectangular Surveys Ch Monumentation Ch Principles of Resurveys Ch Resurveys and Evidence Ch Resurveys and Restoration Ch. 8 - Resurveys and Water Boundaries Ch. 9 - Special Instructions, Field Notes, and Plats Ch Special Surveys and Mineral Surveys Chapter II – Hopefully teachers of future surveyors will teach the Public Land Survey System (PLSS) Datum to their students. There is a detailed sections reference from the 1973 Manual to 2009 Manual.

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. The focus of the Manual is on “how to” determine what is point A and point B, and NOT on how to develop the spatial relationship between point A and point B. Section – Policies are prospective in application.

New – Clarification - Change
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 Closing corners Standard of evidence Controlling intermediate corners Bona fide rights and good faith location Water boundaries - 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. Noted subjects elaborated on include navigability determinations; river movement and submerged lands issues; ownership of unsurveyed islands in meandered nonnavigable waters. Mineral survey resurveys The PLSS is evolving. Never before has the PLSS had 150 year old GLO surveys with over 100 years of improvements up to the boundaries; or 100 years of river movement after the patent survey with 75 years of valuable improvements; or 90 year old erroneous GLO 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.” Advancement in Technology, enabling quick generation of precise and repeatable coordinates, has lead to many corner positions being “witnessed” by coordinates. Section 2-34. Presumably any point can be reestablished once its coordinates have been determined. However, great care must be exercised to ensure that the original coordinate pairs were produced by a process that is repeatable within a quantifiable accuracy standard. Repeatable coordinates may provide collateral evidence of a corner position; may constitute the best available evidence of a corner position; and in some cases, may constitute substantial evidence of the position of an obliterated corner. Following in the computational footsteps. Obliterated corner not a lost corner. Sections 2-32 & 2-34

Fractional Sections Clarification
Section “fixed” Sections 3-30 & 3-38 – “fixed in position by use” Section 3-89 – “reasonably fixed” Section 3-92 – “is fixed” Section 3-99 & – “is fixed in position” Sections 3-113, 3-114, 3-117, through 3-124 Section 7-45 (page 172). In older surveys the usual policy was to establish closing corners without a retracement of the line closed upon. The corners were established with a tie in one direction only and set at record bearing. In these cases, a recovered closing corner not actually located on the line that was closed upon will determine the direction of the closing line, but not its legal terminus. The correct position is at the true point of intersection of the two lines. Closing corners and other corners at an intersection of two lines or at the termination of one line on another are established after a retracement of the line closed upon. Section 7-47 (page 173). A closing corner established without a retracement of the line closed upon ordinarily is not used as a control corner in restoring a lost corner of the line closed upon. However, where an obviously careful retracement of a line has been made and the field notes state clearly that new monuments were set at the true points of intersection, the monuments become the best available evidence of the position of the line. In such a case the closing corners will exercise control for both measurement and alinement of the line to the same extent as corners of a junior survey (section 7-23). Section 7-48 (page 173). If an obviously careful retracement of the two intersecting lines has been made, and the field notes state clearly that a monument (corner of minimum control, closing corner, crossing closing corner, or point of intersection) was set at the true point of intersection, the monumented corner is the best available evidence of the position of both lines. As such, the monumented corner will exercise control for both measurement and alinement of both lines . If a retracement of the intersected line indicates a closing corner purportedly set at the true point of intersection is substantially off that line, it will be moved to the intersection position and the existing monument will be dealt with as described in section 7-45. 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. Section 7-45 (page 172). In older surveys the usual policy was to establish closing corners without a retracement of the line closed upon. The corners were established with a tie in one direction only and set at record bearing. In these cases, a recovered closing corner not actually located on the line that was closed upon will determine the direction of the closing line, but not its legal terminus. The correct position is at the true point of intersection of the two lines. Closing corners and other corners at an intersection of two lines or at the termination of one line on another are established after a retracement of the line closed upon. Section 7-47 (page 173). A closing corner established without a retracement of the line closed upon ordinarily is not used as a control corner in restoring a lost corner of the line closed upon. However, where an obviously careful retracement of a line has been made and the field notes state clearly that new monuments were set at the true points of intersection, the monuments become the best available evidence of the position of the line. In such a case the closing corners will exercise control for both measurement and alinement of the line to the same extent as corners of a junior survey (section 7-23). Section 7-48 (page 173). If an obviously careful retracement of the two intersecting lines has been made, and the field notes state clearly that a monument (corner of minimum control, closing corner, crossing closing corner, or point of intersection) was set at the true point of intersection, the monumented corner is the best available evidence of the position of both lines. As such, the monumented corner will exercise control for both measurement and alinement of both lines . If a retracement of the intersected line indicates a closing corner purportedly set at the true point of intersection is substantially off that line, it will be moved to the intersection position and the existing monument will be dealt with as described in section 7-45. 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 (page 59). Section 7-26 (page 170). In some older surveys, the policy was to establish junior corners without a careful retracement of the senior line. In these cases, a recovered junior corner not actually located on the line that it was intended should not control the line for measurement or alinement. The new junior corner will be positioned in a cardinal direction, north or south on a latitudinal line, or, east or west on a meridional line, from the original junior corner onto the line intended. These new junior corners are established after a retracement of the line. Section 7-30 (page 170). A junior corner established without a retracement of the senior line ordinarily is not used as a control corner in restoring a lost senior corner. However, where an obviously careful retracement of the senior line has been made and the field notes state clearly that new monuments were set on the line, the monuments become the best available evidence of the position of the senior line. In such a case the junior corners will exercise control for both measurement and alinement of the line to the same extent as closing corners (section 7-41). 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. Section An existent corner is one whose original position can be identified by substantial evidence of the monument or its accessories, by reference to the description in the field notes, or located by an acceptable supplemental survey record, some physical evidence, or reliable testimony. A corner is existent (or found) if such conclusion is supported by substantial evidence. The substantial evidence standard of proof is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence is more than a scintilla of evidence but less than a preponderance of the evidence. Even though its physical evidence may have entirely disappeared, a corner must not be regarded as lost, but as obliterated, if its position can be recovered through the reliable testimony of one or more witnesses who have dependable knowledge of the original position. Later marks or records which tied to the original monument or its accessories when still present, may identify the position of an obliterated corner. Such evidence should provide a direct relationship to some identifying feature described in the original survey record. Section An obliterated corner is an existent corner where, at the corner’s original position, there are no remaining traces of the monument or its accessories but whose position has been perpetuated, or the point for which may be recovered, by substantial evidence from the acts or reliable testimony of the interested landowners, competent surveyors, other qualified local authorities, or witnesses, or by some acceptable record evidence. An obliterated corner position can be proven by substantial direct or collateral evidence. When both categories of evidence exist, direct evidence will be given more weight than collateral evidence. A position that depends upon the use of collateral evidence can be accepted only as duly supported, generally through proper relation to known corners, and agreement with the field notes regarding distances to natural objects, stream crossings, line trees, and off-line tree blazes, etc., or reliable testimony. Collateral evidence must include some component that relates to the position of the original survey corner, including measurement evidence, historical record, testimony, or any reasonable tie. Section 7-2. A lost corner is one whose original position cannot be determined by substantial evidence, either from traces of the original marks or from acceptable evidence or reliable testimony that bears upon the original position, and whose location can be restored only by reference to one or more interdependent corners. Thus, if substantial evidence of the position of the original corner exists, it is an existent or obliterated corner. This position shall be employed in preference to applying the rule that would be proper only in the case of a lost corner. In addition, once a corner is considered lost, it is the surveyor’s responsibility to assure that the restoration method and the restored position comply with the statutory protection of bona fide rights requirements delineated in 43 U.S.C. 772 and 773 and as described in this Manual. 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 (pages 152 & 153). Section 7-30 (page 170). Section – Policies are prospective in application. 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 Section 3-79 (page 59) – formerly crossing closing corner per 1973 Manual.

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 (page 107) and 6-27 (page 152). 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 WCs are not to be confused with a Witness Point (WP). Sections 4-16 (page 107) and 6-27 (page 152). Reference Monuments, section 4-17 (page 107).

Witness Corners Basic Rules Corners normally reestablished by double proportionate measurement will be determined by extending the line through the WC at record distance. Section 6-27 (page 152).

Controlling Intermediate Corner
Witness Corner W.C. Record Distance Direct Evidence of Existent and Obliterated Corners Witness Corners – section 6-27. For corners reestablished by double proportionate measurement, the true point for the corner will be determined by extending the line through the witness corner at record distance.

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. Section 6-27 (page 152).

Controlling Intermediate Corner
Witness Corner Single Proportion W.C. 1/4 Sec. Cor. Sec. Cor. 1/4 Cor. Direct Evidence of Existent and Obliterated Corners Witness Corners – section 6-27. For corners reestablished by single proportionate measurement, the true point for the corner will be determined by single proportionate measurement between the witness corner and the opposite controlling corner. Thus, in single proportionate measurement, the record bearing and distance is modified, and the witness corner becomes an angle point of the line. This is consistent with the Advanced Cadastral Survey and Advanced Rectangular Cadastral Survey training materials, the 1985 Cadastral Survey Plat Approval Seminar, and 1987 Cadastral Survey Plat Review Committee interpretation.

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. Section 6-27 (page 152).

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. § 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). Section Cases will arise where lands have been occupied in good faith, but whose boundaries as occupied disagree with the position of the legal subdivision called for in the description. A landowner’s bona fide belief concerning the boundary location is not the same as a bona fide right within the meaning of 43 U.S.C 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. Obviously, under these facts the rule of good faith as to location cannot apply. This is not a survey issue but a title issue and relief must be sought through the process of amended entry, correction of conveyance document under 43 U.S.C. 1746, quiet title action, tentative approval relinquishment, or interim conveyance reconveyance or relinquishment to cover the legal subdivisions actually earned, rather than through an alteration of the position of established lines. This is a process of adjudication rather than one of resurvey. A case of this character should be regarded as erroneous location in precisely the same manner as if the question of resurvey were not involved. The amendment of entries is a matter for adjudication by the BLM after the resurvey has been accepted and the plats officially filed. Section Collateral Evidence. Section Administrative Survey.

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. Case studies.

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.” Sequential conveyances v. simultaneous conveyances. Gaps and Overlaps not of record.

Certified Federal Surveyors Website
BLM Manual Website Survey Manual Website Certified Federal Surveyors Website DOI OHA IBLA

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 and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. Facts: Land patented based on 1880 survey. A 1930 GLO resurvey reestablishes a lost corner. In 2012 the original corner position (the same corner determined lost and proportioned in 1930) is found. What would IBLA’s conclusion of law be? Inference: 1. A conclusion reached by considering other facts and deducing a logical consequence from them. 2. The process by which such a conclusion is reached; the process of thought by which one moves from evidence to proof. Legal Conclusion – A statement that expresses a legal duty or result but omits the facts creating or supporting the duty or result. Section 6-55.

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. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA). Question of fact: 1. An issue that has not been predetermined and authoritatively answered by the law. 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 in a jury trial or by the judge in a bench trial. 4. An issue capable of being answered by way of demonstration, as opposed to a question of unverifiable opinion. 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 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. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA). Question of fact: 1. An issue that has not been predetermined and authoritatively answered by the law. 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 in a jury trial or by the judge in a bench trial. 4. An issue capable of being answered by way of demonstration, as opposed to a question of unverifiable opinion. 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 –
Of or relating to law; falling within the province of law. Of or relating to law as opposed to equity. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA).

Protest & Appeal Cadastral Survey Equity –
Fairness; impartiality; even handed dealing. The body of principles constituting what is fair and right. The recourse to principles of justice to correct or supplement the law as applied to particular circumstances. A right, interest, or remedy recognizable by a court of equity. The right to decide matters in equity. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA). Equity and the Manual - Sections 5-21 (5-13 in 1973 Manual), 8-71, and , and page 269. Sections 5-21, 8-71, & , & page 269

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 Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA).

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)). 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)).

Deposition – A witness’s out-of-court testimony that is reduced to writing for later use in court for discovery purposes 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)). Section 9-7

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 Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA). Stare decisis et non quieta movere. Literally, to stand by previous decisions and not to disturb settled matters. To adhere to precedents, and not to depart from established principles. Res judicata pro veritate accipitur. A matter adjudged is taken for truth.

IBLA & Cadastral Survey
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 (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA).

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 Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA).

Longview Fibre Co., 135 IBLA 170 (1996)
Not addressed during this presentation: evaluation of evidence timeliness Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

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 Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996). GLO surveyed in 1855; approved January 19, 1856. GLO resurveyed in 1933; approved January 7, 1935. Local surveyors in 1969 and 1976 found the 1933 monuments. Registered private surveyor surveyed in 1983 and 1984, and filed with the county surveyor on May 24, 1984. BLM resurveyed in 1991; approved May 22, 1992.

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 Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Pages 182 and 183 – fraud.

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 Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Page 183.

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 Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

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? Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Section 6-51.

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? Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

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? Issue not raised. Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

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? Not answered. D. BLM accepted the original corner and IBLA, without comment, adopted it Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Page 182.

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? He did not. Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Gross error, page 183. “In some instances, bona fide rights are protected only where BLM departs from a rigid application of resurveying principles to ensure that long-accepted survey lines are not disturbed, so that property boundaries are stabilized and title is secured.”

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 Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Gross error, page 183. “In some instances, bona fide rights are protected only where BLM departs from a rigid application of resurveying principles to ensure that long-accepted survey lines are not disturbed, so that property boundaries are stabilized and title is secured.” Good faith reliance, page 184. “Further, there is no question that such reliance would have been in good faith since official United States monuments, representing the official location of the original 1855 corners (as officially determined by Gould in 1933 by proper legal methods) were to be found on the ground.”

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? Do not use closer control. Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

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. Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Page 184.

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? Issue not raised. Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

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 1st field investigation Dec BLM 2nd field investigation July 2006 BLM 3rd field investigation Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): James R. & Charlene K. Hasenyager, 176 IBLA 252 ( December 18, 2008). GLO surveyed in 1893/94; approved November 4, 1896. 1979 administrative survey, Forest Service. BLM resurveyed in 1980/83; accepted November 7, 1983.

176 IBLA 252 (2008) Finding of fact: Surveys 1979 administrative survey proportioned 2 corners 1983 BLM resurvey accepted 1979’s corners Dec BLM 2nd field investigation found the original section corner July 2006 BLM 3rd field investigation found the original ¼ section corner topographic calls differ significantly Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

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 Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Page 183.

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 Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): Longview Fibre Co., 135 IBLA 170 (April 10, 1996); James R. & Charlene K. Hasenyager. 176 IBLA 252 (December 18, 2008); State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

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? Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): James R. & Charlene K. Hasenyager, 176 IBLA 252 ( December 18, 2008). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

176 IBLA 252 (2008) Conclusion 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? 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. Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): James R. & Charlene K. Hasenyager, 176 IBLA 252 ( December 18, 2008). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

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 Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): James R. & Charlene K. Hasenyager, 176 IBLA 252 ( December 18, 2008). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Page 264.

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 Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA). Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be?

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 Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA). Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Headnotes. Page 254. Quiet Title Act, 28 U.S.C. 2409a. Section 5-20.

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 Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA). Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Page 254, 43 CFR Page 256. Sustainable – capable of being sustained. Sustain – to support as true, legal or just; to allow or admit as valid; to support by adequate proof, establish, corroborate, confirm.

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 Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA). Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Headnotes and page 257.

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 Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA). Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Headnotes and page 257.

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 Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA). Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Headnotes and page 257.

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 Recordable Disclaimer of Interest (43 USC 1745; 43 CFR 1864; sec. 315 of FLPMA). Protest and Appeal – Federal Authority Survey/Official Survey/Cadastral Survey. Department of the Interior (DOI), Office of Hearings and Appeals (OHA), Interior Board of Land Appeals (IBLA): State of Alaska, 180 IBLA 243 (December 16, 2010). Based on the finding of facts, predict the conclusion of law. What would IBLA’s conclusion of law be? Page 254, 43 CFR Section 5-12. Section – “. . . to do justice.” Knight v. United States Land Association, 142 U.S. 161, 181 (1891).

Manual of Surveying Instructions (2009)

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