March 17, 2009

The Next Edition of the Manual of Surveying Instructions and the Modern Cadastre Presented by: Dave Morlan, BLM Chief Cadastral Surveyor Nevada State Office, Reno, NV and Bob Dahl, BLM Cadastral Surveyor Division of Lands, Realty & Cadastral Survey Washington, D.C Nevada Association of Land Surveyors/Arizona Professional Land Surveyors Conference & Technology Exposition Las Vegas, NV March 17, 2009

Cadastre – Cadastral – Cadastral Survey Agenda What is the Manual of Surveying Instructions? Why is the Manual relevant to Private, County, and State Surveyors in Nevada?

Scope of the project -Technical project nested in a web of administration and legal processes Agenda What is the process? How are we going about it? Where are we to date?

OHA → ↑ IBLA IBIA IBCA

Cadastral Presence At the BLM State Office level – Cadastral is 1 of 45 Programs, and is considered “support” Within BLM Nevada – Cadastral has 2% of the total State Office personnel

What is the Manual of Surveying Instructions? (Manual) Whom/What is affected?

Why is the Manual Relevant to the Private, County, and State Surveyor in Nevada?

NEVADA REVISED STATUTES Title 26. Public Lands Chapter 329. Perpetuation of Corners N.R.S. § The Board shall prescribe the information required for recording corner records

NEVADA ADMINISTRATIVE CODE Chapter 329. Perpetuation of Corners N.A.C. § Corner Records 5. PLSS corners must be identified pursuant to the provisions of the Manual, which is hereby adopted

SUPREME COURT OF NEVADA Backer v. Gowen, 73 Nev. 34 (1957) As a matter of law, the trial court recognized that the original monument controls In case of material disagreement between the particular evidence in question and the record calls, Manual is referenced

SUPREME COURT OF NEVADA Backer v. Gowen, 73 Nev. 34 (1957) Reestablish a lost interior section corner by double proportionate measurement as defined by the Manual

SUPREME COURT OF NEVADA Hanneman v. Downer, 110 Nev. 167 (1994) Substantial evidence supports District court’s determination that the surveyor failed to meet the requisite standard of care Monuments prevails over calls and distances

SUPREME COURT OF NEVADA Hanneman v. Downer, 110 Nev. 167 (1994) “corner” “monument” “accessories” “field notes” are defined per the Manual Manual provides the controlling methodology for the survey

UNITED STATES CODE Title 43 Public Lands § 2 The Secretary of the Interior or such officer as he may designate (BLM) shall perform all executive duties appertaining to the surveying and sale of the public lands of the United States

Title 43 U.S.C. §§ , 772, 773, 1737(c) Other Federal Laws – Containing Survey Rules – The Federal Survey Rules

UNITED STATES CODE Title 25 Indians § 176 Whenever it becomes necessary to survey any Indian lands, the same shall be surveyed under the direction and control of the BLM And as nearly as may be in conformity to the rules and regulations under which other public lands are surveyed

INTERIOR BOARD OF LAND APPEALS Howard Vagneur, 159 IBLA 272 (2003) 1) BLM is authorized to resurvey the corners and lines of government surveys 2) BLM Survey Manual defines a resurvey 3) Manual defines “existent” “obliterated” and “lost” corners

4) Manual provides guidance to surveyors on how to base a resurvey on the “best available evidence” INTERIOR BOARD OF LAND APPEALS Howard Vagneur, 159 IBLA 272 (2003) 6) An accurate retracement and reestablishment of the lines of the original survey 5) BLM Official Surveys are presumed regular

It is settled law that the United States may survey what it owns and thereby establish and reestablish boundaries, but what the government does in this regard is for its own information and cannot affect the rights of owners on the other side of an existing boundary. United States v. State Investment Co., 264 U.S. 206, 212 (1924), citing Lane v. Darlington, 249 U.S. 331, 333 (1919). United States Supreme Court

The Manual of Surveying Instructions describes how cadastral surveys of the public lands are made in conformance to statutory law and its judicial interpretation. (1973 Manual § 1-1.) It is within the province of the Director to determine what are public 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. (1973 Manual § 1-11.) MANUAL

What percentage of Nevada has been surveyed by the PLSS?

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 later by the BLM. SUMMARY

1973 Manual Next Edition Ch. 1 - The General Plan Ch. 2 - Methods of Survey Ch. 3 - System of….. 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 - System of….. Ch. 4 - Monumentation Ch. 5 - Principles of Resurveys Ch. 6 - Resurveys and Evidence Ch. 7 - Resurveys and Restoration Ch. 8 -Water Boundaries Ch. 9 -Special Instructions…….. Ch. 10 -Special Surveys and Mineral Surveys Chapter Crosswalk

Areas of: Change – Clarification - Addition Water boundaries Standard of evidence Coordinates as collateral evidence Technology Mineral survey resurveys Closing corners Bona Fide Rights & Good Faith Location

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.

Standard of Evidence  Interior Board of Land Appeals (IBLA) has altered the evidentiary standard 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.

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.”

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.

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.”

Closing Corners Policy Clarification For treatment of closing corners, the Manual will instruct the surveyor to determine how an existing closing corner was established. A corner, no matter what it has been called in the official record, (closing corner, junior corner, crossing closing corner, intersection point, or corner of minimum control) established during an obviously careful retracement of the intersected, senior, or existing line, can be accepted in place, and may be an angle point in the intersected, senior, or existing line.

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).

next_edition.html next_edition.html BLM Nevada PLSS/GCDB Records: Federal Land Patents: Next Edition Website

March 17, 2009