As stemming from the Center of Section posts below, I have a question for the experts on this board to ponder: Does a state licensing board have the authority to interpret boundary law and/or the BLM Manual? Any supporting evidence to back up your answer?
Our board investigator when necessary hires Land Surveyors to look at proper practices and whether a surveyor has performed proper due diligence and legal procedures as consultants to the board.
Oklahoma State Satutes regarding our "minimum standards":
245:15-13-2. Minimum Standards for Land Surveying
Surveys based on the United States Public Land Survey System shall be referenced to original or properly restored corners. The appropriate Bureau of Land Management Manual of Surveying Instructions shall be used as a guide for the restoration of lost or obliterated corners and subdivision of sections into aliquot parts.
In regards to your question:
I would venture to say that the only time the Oklahoma State Board of Licensure would attempt to interpret any boundary law or the BLM manual would be if a survey was being investigated for being fraudulent or poorly executed. I cannot remember any surveyors being raked over the coals for disagreeing with other's corners. Our State Board governs our business and practices and stays out of any boundary determinations.
However, it would probably depend on the amount of supporting evidence that was discovered in the execution of the survey. Many surveyors have been determined to not meet our minimum standards (and fined, or worse) by not discovering evidence that would probably have an effect on the results of their survey.
The question is probably more philosophical than anything. If you think about it, we all have to interpret the law to at least some extent. I can't drive without knowing some of the laws of the road, and I can't practice surveying without knowing some of the laws that govern surveying. I think the State Board must have an even higher level since they must make bylaws rules governing your license. Also, I believe they do bring in consultants and legal experts as needed.
You know you have to record a plat and what must be on it in your state and the Board knows if you have to record a plat and what must be in it in your state (to put it simply).
Simple answer.. NO!!!!!!!!!!! They regulate the practice, no matter which state...only the courts can interpret boundary law
In the CFedS course it was emphasized that State law supersedes BLM policy and the manual.
I'm not an expert, but I'll give it a shot.
The state board is tasked with addressing complaints about the professionals it has given licenses. They are required to be able to give rational and impartial opinion of the complaint. Or as others have said, retain the judgement or opinion of other professionals.
If your state requires you to adhere to the BLM manual, I would say that the board should be required interpret that as it relates to the complaint.
I don't really have any supporting evidence; other than our board has absolved more cases than it has prosecuted.
Douglas Casement, PLS
In regard to their functions as board members, theoretically no. But one has to imagine it might color their decision seeing a particularly inept interpretation (in their own view, which might be incorrect).
In NY there is the law governing the profession, then there are the regulations from the commissioner and board of education who are tasked with interpreting the actual law into said regulations, then there is the board (and various subdivisions of it) who are tasked with determining if individual licensees have violated the regulations.
The law and the regulations do not address substantive legal boundary determinations, only some of the practices that would lead to the ability to form a reasonable opinion on said substantive issues. For instance the legislature can demand continuing education; then the board of education interprets how much, then the board of professions determines if one complied.
Only a court can declare negligence on those issues and they can use violations of the regulations as evidence of negligence but not as absolute proof of it.
No.
From the MI occupational code act:
339.307 Board; creation within department; duties; attendance of board member at informal
conference; assisting department.
Sec. 307. (1) Each board created by this act shall be created within the department.
(2) A board's duties shall include the interpretation of a licensure or registration requirement of an article, and, if necessary, the furnishing of aid in an investigation conducted under article 5. At the discretion of the board, a member of that board may attend an informal conference conducted under section 508. A board shall assist the department in the implementation of this act.
Article 5 pertains to lodging or filing a complaint for alleged violations of the Act.
Finally, the board in MI consists of 5 professional surveyors, 1 professional engineer who is a member of the board of professional engineers, and 1 architect, who is a member of the board of architects. The board has no stated authority to render any opinion on actual boundary interpretation, or anything outside of the confines of the Act itself.
A state board does not have the authority to settle disputes among surveyors and/or landowners. What they can do is investigate whether a surveyor is negligent, is acting in a way that does not protect the public or is doing some other activity that can result in the loss of his/her license. A licensing board can investigate a land surveyor for negligent work. There are situations where there can be differing professional opinions without a surveyor being negligent. However, a surveyor that continuously ignores the BLM Manual, state law, professional practices, etc. could eventually face the loss of his/her license. It could be something lighter like a temporary suspension or fine. (State Boards usually have a newsletter where discipline actions are published.) The surveyor being investigated can hire their own attorney and surveying expert to oppose the Board's expert. The state's administrative law would apply. Depending on the state, that could mean a hearing before an administrative law judge, then a court, and then an appeals court.
The other way a surveyor could get into trouble is if a client is harmed by their work. The client would have to prove the surveyor was negligent based usually on some average prudent surveyor standard.
So, in my opinion, what does that mean for rejecting corners? Times change. What I was taught in the 70s, the true legal center 1/4 is always the intersection, is now wrong. It was probably wrong all along. The rejection of long existing monuments for no reason other than your expert measurements show it's not to today's standards will become gross negligence, and harm the client and the public.
Evelyn
> As stemming from the Center of Section posts below, I have a question for the experts on this board to ponder: Does a state licensing board have the authority to interpret boundary law and/or the BLM Manual? Any supporting evidence to back up your answer?
Of course not. The Board is an "administrative" body charged with administering the licensing laws, nothing more. They have specific charge, as a function of "regulation," to administer a statutory requirement which sets minimum qualifications for licensure and renewals. Among those statutes are certain professional obligations for the licensee to uphold which also include response to violations of civil and criminal nature.
Our board, in keeping with the majority of other states, isn't made up of surveyors. It's a board of combined surveyors, engineers (of various fields) and public members. We actually only have one surveyor and one joint licensee (engineer/surveyor) on the board. I'd have a real problem if they were charged with setting the industry standards, and were placed in the role of judge, jury and executioner for all professional opinions rendered by licensees.
Remember your basic civics class. There are three branches of government for a reason; the legislative, judicial, and administrative. They are "separated" for a reason. In order to determine "negligence," for example, a civil court must determine that there 1) was an injury, 2) caused by someone who had a duty, and 3) that the failure caused the injury. That's a civil process, not an administrative process. In order to properly determine the location of a boundary, one must, 1) gather the record, physical, and testimonial evidence, 2) determine the facts from the evidence, and 3) apply an appropriate legal principle to the facts. That's also a civil process, not an administrative process.
Once a civil court has found a licensed professional guilty of a crime or negligent, then the board may have authority to react by reviewing the licensee's qualifications for renewal or suspension. Until such a finding is made by the court, the board cannot presume a licensee's guilt, nor can they hold their own civil court to determine negligence.
The short of it is, no. The Board cannot make civil determinations such as the location of a corner, or the meaning of a legal principle, or the interpretation of a federal manual of instructions written to federal surveyors under federal jurisdiction. The surveyor can be judged in civil court for such matters, but not by the state board.
JBS
That was an excellent, well thought out response JB.
It's people like you, posting to threads like this, that make this an excellent web site.
Thank you for posting here.
And thanks to Wendell and Angel for hosting.
Douglas Casement, PLS
The law isn't justice. It's a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be. -Raymond Chandler
"It's people like you, posting to threads like this, that make this an excellent web site."
True enough, Radar, but it's also people like you, don't you think? And when you say "people like you," I hope you include yourself. With your years of experience, I don't think you're any less of an expert.
🙂
IMHO
Don
Thank you Don, it's collaboration not competition that makes things work. Although, some good old competition never hurt anybody....;-)
Cheers,
Radar
