IBLA 388 (IBLA 2010-152 Hillstrom)

> IBLA 388
>
> I don't know if this decision has been discussed but it should cause some good discussion.

I think we have discussed this case in the past when it was first published. The thing that makes challenges to BLM surveys very difficult is "A party objecting to a resurvey after the filing of the official survey plat must establish by a preponderance of the evidence that the resurvey was grossly erroneous or fraudulent." That is a different burden of proof from what is used when first making a decision on a corner in the private sector. I think Jeff Lucas wrote an article a while back addressing the "proof" issue.

It seems that the BLM also relied very heavily on measurement evidence, which in this case may have been relevant as the "obliterated" corner was something like 160 feet from the proportioned corner.

Wouldn't the evidence that the corner was lost have to be clear and convincing (higher)and the evidence that the corner was obilterated a preponerance (lower)?

I vaguely remember the case; I need to read it again.

Generally the tie goes to BLM in these cases which is not necessarily what would happen in State trial court decisions.

You have to be able to demolish their case if it goes to IBLA. For example, say they found and held a stone mound. Say you find a stone mound which you think is better (maybe it fits better). They will win. You would need to find the marked stone or scribed bearing trees to beat their corner but then if you did that they would probably change their survey and there would be no need to go to IBLA.

> Wouldn't the evidence that the corner was lost have to be clear and convincing (higher)and the evidence that the corner was obilterated a preponerance (lower)?

A lost corner is one that is void of evidence of its original position.

From the 2009 Manual:

6-17. 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.

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.

While I was writing my previous response, I thought something wasn't quite right about the quote I included. What I was looking for was this from Scherbel IBLA 81-282:

"Surveys of the United States, after acceptance, are presumed to be
correct and will not be disturbed except upon clear proof that they are
fraudulent or grossly erroneous. An appellant challenging a
Government resurvey has the burden of establishing by clear and
convincing evidence that the resurvey is not an accurate retracement
and reestablishment of the lines of the original survey."

I found this while reading the referenced Hillsrom case:
"A party who objects to a resurvey after the filing of the official survey plat is required to establish, by a preponderance of the evidence, that the resurvey was grossly erroneous or fraudulent. A failure to conform the resurvey to the requirements of the Survey Manual constitutes gross error."

Hmmmmmmm. Sumthin' to study & ponder......

1993: The Bureau of Indian Affairs asks BLM for a survey of Indian Allotments in the northwest ¼ of Section 31.

The article does not say if the SW SW of 31 next to Hillstrom is private or Indian land. It does say that the BLM was asked to survey in the NW 1/4 of 31. I wonder if BLM had authority to re-establish the W/16th corner.

I also question how or if the IBLA decision considers previous court cases in Oregon such as Dykes V Arnold as the Manual also states should be a consideration. The IBLA counterpoints in the case appear fairly weak against the points made by Hillstrom in light of Dykes v Arnold and other sections in the Manual. If the disputed location of the corner is between Hillstrom and private land IBLA would have no say in the matter. At the very least even if it is public land the BLM took on more than they were requested to survey given what is written. To the credit of IBLA, in 2008 they revised the status of 3 other corners in the SW quarter as obliterated based on additional investigation.

The reader is left with the idea that the main reason for rejecting the 1911 monument was its incorrect location based on the math. At least that's what I get out of it.