IBLA 99-363

Yes it

Dave Karoly, post: 442657, member: 94 wrote: This came up in California Surveyor.

First of all bear in mind the BLM only needs substantial evidence to accept a monument; if they fall unreasonably in love with a rock they can accept it. Usually they don't, though. If the BLM either accepts a monument or rejects it and the private owner is unhappy he needs a preponderance of the evidence (a higher standard) to overcome the BLM decision. It's not enough to find a different rock just like BLM's or point to some evidence which is not conclusive by itself, you need a very identifiable monument probably with accessories to overcome their DP from 5 miles away. If the original US Deputy surveyor did a bad job or set poor monuments (or even misdescribed them) then the private owner is out of luck. This is the only takeaway from this decision. Suppose, for example, the Deputy set a 20x10x5 stone with notches but called it a 15x8x3 then the found stone doesn't fit the field note record. Maybe if the stone is firmly set in a mound and at least one BT exists then that would be enough but if only the stone is out there it could possibly be rejected.

I got to page 10 of 22 pages of what appears to be a case of a private surveyor finding a random rock lying on the ground in a meadow so it is most likely true that the BLM is correct it's not the corner, just a rock.

My impression is IBLA applies to Federal boundaries but is of less value in private boundary disputes.

Yes, it doesn't mean much for boundaries between two non federal interests. What gets surveyors into trouble is neglecting to consider things like federal mineral rights.

Another thing to keep in mind is that a preponderance of the evidence is less than a reasonable doubt. A found stone not the same size as called for with no accerories would likely likely beat out a proportion from miles away, unless BLM had a convincing theorey of how a non original stone appeared in the wrong location.

I see that my previous post didn't make it through the wormhole. This case, Delzell was provided as the monthly IBLA case on the CFedS web site back in October 2011. It is now also a CFedS continuing ed course. I don't see any problem with attaching the case here since all CFedS materials are public domain.

Link to the https://glorecords.blm.gov/details/survey/default.aspx?dm_id=181300&sid=or4xisrt.zgh&surveyDetailsTabIndex=1&apos ;">Original Township Plat

Link to the https://glorecords.blm.gov/details/survey/default.aspx?dm_id=184289&sid=or4xisrt.zgh&surveyDetailsTabIndex=1&apos ;">1989 Dependent Resurvey Plat

The plus to the October 2011 PDF file is that it includes a land status map (in attachment).

[SARCASM]In addition there are 3 PLSSia recipe cards for those that don't practice in a PLSS state or need to know more about the PLSS in preparing for your exam. Trade them with your friends.[/SARCASM]

The BLM Cadastral Survey enjoys a presumption of correctness which shines through IBLA decisions. Private surveys do not so that if Surveyor A declares the corner lost and proportions while Surveyor B finds a few shards of the decayed stump of the corner tree in a stump hole and opines that is the monument then the results are different. If Surveyor A is BLM then she probably prevails where if Surveyor A is a private Surveyor then Surveyor B may yet persuade the trial court that the stump hole is the corner.

This brings up something else. BLM acts as a sort of trial court stand-in while IBLA is an appellate body. Appellate Courts typically defer to trial courts in fact questions unless the trial court is clearly wrong. This is known as the substantial evidence rule. In the case of two private Surveyors then the trial court can review the fact questions de novo, they aren't bound to accept any Surveyor's opinion, obviously.

So IBLA is interesting but it's helpful to understand the procedural constraints they are under.

I have a slightly different take on the IBLA. Over the years several BLM Cadastral surveyors have tried to impress upon me that, "the BLM is a process". A BLM Cadastral surveyor acts through the Secretary of the Interior's authority to determine the boundaries of the Public Lands. They must have substantial evidence to support their boundary opinion/determination. A private surveyor must have a preponderance of the evidence to overcome that determination. In general, the IBLA will "side" with the BLM, IF the BLM has followed the Manual, all applicable [special] instructions, etc. A party wishing to overturn a BLM survey/decision, must exhaust all administrative appeals before filing suit in a U.S. district court. That includes filing a protest with the BLM and if the protest is dismissed, an appeal to the IBLA. I'm not saying that the IBLA only looks at whether the BLM followed all of its rulz, but that is often the case.

I have a project now that deals with a BLM dependent resurvey. Only the monuments marking the east end line of a lode claim were found during the resurvey. The west end line corners were reestablished at record bearing and distance. The original mineral survey was done in May 1882 and the original corners were wood posts. A second mineral survey that overlaps the first mineral survey was done two days later by the same U.S. Deputy Mineral Surveyor. The BLM found 5 out of the 6 original corners in the second mineral survey. The courses and distances between the original 5 corners show that the mineral survey is approx. 15 ft. short and the bearings are off by 9 arc-minutes from the record.

In my opinion, it is is likely that both mineral surveys ended up being short by 15 feet and instead of using record bearings and distances to reestablish the western end line, the BLM should have rotated the first lode claim by 9 arc-minutes and set the endline at 1485 feet instead of 1500 feet from the found east end line. However, unless I can find evidence of at least one of the original bearing trees or remnants of an original mound and/or 4"x4" bug dust hole, the positions reestablished by the BLM in the approved dependent resurvey will hold. My competing theory is insufficient to overcome the BLM's substantial evidence threshold for where the west end line was placed.

Just finished Dellzell today.
the 'preponderate" issue seems a bit loppsided in favor of the bureau folks. I wonder if things would flip a bit more under the new manual.
It does seem that a lot of private surveyors don't do themselves any favors with their documentation- especially when trying to prove acceptance of a corner.

2 questions that occurred to me- in Dellzell-

what if Mitchell wasn't of sound mid at the various times of his discussions with the private surveyors. His conflicting stories put those guys on diverging rabbit trails.

What if the stone mound Thwait and Mitchell removed was from the field was the corner was truly the corner and they left the largest stone, but removed the monument, not knowing what they were looking at? Did the BLM follow up with Thwait and ask, "well what did you do with the stones you took out of the field?"

For those interested, here is an anonymous link to the original survey (1883) and dependent resurvey (1989) field notes.

https://app.box.com/s/58xfi2n8dwiotgltgunkujyg5piwtzga

I hosted the notes since one of the items that the IBLA case was decided on were the facts that the sandstone corner "found" by the private surveyor did not fit the dimensions of the original stone and did not have any notches. I didn't see anything in Delzell that the BLM compared the found original corners in the township to the original calls. Hopefully, a comparison of the original stone dimensions and marks to the found corners in the dependent resurvey support the rejection of the 1981 sandstone accepted by Gareth Crites.

One errata in the Delzell IBLA decision, the first paragraph of the "Background" section states that the original stone corner to Secs. 29, 30, 31, and 32 is "marked with 1 notch on S. & IIII [notches] on E. edges." The original field notes correctly state that the stone is "marked with 1 notch on S. & IIIII on E. edges."