Did the continuing ed CFeds course Thursday and Friday. Was intrigued by the dissents of Mullen and Horton.
I also felt Downer's arguments lost steam when he asserted the bearing trees were MOVED- as opposed to just new trees being marked....but them he would have needed to produce evidence of the original trees in the vicinity of his corner position.
The fatal flaw in the IBLA process is the BLM can cook up some bogus proportionate solution then you have to find the original scribed BTs or the original marked monument to beat them in the IBLA hearing. There could be ancient fences out there which IMO are better than proportioning but that's not good enough.
Their rules favor the BLM's decision unless you can demolish it with clear and convincing evidence. Boundary judgements are supposed to based on a preponderance of the evidence.
The GLO didn't exactly set high quality and durable monuments in the first place.
Rankin_File, post: 332019, member: 101 wrote: I also felt Downer's arguments lost steam when he asserted the bearing trees were MOVED- as opposed to just new trees being marked....but them he would have needed to produce evidence of the original trees in the vicinity of his corner position.
The trees were picked up and moved? Or did he mean the ground moved?
It's pretty convoluted- I think Downer was saying there were 2 corners locations - and it was being construed by BLM to mean the trees where physically moved.... my 2nd post was poor- I guess maybe he wasn't asserting the trees were physically moved but the Admin Judges and BLM were construing that meaning from his testimony.
Rankin_File, post: 332333, member: 101 wrote: It's pretty convoluted- I think Downer was saying there were 2 corners locations - and it was being construed by BLM to mean the trees where physically moved.... my 2nd post was poor- I guess maybe he wasn't asserting the trees were physically moved but the Admin Judges and BLM were construing that meaning from his testimony.
He must have meant that the marks were moved to different trees. A semantic misunderstanding.:-(
"In a protest timely filed pursuant to 43 CFR 4.450-2 challenging a dependent resurvey, prior to
acceptance of the resurvey, appellant 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.
Robert N. Caldwell, 79 IBLA 141 (1984). The same burden rests with an appellant who appeals from a
decision dismissing the protest. Crow Indian Agency, 78 IBLA 7 (1983). "
They cite themselves, sigh.
They are citing themsleves because they are the body tasked with making these decisions. Who else would they cite? The supreme court cites themselves all the time.