Hasenyger IBLA decision

JAMES R. & CHARLENE K. HASENYAGER176 IBLA 252

Decided December 18, 2008

The Case

• This case involves the section line between sections 6 & 7

• T36S R3E SLM Utah

Township 35 S Range 3 E SLM Utah

Background• The NE corner and N ¼ of

sec. 7 T 35 S R 3 E of the Salt Lake Meridian were originally surveyed by William Lewman, U.S. Deputy Surveyor, between September 2, 1893, and April 11,1894, when he surveyed the exterior and subdivisional lines of the township.

• The Surveyor General approved the survey on November 4, 1896.

Resurveys

• In 1979 The Forest Service conducts an administrative survey of the southern half of sec. 7.

• The Forest Service surveyors determines that the NE corner and N ¼ corner of sec 7 are lost.

• They are reestablished by proportionate measurement

1980 Resurvey

• From September 23, 1980, to June 2, 1983 Gail E. Reynolds, a BLM Supervisory Cadastral Surveyor, dependently resurveyed certain exterior and subdivisional lines of the township for the purpose of “defining the boundary of coal lease areas and identifying boundary lines of natural resource lands adjacent to private land.”

• Reynolds accepts the existing monuments set by the Forest Service, deeming it to be “a careful and faithful reestablishment of the position of the original corner”

Survey Approved Nov. 7, 1983

The Challenge

• The Hasenyagers own four parcels of private land within sec. 7

• They acquired these parcels by warranty deeds, dated June 26, 2000, Apr. 19, 2002, and Mar. 28, 2005

• The Hasenyagers filed a formal protest challenging BLM’s 1983 dependent resurvey of the NE corner and N ¼ corner of sec. 7.

• They objected to the positions of the corners established by the 1983 dependent resurvey based on the Forest Service’s conclusion that the corners were lost and thus properly reestablished by proportionate measurement. They asserted instead that, in using proportionate measurement, BLM had used “an inappropriate” methodology.”

BLM’s Response

• Conducted a field investigation May 2-5, 2005

• The BLM had been unable to confirm the existence of “reliable and provable physical evidence supporting new locations for the corners.

• Concluded the Hasenyagers had failed to carry their burden to show that a corrective resurvey was justified.

• The BLM dismissed the protest

• The BLM reconsiders the case and conducts a new field investigation December 5, and 8, 2005

• Larry Judd, Cadastral Surveyor, reports finding the original survey monument for the NE corner, but not the original monument or bearing tree for the N ¼ corner.

December 2005 Investigation

The Report• “The corner of sections 5, 6, 7

and 8 was found monumented with a sandstone 22x14x5 inches (record 24x12x4 inches) lying loose on a steep slope, plainly marked with 5 grooves on one edge and 5 very dim grooves on a face of the stone. The stone was cracked through the middle, and broke in two pieces upon handling…

The Report Continued• No mound of stone was found,

and there is no indication that the stone has moved much, if any, on the steep slope. The corner position matches reasonably well with record plat information to the north and south, and fits reasonably well with topographic calls to the south and east. I see no reason to doubt the authenticity or found location of this corner and would accept it where found.”

• Judd recommends using the newly found section corner to reestablish the N ¼ corner

• The Chief Cadastral Surveyor for Utah notified Hasenyager that the recovered monument had been erroneously overlooked by the 1983 resurvey, noting that this situation presents justification for a Corrective Resurvey.

New Investigation

• The BLM conducted a further field investigation on July 25-27, 2006, again finding the original monument for the NE corner and also recovering the original survey monument for the N ¼ cor. of sec. 7.

The Decision?• In January 2007, the State

Director makes a decision to uphold the BLM’s 1983 dependent resurvey of the NE corner and N ¼ corner of sec. 7, declining to undertake a corrective resurvey of the two corners.

• The Hasenyagers appealed

State Directors Decision

• In the decision the State Director acknowledged that the that BLM had accepted the two monuments recovered as the original monuments set by Lewman in 1896

The Reasoning

• In upholding the 1983 dependent resurvey, the State Director sought to avoid injuring the bona fide rights of all who “relied on the monumentation and boundaries established by the Forest Service and accepted by BLM” since 1983.

• The Decision also explained that the resurvey had been performed in accordance with BLM’s Survey Manual.

The Argument

• In declining to adopt the original monument as the NE corner of sec. 7, BLM relied on the IBLA decision in Longview Fibre Co., 135 IBLA 170

• The case concerns three corners along a line running north from the SE corner of sec. 32 to the NE corner of sec. 29. The controversy focuses on the E¼ and NE corners of sec. 32 and the E¼ corner of sec. 29.

T~4~N R~2~W Willamette Meridian Oregon

Longview Fibre


Longview FibreT~4~N R~2~W

Willamette Meridian Oregon










• Originally surveyed in 1855 by Joseph and John Trutch

• Resurveyed in 1933 by Otis Gould

• Gould doesn’t find E ¼ cor. & NE cor. Sec. 32 & E ¼ cor. sec. 29.

• Reestablishes NE cor. Sec 32 & E ¼ cor. Sec 29.

• Olsen (a private surveyor working for Longview) resurveys in 1983

• Olsen finds scribed bearing trees at E ¼ cor. Sec. 32.

• The bearings and distances matched very closely those recorded

• At the NE corner of sec. 32, Olson Thinks he finds remains of 3 badly rotted bearing trees.

• No scribing found• And at the E ¼ cor.

Sec. 29 he finds more of the same.

• Olsen remonuments all three corners.

• In 1984 BLM Cadastral Surveyor Frank A. Tuers investigates and accepts the ¼ cor. of secs. 32 & 33.

• Rejects the other 2 corners.

• While he noted the bearing trees recovered by Olson in each case, he did not regard this as "clear and convincing evidence" regarding the location of the original 1855 corners

• He concluded instead that Gould's corners should be considered the true corners. BLM took no formal action at that time because the E¼ corner of sec. 32 was on private land, and the NE corner of sec. 32 and the E¼ corner of sec. 29 were considered properly reestablished

1991 Survey

• In 1991, BLM dependently resurveyed the exterior lines of sec. 29

• Performs a corrective dependent resurvey of the line between secs. 32 and 33 of the township, taking into account Olson's 1984 recovery of the E¼ corner of sec. 32

• The BLM decided not to alter the proportionate positions for the NE corner of sec. 32 and the E¼ corner of sec. 29, both of which had been determined "lost" in 1933.

• Longview filed a protest. • It objected to BLM's resurvey of

the line because BLM ignored evidence recovered by Olson in 1983 pointing to the original 1855 location of the three corners on that line.

• Longview noted that BLM's resurvey placed its past logging efforts, which (based on the Olson survey) had been assumed to be on private lands within secs. 28 and 32, in trespass on Federal lands in adjacent sec. 29

• The BLM also refused to reproportion the NE corner of sec. 32 and E¼ corner of sec. 29 on the basis of Olson's recovery of the original 1855 E¼ corner of sec. 32. It reaffirmed its position that to move the corners would not necessarily locate them at their original or a more equitable position and would undermine the longstanding reliance by private landowners on the existing Gould corners

BLM Response

• BLM reaffirmed its position that there was not a "preponderance of the evidence" that Olson had remonumented the original 1855 corners.

• The BLM also refused to reproportion the NE corner of sec. 32 and E¼ corner of sec. 29 on the basis of Olson's recovery of the original 1855 E¼ corner of sec. 32. It reaffirmed its position that to move the corners would not necessarily locate them at their original or a more equitable position and would undermine the longstanding reliance by private landowners on the existing Gould corners

IBLA Decision

• The decision stated that “the rule that the pattern of trees will not alone suffice to identify the location of either of the original corners, in the absence of some evidence corroborating that the trees are the original bearing trees.”

• We have carefully reviewed, and now reject as unpersuasive, Olson's probability analysis…There is no proof that the original 1855 stand was identical or even close to the stand currently assumed to have existed

• We conclude that, given the inconclusive nature of evidence regarding the species of the bearing trees identified by Olson, the lack of any reliable evidence regarding their size, and the problems with determining their exact positions together with the likelihood that a number of other groupings of trees matching the record might, at one time, have been identified, the evidence generated by Olson does not determine the position of the original NE corner sec. 32 and E¼ corner sec. 29.

Proportioning

• In the course of the resurvey, BLM declined to correct the error in the Gould resurvey by reproportioning the NE corner of sec. 32, and then the E¼ corner of sec. 29. It is well established that a survey that has already been accepted will not be overturned, especially after a long lapse of time, except upon clear proof of fraud or gross error amounting to fraud

• The IBLA in its decision states “In some instances, bona fide rights are protected only where BLM departs from a rigid application of resurveying principles to ensure that long-accepted survey lines are not disturbed, so that property boundaries are stabilized and title is secured.”

IBLA Decision

• We agree with BLM's assessment that a second reproportioning would not reestablish the Trutch's 1855 corners.

• In these limited circumstances, in view of the length of time that the 1933 corners have been acknowledged and the fact that lands have been acquired and title transferred based on those corners, BLM properly decided not to reproportion again.

Hasenyager and Longview

• “In Longview the IBLA did not conclude that BLM was justified in refusing to accept a newly-recovered original monument” in fact they did accept a newly recovered monument. “…Rather, they held that BLM continued to be justified, in a 1991 dependent resurvey, in considering the corners to be lost, since the newly-recovered trees could not be positively identified as accessories to the original monuments.”

• In Longview the IBLA upheld the BLM’s decision not to use a newly found controlling corner to reproportion the 2 corners because “a second proportioning of the corners would not reestablish the lost corners in their true original positions.” and “would impair…the bona fide rights of other private landowners who had, in good faith, relied on the lines and monuments of the1933 resurvey for close to 60 years.”

Hasenyager Decision• “The corner at the location of the original

monument was the corner in effect at the time of the 1897 and 1963 patent of public land on either side of the section line between secs. 6 and 7. The boundaries of the patented land were thus fixed by the original monuments set in the 1896 survey, and have remained fixed since that time, because the patentees took title to the land on the basis of the last official survey prior to patent as it was actually run on the ground, which survey was incorporated in the patent and necessarily has been incorporated in every succeeding transfer based on those patents.”

IBLA Conclusion

• “Our decision in Longview Fibre, which affirmed BLM’s decision not to overturn a 1933 resurvey, was expressly predicated on certain “limited circumstances,” specifically, the fact that a “second reproportioning” of the lost corners, by corrective resurvey, “would not reestablish the original . . . 1855 corners.” Such circumstances do not pertain here, since a corrective resurvey would indisputably reestablish the original 1896 corners.”

• BLM must now correct the 1983 dependent resurvey so that it does, in fact, “follow” the lines of the original survey. BLM’s decision upholding a dependent resurvey relocating lost corners by proportionate measurement will be reversed and remanded, when BLM, after accepting the resurvey, recovers the original corner positions and their original survey monuments in place, where adherence to the proportioned corners would impair the bona fide rights long established by reference to the original corners….

• It is said that the “purpose” of a dependent resurvey “is not to ‘correct’ the original survey by determining where a new or exact running of the line would locate a particular corner, but rather to determine where the corner was established in the beginning.” In the present case, we now know with certainty where the NE corner and N quarter-corner were “established in the beginning,” and have been shown no reason for ignoring the positions of those corners.

• Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 C.F.R. § 4.1, the decision appealed from is reversed, and the case is remanded to BLM for further action consistent herewith.

State Directors Response

Discussion

• What the Manual Says:• A dependent resurvey is designed to retrace and

reestablish the lines of the original survey, marking the boundaries of the legal subdivisions of the public lands, in their “true original positions,” according to the best available evidence.

• Survey Manual, section 6-4.

Discussion

• What the IBLA has said:– “The proper execution of the dependent

resurvey serves to protect the bona fide rights of the land owners, because a properly executed dependent resurvey traces the lines of the original survey.” John W. Yeargan, 126 IBLA 361

Discussion

• BLM is required, during the course of a dependent resurvey, to thoroughly and diligently search for any evidence of the original corners, including the monument and its accessories: “The retracement surveyor must act as a detective to gather, verify and consider all available evidence.” …Further, it must do so by following the field notes of the original survey, in order to ensure that it has the best chance of recovering such evidence. Survey Manual, 5-6 and 6-26,

Hasenyger IBLA decision

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