c United States Department of the Interior

OFFICE OF H E A R I N G S A N D APPEALS Interior Board of Land Appeals

801 N . Quincy Street, Suite 300 Arlington, Virginia 22203

703-235-3750 703-235-8349 (fax)

September 22, 2009

2009-191

JEANNETTE I . JONES

Group 523 WA

Cadastral Survey

Decision Affirmed

ORDER

Jeannette I . Jones, current owner of Lot 4 of sec. 19 and Lot 8 of sec. 20, T. 35 N., R. 37 E., Willamette Meridian (WM), Ferry County, Washington, appeals the March 23, 2009, decision of the Oregon State Office, Bureau of Land Management (BLM) (Decision), dismissing her protest of the dependent resurvey of that township, accepted May 20, 2002 (2002 Dependent Resurvey). Jones contends that the resurvey was in error and has encroached upon the southern boundary of her property.

Background

In 1899, the boundaries of the Indian allotments within the township were originally surveyed by an unnamed U.S. surveyor (1899 Allotment Survey) pursuant to the Act of February 8, 1887, 25 § 334 (2006), commonly known as the Dawes Act or the General Allotment Act.1 See Answer at 1. He established the boundaries and the corners of the allotments by metes and bounds to correspond to the size and shape of the aliquot parts of the sections according to where he determined they would be when the Public Land Survey System was extended to that area. The Field Notes are the only record of this survey. See 1899 Allotment Survey at 223; Decision at 4; Decision, End. 1 at 2.

Jones' Lots 4 and 8 were originally surveyed in 1899 as the "Peter Marchand" allotment, whose southern boundary coincides with the northern boundary of the "Mary Marchand" allotment. 1899 Allotment Survey at 223, 250-52; see 2002 Dependent Resurvey Plat 35-37-N. The record does not show the chain of title to Jones' property.

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By a proclamation dated April President William McKinley opened this area of the former Colville Reservation to settlement and entry, "excepting such tracts as have been or may be allotted to or reserved or selected for the Indians." BLM Answer at Att. 3. The proclamation included a "Schedule of Lands Allotted to the Indians in Restored Portions of Colville Reservation, Washington, and Withheld from Settlement Entry," which included tentative aliquot part descriptions for the allotments in 19 and 20, T. 35 N., R. 37 E., that correspond to the aliquot parts referred to in the 1899 Allotment Survey. Id.

In 1908, Samuel H. Richardson, Jr., U.S. Deputy Surveyor, surveyed the subdivision and meander lines within the township west of the Columbia River, including those lines that intersected the previously surveyed allotments. The corner points established and monumented in the 1899 Allotment Survey provided the basis for the original Survey Plat, 35-37-D, approved May 16, 1910 (Original Plat), and the Field Notes and Survey prepared in 1908, and accepted January 23, Survey). The Original Plat reported no areas for the allotments. Richardson measured the distances to several allotment corners in the township but did not measure all allotment boundaries, establish new corners, or create any new allotment boundaries in sections 19 and 20. Survey.

In a letter dated January 22, 1912, the Commissioner of the General Land Office (GLO) directed that a supplemental plat be prepared of the allotments because each needed a lot number and area for a trust patent to issue. The resulting plat, Supplemental Plat, 35-37-E (1912 Supplemental Plat), was prepared and approved in 1912, entirely from the existing 1899, 1910, and 1911 survey records; no survey work was done on the ground and no original corners were searched for or recovered. The tentative aliquot part descriptions of the allotments found in the 1899 Allotment Survey do not coincide with the aliquot parts of the sections surveyed by Richardson in 1908, resulting in the assignment of lot numbers. 1912 Supplemental Plat E; see Answer at 2.

BLM states, "[t]he Bureau of Reclamation (BOR), has conducted numerous resurveys in this area beginning in 1935" and recovered some of the allotment corners. Answer at 2; see id. at Att. 6, BOR Map (an administrative survey) approved Sept. 30, 1935, revised Aug. 4, 1936; Answer End. 1 at 4. BLM further states, "several local surveys conducted by John L. Shackleford, Randal Sierger, Thomas E. Todd, and Thomas K. Carlson, Registered Professional Land Surveyors, have recovered allotment corners in this area, including the NE and SE corners of the Peter Marchand allotment [the latter being the same point as the NE corner of the Mary Marchand Allotment], as well as the corners previously recovered by BOR." Answer at 2; see Answer at Att. 7, plats.

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In June 2001, the Bureau of Indian Affairs filed with BLM a memorandum requesting a cadastral resurvey in order to partition undivided one-half interests in the Mary Marchand allotment held by two brothers, Lou and Fred Stone, pursuant to a BIA decision partitioning the allotment, dated July 8, 1999. June 25, 2001, Memorandum from the Superintendent, Colville Indian Agency, to the Chief, Branch of Geodetic Sciences (Memorandum); see Lou Stone v. Portland Area Director, Bureau of Indian (Lou Stone), 36 IBLA 132 (2001).

On July 2, 2001, BLM issued Special Instructions Group Number 523, Washington (Special Instructions), authorizing the surveyor to conduct a dependent resurvey of the Mary Marchand Allotment in 19 and 20, T. 35 N., R. 37 E., WM, and a metes-and-bounds survey of that allotment to the extent necessary to delineate the boundaries of a new 5-acre parcel as Lot 14 for Lou Stone's home site as described in request for resurvey.2 Special Instructions at 1. The resurvey was to be conducted in accordance with the Manual of Surveying Instructions, 1973 {Survey Manual) and the Special Instructions and provide legal descriptions of the two parcels.

In 2001, U.S. Cadastral Surveyor Boyd Peterson conducted a dependent resurvey of the Mary Marchand allotment in sections 19 and 20, and a metes-and-bounds survey of Lot 14 in sec. 20, T. 35 N., R. 37 E., WM, in Ferry County, Washington. His survey3 and dependent resurvey plat, Plat 35-37-N, were approved on May 20, 2002.

After several years of exchanging correspondence with Jones over her objections to the 2002 Dependent Resurvey, BLM notified her it would consider her letter dated January 14, 2009, as "an official protest of the said BLM survey and resurvey in accordance with 43 CFR 4.450-2." Decision at unpaginated 1. The Oregon State Office denied the protest on March 27, 2009, and Jones timely appealed.

In denying her protest, BLM stated it carefully reviewed a Survey History Diagram (Decision at Enclosure 2) and determined:

BLM has the authority to resurvey public land boundaries under 43 § 772 (2006) and to partition the Colville allotments under 25 U.S.C. § 378 (2006). See Lou Stone, 36 at 133

Peterson therein states that he retraced prior survey lines, searched for original corners and calls of record, and executed his resurvey in accordance with the Special Instructions and Survey Manual. Peterson Field Notes at 386.

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The 2002 BLM dependent resurvey the same allotment corner points identified by the 1935 Bureau of Reclamation (BOR) survey, 1937 GLO survey, 1939 BOR survey, 1961 County Road Survey, 1978 Carlson survey, 1981 BOR survey, 1985 Todd survey, and Schackleford survey.

2. The measurements of the N-S lines compare very favorably with the original survey with the E-W lines generally short by less than 40 feet.

3. The areas reported in the 1899 field notes (80 acres) turn out to be very accurate when compared with the areas calculated from the BLM 2002 resurvey

Decision at 3. As to Jones' contention that the 2002 Dependent Resurvey did not rely on the acreage shown in the 1912 Supplemental Plat, BLM acknowledged an 8.29-acre discrepancy between the 1912 Supplemental Plat and the 1899 Allotment Survey, but explained:

[t]he allotments as surveyed and monumented on the ground still contained approximately 80 acres each. It was the new areas shown on the supplemental plat that were in . . . Therefore, after an extensive review, the 2002 BLM resurvey was found to have met the technical and legal requirements for an official cadastral resurvey. Consequently, your protest against this resurvey is hereby dismissed.

Decision at 4-5. This appeal followed, but as stated by BLM, "Jones has not specifically listed the issues that form the basis of her appeal." Answer at 3. BLM thus identified the main points raised in her appeal from her Notice of Appeal (NOA) and previous correspondence, as do we. Id. Generally, she disputes the survey line

BLM further explained that in 1899 the allotment surveyor established the boundaries and monumented the corners of the allotments to correspond to the size and shape of the alliquot parts of a section, i.e., 1320 feet (20 chains) by 2,640 feet (40 chains) each, and containing 80 acres. BLM states that the areas shown by the 1912 Supplemental Plat were based on the mistaken assumption that the portion of the Mary Marchand, Jr. allotment (a different allotment than the Mary Marchand allotment), located in and 18 immediately north of the Peter Marchand allotment, constitutes acreage that is in addition to the 80 acres originally surveyed in 1899 (the "allotments were located slightly north and west of the Richardson lines but contained no additional acreage"). Decision at 4.

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between the Mary Marchand allotment and the Peter Marchand allotment to the north (her property), contending that the 2002 Dependent Resurvey was in error, and resulting in encroachment upon her southern boundary line and a loss of at least 12 acres of her property. See NOA; Letter from Jones to BIA, dated October 30, 2006 at 1. BLM responds that "[t]he 2002 BLM survey properly researched the survey records, evaluated the corner evidence, identified the original corner points and correctly restored the boundaries of the allotments." Answer at 8.

Analysis

BLM is authorized by the Act of March 3, 1909, 43 U.S.C. § 772 (2006), to resurvey the public lands to reestablish the original corners, and, thus, the lines, established by earlier official surveys. Howard Vagneur, 159 IBLA 272, 277 (2003). As we explained in Charlene K. Hasenyager, IBLA 252, 258-59 (2008),

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, § 6-4, at 145; see, e.g., Howard Vagneur, 159 IBLA at 277, 278. Generally speaking, it places the lines in the same position on the earth's surface that they have occupied since the date of the original survey, thus fulfilling BLM's duty, under 43 U.S.C. § 772 (2000), to protect the bona fide rights of private landowners and their successors-in-interest, whose property rights are tied to the original lines. Sweeten v. U.S. Department of Agriculture, 684 F.2d 679, 681-82 (10th Cir. 1982); Howard Vagneur, 159 IBLA at 277; Survey Manual, §§ 6-4, and 6-12 to 6-14, at 145, 147-48

We have long recognized that original lines are to be reestablished in a dependent resurvey by recovering or restoring the original corners by any of three methods. Howard Vagneur, 159 IBLA at 277. First, an "existent" corner can be recovered by finding evidence of the monument and/or its accessories. Survey Manual, § 5-5, at 130. Second, an "obliterated" corner, where there are no remaining traces of the monument or its accessories, can be recovered where the corner's location has been perpetuated, or where other acceptable evidence establishes its location. Survey Manual, § 5-9, at 130. Third, where a corner cannot be considered existent or obliterated based on substantial

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evidence regarding its location, it will be regarded as a "lost corner" to be restored by reference to one or more interdependent corners, and thus by the method of proportionate measurement. Survey Manual, §§ 5-20 and 5-21, at 133; see, e.g., Kendal Stewart, 132 IBLA 190, 194-95 (1995); James 116 IBLA 185, 191 (1990).

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. . . . 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. See Survey Manual, §§ 5-6 and 6-26, at 130, 150; e.g., Mark Einsele, 147 IBLA at 16

When challenging the denial of a protest to a dependent resurvey, "the appellant has the burden of establishing by a preponderance of the evidence that the resurvey is not an accurate and of the lines and corners of the original survey." David Viers, 143 IBLA 209, 218 (1998), and cases cited. We have held that a BLM dependent resurvey that does not follow the Survey Manual is erroneous and must be canceled. Peter Paul Groth, 99 IBLA 104, 119 (1987);

Tussio, 37 IBLA 132, 133 (1978). Since Jones alleges that the resurvey is inaccurate and fraudulent, her burden on appeal is to show by a preponderance of the evidence that the 2002 Dependent Resurvey does not follow the Survey Manual or is otherwise inaccurate or fraudulent.

After a thorough review of the record, we are unpersuaded by Jones' arguments that the 2002 Dependent Resurvey is not an accurate retracement and reestablishment of the lines and corners of the original survey and is fraudulent.

Jones first argues that the north and south boundaries of the Mary Marchand allotment, as shown in the 2002 Dependent Resurvey, are incorrect because the fence line intersections and posts, as well as other evidence relied upon to recover the corners of that allotment, were not as they were described in the 1899 Allotment Survey. She relies on a notation concerning the southwest corner of the Mary Marchand allotment in the 1899 Allotment Survey, which states: "From Cor. 1 allotment of Mary [,] I run N. Bet. Allotment of Mary Marchand and Rose Marchand . . . [o]ver a level bench . . . [and] Enter field[.]" From this notation she concludes "the 1899 surveyor had to walk one half chain, (33 feet) further north after setting a pine post, which was corner #1[,] prior to entering a field." She claims this shows the fences Peterson relied on do not the property lines or match the survey: "BLM used a rotted fence post as its monument instead of

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measuring south 33 feet to Pin #1 . So, basically BLM used what ever [sic] they wanted to in order to establish a monument. Since the BLM Pin #1 was placed north by 33 feet, then Pin #2 is [sic] also too far north." NOA at 2. She contends this inaccurate relocation causes an encroachment on her property. The north boundary of that allotment is the south boundary of Jones' property. Id.

We Jones' argument unpersuasive because she apparently fails to do what Peterson did and was required to do, rely on the best available evidence to recover the original corners in compliance with the Survey Manual. In retracing the 1899 Allotment Survey, Peterson found no evidence of the original monuments (or accessories) for the southwest and northwest corners of the Mary Marchand allotment. However, he determined they had been perpetuated by intersecting fence lines, which were "harmoniously related to existing corners" and constituted "the best available evidence of the position of the original corner." 2002 Dependent Resurvey at 387-88. Peterson also recovered the northeast corner, which he found had been perpetuated by Carlson and by Todd, registered Land Surveyors, with an iron pipe "from original evidence no longer in existence." 2002 Dependent Resurvey at 390; see Answer at Att. 7, Carlson and Todd plats, approved respectively in 1978 and 1991.

Contrary to Jones' argument is the fact that the 1899 Allotment Survey clearly calls a fence on the allotment boundary line between the Mary Marchand and Peter Marchand allotments. 1899 Allotment Survey at 250. Jones does not show by a preponderance of the evidence that Peterson's acceptance of the fence posts as the position of the original southwest and northwest corners of the Mary Marchand allotment is inaccurate, or that the north boundary of that allotment is not along the fence line, as called in 1899. For these reasons we agree with BLM that the north boundary of the Mary Marchand allotment is in the original location based on the best available evidence of the original corners.

Jones next claims the allotments were "corrected" when Richardson allegedly conducted another resurvey in to his "1908 Resurvey." She argues that a plat she calls "Supplemental D," shows "the Indian allotments were redefined and corrected to fit Samuel H. Richardson Jr.'s 1908 Resurvey," and the Dependent Resurvey did not follow Richardson's "corrections." NOA at 2. However, as BLM explains, the plat she refers to as "Supplemental D" is not a supplemental plat but a triplicate copy of the official Original Plat for the 1899 Allotment Survey and

The northwest corner recovered by Peterson was the same fence corner later identified as the northeast corner of the adjacent Rose Marchand allotment by surveyors R. W. Skibby in 1970 and Randal Sieger in 2006. Answer at Att. 7.

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Survey: "There were no new surveys or resurveys conducted in this township in Ms. Jones has produced no field note record for the purported

Richardson resurvey and the plat she asserts shows the corrections was approved several months before Deputy Surveyor Richardson allegedly performed the field work." Answer at 5-6; see Original Plat 35-37-D; NOA attachment labeled: "Supplemental D" at the top in handwriting presumably by Jones; BLM Letter to the Board dated July 20, 2009, at 2. Further, as noted above, no survey work was done on the ground and no original corners were searched for or recovered in connection with the 1912 Supplemental Plat.

Jones further argues that letters from the GLO Commissioner in 1907, 1912, and 1915 demonstrate that Richardson "corrected" the allotment boundaries and acreage based on the survey he conducted in 1908. NOA at 2-4. She quotes from the Commissioner's letter dated January 22, 1912:

Nothing therefore remains to obstruct the preparation of new supplemental diagrams which shall exhibit all areas with acreage and lot-numbers, in each section containing any part of an Indian allotment in said townships, so that the same may be correctly described in a new and corrected schedule to be approved by the Hon. Secretary, superseding the erroneous locations now given on the former schedule.

Id. at 3. BLM explains that these corrections and the adjustment referred to in the Commissioner's August 13, 1915, letter are not corrections of or an adjustment to "the position of the allotments on the surface of the earth, but rather an adjustment of the legal description with reference to the public land display." Answer at 6; see n.3 above. BLM continues:

The tentative description and subsequent adjustment was [sic] contemplated by the [1899] allotment surveyor, as shown by the following statement at the conclusion of the survey of the Mary Marchand allotment: "When the congressional survey is extended the allotment of Mary Marchand will conform very nearly to the [aliquot description for it contained in his 1899 Allotment Survey] and contains 80 acres." A similar statement follows the survey of each allotment. The allotments did in fact conform very nearly to the "congressional

but not exactly, necessitating the adjustment of the description.

Answer at 6-7. As noted above, the 1912 Supplemental Plat adjusted the legal descriptions of the allotments, and BLM admits that the plat includes erroneous areas for the Peter Marchand allotment, located immediately north of the Mary Marchand

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allotment and the Mary Marchand, Jr., allotment, located immediately north of the Peter Marchand allotment. Since this error was made by a draftsman in the Surveyor General's Office constructing that plat, not by Richardson in conducting his field work, it did not change the location or acreage of the allotments on the ground that were later corrected. Decision at 3; Decision, End. 3. We are, thus, unpersuaded that the 1899 Allotment Survey has ever been revised and/therefore, conclude that any adjustment or correction of the allotment did not alter their boundaries on the ground, including those of the Mary Marchand allotment at issue here.

Finally, Jones alleges that "BLM has used what ever [sic] they needed to create a fraudulent survey in order to add more property to the Stone Family Trust," essentially basing her allegation on the same arguments made in claiming the 2002 Dependent Resurvey is inaccurate. See NOA at 2-6. We have examined the record find Peterson appropriately researched the survey records, analyzed the relevant evidence, recovered the original corner points, and restored the allotment boundaries, but find no indication that his dependent resurvey or BLM's Decision to accept it was fraudulent. For these reasons we conclude that Jones has failed to carry her burden of establishing by a preponderance of the evidence that the resurvey is inaccurate and reject her claim of fraud as without any basis in fact.

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR § 4.1, the appealed decision is affirmed.

I concur: