The following are examples of"forced order" in the 1947 & 1973BLM Survey Manuals, which gaveaid and comfort to CadastralEngineers and Mathematicians:3.4 Resort to Field Notes.5.9-16 B.A.R.D...only proportioning acceptable. Testimony must be 1:5000 precision.5.21 Proportioning to always be employed.5.42 Fences & Roads not evidence.6.15 Corners not affected by Fences & Roads .6.18 Good Faith Occupation doesn't exist. 6.28 Local corners out of favor.9.5 All collateral evidence being unacceptable, use Field Notes and Plat.
"You don't see something until youhave the right metaphor to let yousee it." Thomas S. Kuhn.
A P R O F E S S I O N D I V I D E D
Fractal images, such as this, are examples of
"Out of chaos can come order."
Our Survey Profession is an example of:
"Out of forced order comes chaos."
The following are examples of theuse of evidence (chaotic) in the 1973BLM Survey Manual, which weremostly ignored.5.46 Rules cannot reconstruct a grossly erroneous section or ficitious Field Notes.6.6 Resurveys should relieve existing difficulties, not introduce new ones.6.10 Resurveys to be in harmony with precedent.6.14 No legal authority for convert- ing a Dependent Resurvey into an Independent one.6.42 Fences & roads are the best indicators of original position. 5.42 Burden of proof upon party claiming differently.
"HARD TO BELIEVE THESE ARE FROM THE SAME BOOK"
FRACTAL IMAGES & VIDEOS - MANIFESTATIONS OF ORDER WITHIN CHAOS.
These videos and images are of Madelbrot sets, named after Benoit Madelbrot. From his1975 coinage of the word, they are also called "fractal" images. The formulae with whichthese images are plotted are non-linear equations; meaning that they have few Euclideanor Newtonian solutions. Yet it is very apparent that there is order within the chaos. Itwasn't until the 1970's that some remarkable minds and computers discovered the shapeof some of the non-linear equations and found order within chaos.
Two common elements of these formulae are visible in these images, "self similarity" and"scaling". Scaling always happens at the rate of 1:4.669201609 no matter the form of thenon-linear equation. This attribute is called "universality". Other attributes of chaoticsystems are robustness and self-correction.
Much of our material comes from James Gleick's , Chaos-Making a New Science. "...mathematicians would say that whatever Mandelbrot was, he was not one of them" ,page 90.
Linda and I are not here because of such intellectual elitism. I am not more intelligentthan you. I have not more degrees than you. What I have is 43 years of experience insurveying; the last 20 some of which have been exclusively Land Boundary Surveys. What the years and courts, and yes, the BLM Manuals, have given me is a deep faith inthe "Fundamental Law of Original Corners". I am strong in this faith and have littletolerance for backsliders and the sins they commit upon our society. AMEN,BROTHERS?
I have to tell you a story about Linda. Several months back I found a Logic test on-line,based on syllogisms. Syllogisms condition a Land Boundary Surveyor for the interplayof multiple items of evidence. Anyway, I took the test and got 70% correct; guessingwould have done almost as well. Linda happened to look over my shoulder, nudged measide and took the exam. She aced it.
RELATIVITY & UNIVERSIALITYLooking from Corvallis at this Mandelbrot set one would see no dimensions, because youcan't see it at all. From 300 feet it would appear as a dot, one dimension. From the backof this room it has a center and radius. From ten feet it appears three dimensional. Fromthere to near molecular level it appears similar, just scaling downward. At the molecularlevel the set would again not be visible. This is a non-mathematical demonstration ofEinstein's Theory of Relativity; much depends on the perspective of the viewer. It wasEinstein's metaphor of a man on a railroad platform that gave us E=MC2, the theory ofrelativity.
The scaling of similarity in Chaos is universally 4.669201609 for ALL non-linearformulae. Other truths can be gleaned from Fractal images. Let us say that this object is3 dimensional and fits inside of a cube whose sides are 1 unit square and whose surfacearea is thus 6 of the same unit. However, the surface area of the fractal thing is verylarge, in fact infinitely large. Thus a cube of this stuff 1 square inch, one square foot, yardor mile all have the same surface areas.
APPLICATION IN METAPHOR"You can not understand something until you have the metaphor to let you see it." Sosays Thomas S. Kuhn, he who made us aware of paradigm shifts and scientificrevolutions.
Many of Einstein's discoveries were based upon metaphors.
Religious metaphors herein are so common that some might call this course "BrotherErickson's Surveying Salvation Show." This faith has only one commandment, the"Fundamental Law of Original Corners", and Erickson is strong in this faith. Hallelujah!
On page 174 James Gleick described the Chaos phenomena thus:
"Imagine that a prehistoric zoologist decides that some things are heavier than othersand he wants to investigate this idea scientifically. He looks at big snakes and littlesnakes, big bears and little bears, and he guesses that the weight of these animalsmight have some relationship to their size. He builds a scale and starts weighingsnakes. To his astonishment, every snake weighs the same. To his consternation,every bear weighs the same , too, And to his further amazement, bears weigh the sameas snakes! They all weigh 4.669201609. Clearly weight is not what he supposed. Thewhole concept requires rethinking."
"...mathematicianswould say that
whatever Mandelbrotwas, he was not one of
them."
FUNDAMENTALLAW OF
ORIGINALCORNERS
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Similarly, a Land Boundary Surveyor, named Pete Dot, is swamped with clients who wantmissing Section corners restored. He needs a quick and easy way to find multiplesolutions using inexperienced crews. He sees that in the field notes there are distancescoming from the east and distances from the west. He sees distances coming from thenorth and the south. He balances out the north-south distances and the east-west distancesand has his college students set the monuments at the balance points. To his amazement,none of his clients are happy with the results. To his consternation the neighbors rip uphis monuments and throw them over the fence. To his further amazement the local judgedoesn't like his solutions either. Poor Pete Dot. Clearly the balance points do not matchanybody's idea of where the property lines are. The whole concept requires rethinking,however in our world, this thinking hasn't gotten far.
These were not strong in the faith.
My response is that, while the United States Rectangular Survey System is worldrenowned and imitated for its simple genius in segregating, describing and conveyingproperty and rights, during the last 100 years the GLO/BLM has gone far towardsdestroying it with their faulty re-surveys.
EXAMPLES OF THE USE OF THE SCIENCE OF CHAOS
Though the excitement of the 1980's has died down, the new science of Chaos still hassome tricks to teach us, even if it is only in metaphor.
Much of the acumen of Chemists is due to the discovery of platinization of electrodes. Ifan electrode having a surface area of one square inch is platinitized the surface areaincreases from 1 square inch to 7,000 square inches! This produces magic in a salinesolution or catalytic converter. The electrode still looks like one square inch of surfacearea, still measures 1 square inch using a carpenter's rule, but the surface is nowsomething like this Mercer Sponge.
The oil & gas companies, of shale rock fame, were the first industry to embrace the newscience of Chaos, thus their word "fracking". Their innovations gave us fracking of oiland gas wells. Their success in this work is explained by a recent confirmation that theseshales are natures most perfect personification of fractal images; the porous structurecontinues true to a minuteness that we cannot see nor measure with our finest. Which explains why crushing the rock to remove the oil is so inefficient, no matter how fine,
Here are some quotes received from Federal employees since the "BOSH!" article waspublished.
1. "I have no sympathy for the private surveyor who ignores proper procedures." (Talk about the pot calling the kettle black.)
2. "The fences and surveys are incorrect, thus I have no obligation to honor them." (So much for Dykes v. Arnold.)
3. "Jeff Lucas is too negative so I don't read him anymore. And maybe I'll be thenext one that cancels my American Surveyor Magazine." (Truth is never negative, butsometimes it does hurt.)
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there are still pores that hold the oil firmly. Apparently they found it more efficient torubbelize the strata in place and add chemicals, like benzene, to break down the surfacetension and release the oil. "Two weeks of work yields a well that will produce fortwenty years."
Most sciences and many industries have embraced the thoughts and procedures derivedfrom the new science of Chaos. Civil Engineers and Land Boundary Surveyors are theexception, they are not strong in this faith. This is probably because Chaos somewhatsupplants Newtonian Physics and Euclidean math and the Engineers within cast stonesupon the believers. Another metaphor would be the proverbial crawdads in a pan.
Heart specialists have benefited from the Science of Chaos in the form of valves thatminimize chaotic turbulence, for turbulence is the birth place of blood clotting. All of thisis understood by other Heart Specialists.
Petroleum Engineers use solutions derived from the Science of Chaos, all understood byother Petroleum Engineers.
Ecologist now understand that if nature is left alone it WILL NOT be good, allunderstood by other true Ecologists due to the new science of Chaos.
Jeff Lucas proclaims the superiority of chaotic evidence over forced order and isunderstood by nobody.
An ecologist counted bees, bumble bees, carpenter bees all in competition in the samesphere. His model broke down because he forgot to count the ants. So he counted theants and adjusted his model.
When a Land Boundary Surveyor fails to restore a missing corner to its original positionsociety is injured, the model breaks down and our profession catches hell. We count thefeet from distant monuments, we count the topo calls and bearing trees but we nevercount fences. Fences are the elephant in our living room. The BLM 2009 Manual is anexample of our reticence to adjust our model. At §6.19 and 6.43 the manual implys thatfence lines are only use lines and only good for private adverse possession claims. Backed up by centralize government, the surveyor is darned if he will ever change hismodel. (Know what happens to people who say "darn"?)
There are tall fences, short fences, long fences, chain link and board fences but no onecounts them. No one has studied them as a science. There are no thesis, no opus, nobooks on how to analyze fences as stand alone evidence; for good cause since such use offences as evidence is verboten §6.41 in the 2009 BLM Manual. Consequently a rancher'sson has a better shot at identifying a missing section corner at its original position thanBLM's Cadastral Surveyors or our four year graduates.
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WHY DO LANDBOUNDARYSURVEYORSAPPEAR SO
BACKWARDS?
Our reticence is also due to the engineer within us. We all stake curb and gutter to paythe bills, so much so that boundary surveying is more of a hobby for some. However, forthe sake of our profession, it would help if the next time the Engineer in us commits to a$150,000 scanner, that the Surveyor in us spends $500 for a copy of Clark on Surveyingand Boundary. There he will learn that "The courts consider fences the most important ofevidence". Buy two and loan a copy to BLM.
An old engineer/surveyor told me that when he died he was going to have two questionsfor God. 1. "Why does everything tend toward disorder "(entropy). 2. "What's thecorrect method for restoring a missing section corner". "I really think that he willhave an answer for the first one", he said.
Actually, the new science of Chaos has answers for both. 1. Chaotic systems are robust and self-regulating and thus defy the conventional 2ndLaw of Thermal Dynamics. Respiratory, nervous and cardiovascular systems areexamples of chaotic systems. Imagine the complications of the intertwining of these threesystems within our bodies. On top of that, no cell in our body is more than three cellsfrom a capillary. These systems allow organisms to live a long time and even improve inhealth. This is very unlike forced order systems which, according to the 2nd law, alwaysdecay from their moment of origin. Likewise, if forced order is imposed upon chaoticsystems, they will sicken and die. The court mandated use of evidence is not compatiblewith the Euclidean system of proportioning. 2. The proper restoration of an original corner can best be determined by the USE (notjust review) of ALL evidence. This process can indeed appear chaotic.
BACKSLIDERS
WHY ARE LAND BOUNDARY SURVEYORS SO BACKWARDS?(Why do so few listen to Jeffry Lucas?)
The Visa card organization was the first commercial system based upon the concepts ofChaos, or decentralized control. Its growth and success was, and is, phenomenal.
I believe that the backwardness of an industry is directly related to the amount of timeunder centralized control/guidance.
The following are industries that are now controlled by the Federal government.
Petroleum Industry for 35 years.Ecologists about the same.Teachers about 20 years.Heart Specialists & other medical specialists, one month.Land Boundary Surveyors in the PLS states have been thus supervised for 220 years.
Did you read Mr. XXX's ballyhoo in 2008 introducing the new 2009 BLM Manual? From it one would believe that private surveyors cannot function without BLM's newmanual and continued guidance. Can you imagine the rancor from AMA if such waspublished about heart specialists? There was ZIP from our societies.
Well, these other professions and industries have a real let down coming, they willassuredly become just like us. I try. I really try to control the rebel, but this diner don'tserve no milk toast.
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You might have noticed that our abstract for this course was based upon the 1973 BLMManual. It is hard to give up the old Bible and support a new one. Besides, whenever I getinto the 2009 Manual I soon feel as though I have had a brain aneurysm. (Try 3.137, 7thparagraph.)
The following table is my review of the 2009 Manual forits pros & cons on proportioning.The following table is
my review of the 2009Manual for its pros &
cons onproportioning.
THE NEW SCIENCE OF CHAOSAs a metaphor for Land Boundary Surveys.
Presented by Chad & Linda Erickson,
"You don't see something until you havethe right metaphor to let you see it."
Thomas S. Kuhn.A PROFESSION DIVIDED
Fractal images, such as this, are examples of
"Out of chaos can come order."
Our Survey Profession is an example of:
"Out of forced order comes chaos."
The following are examples of theadvocacy of evidence (chaotic) in the 2009BLM Survey Manual . BOO! on proportion.
3.135 "...The BLM...(believes) thatdisputes (over) corners are to be settledby the proper local authorities..."
5.32 Where a survey was not faithfullyexecuted and cannot be reconstructed tofictitious Field Notes, the boundaries areestablished as nearly as possible inharmony with a court of competentjurisdiction.
5.13 Resurveys should relieve existingdifficulties, not introduce new ones.
5.28 There is no legal authority forconverting a Dependent Resurvey into anIndependent one.
5.29 Fundamental Law of Original Corners.
5.75 Rules cannot reconstruct a grosslyerroneous section or fictitious Field Notes.
6.1 There is no greater need than to main-tain stability with regard to property rights.
6.2 "The methods described here followleading judicial opinions..."
6.17 "An obliterated corner...may berecovered by substantial evidence fromthe ACTS or reliable testimony of thelandowners."
6.41, 46;10.23(2) Burden of proof uponparty claiming differently.
6.58 Special conditions exist where theoffical record is fictious, fraudulent, orgrossly erroneous... (Can common be special?) .
6.63 Fences & roads are the best indicators of original position.
7.43 "The evidence outweighs the record."
10.28 In some townships Federalre-surveyors did not apply dependentresurvey principles, these surveys wereapproved, accepted and filed. (confessionis good for the soul)
10.213 "...the position of a lost orobliterated corner...must be determinedfrom the best available evidence..."
"HARD TO BELIEVE THESE ARE FROM THE SAME BOOK"
The following are examples of "forced order" in the 2009 BLMSurvey Manual, which give aid and comfort to CadastralEngineers and Mathematicians: YEA! for proportions.
3.137 Existiing C1/4 corner monuments can be set asidewhen there was a departure from correct methods.
3.217 Where all original corners are fully identified...additional resurveys are necessary. (aneurysm time again)
5.36 Resort to Field Notes.
5.49 Plan on proportioning.
5.50-75; 6.69-77 Independent Re-surveys are given a new,expanded and caviler makeover, from 1 page to 6.5 pages.
5.77 (10-12); 6.5 The Cadastral Surveyor is/isn't in the sameposition as the local surveyor.?
6.11 This list of substantial evidence does not includefences. Shhh, there's an elephant in the living room.
6.13 (3) Evidence should not be greatly at variance with therecord.
6.16 "No decision will be made...until every means has beenexercised ..." In the 1973 manual the word was " developed "; in IBLAs the word is " reviewed ". (These are all weasel words. Precedent demands that evidence be " used ".)
6.17 A position that depends upon collateral evidence mustconform with Field Note distances. (proportion again)
6.18 An obliterated corner may be recovered by witnesses. (Witnesses? This stuff is left over from the 1930 Manual.)
6.19, 36, 41, 43-46 The word "fence" is used 8 times, alwaysfollowed by something like, "The surveyor has no authority toaccept...fences as prima facie evidence..." (6.41)
6.43 In PLS states the BLM Manual always trumps state law,even for private lands.
6.45 "Once a (private monument) is accepted in an officialsurvey (BLM) it has the significance of an original corner." (Lord have mercy on the states that have adopted this manualand its definition of "original".)
6.49, 53 County & Private surveys are non-official. Ditto.
6.54; 10-23 Indian corners can be moved.
7.3 Proportioned corners take on the authority of the originalcorner.
SUMMARY & COMPARISON1973 6 Boos; 8 Yeas; Ratio of 3/4:12009 15 Boos; 24 Yeas; Ratio of 5/8:1
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Linda
Note
Fences are only used to advance Adverse Possession
All but the editor will agree that the 2009 Manual is much more verbose than the 1973one; why say it with two or three words when 12 will do. It is also fair to say that the2009 Manual is as much of a confused mess as the 1973, both apparently being theproducts of committees and compartmentalized authors, each not knowing what the otherwas writing.
What we do see with the 2009 Manual is not just an increase in instances, but an actualpercentage increase in advocacy of proportioning.
Of course we are all aware that the 2009 Manual reduced the evidence standard fordefining lost corners from Beyond a Reasonable Doubt (B.A.R.D.) to Substantial. Butwhat difference does that make if the Manual constantly instructs us not to use evidence ifthey do not conform to proportioning? (6.13[3] and 6.17 for examples)
BLM Cadastral Surveyors draws near to evidence with their lips, but their hearts are arefar from it. They are not strong in the faith. In fact, they are weak in the faith. Whichexplains the publics continued objection to Federal resurveys. See American Settler'sGuide, 1895, page 25.
What if the fence is the only evidence in the neighborhood, and all the original fencebuilders have been dead for forty years? This is the norm. I haven't found even a son ofa fence builder since 1996. However, the person who built the fence is still speaking fromthe grave. Speaking in the form of his acts.
When we go into the field, fences are everywhere, they are in the way, metal detectorsdon't work because of them. However, unless they snag our clothes we act as though theydon't exist, as instructed by the BLM Manual.
On December 6th, 1957, two months after sputnik, the Vanguard rocket, TV3, explodedon the launch pad at Cape Canaveral. The tiny satellite blasted free, rolled into the bushesand was broadcasting its radio signals. Columnist Dorothy Kilgallen asked, "Why doesn'tsomebody go out there, find it and kill it." (Moon Shot by Alan Shepard and DekeSlayton.)
Not only has the Cadastral Survey Section outlived its purpose, it is as unsuited forre-surveys as are all Engineers. The noises coming from their manuals are asinappropriate to a Land Boundary Surveyor as a satellite broadcasting in the bushes.
I decided last week that I'm going to take a low profile.
The...instructions are not alwayscomplied with by rascally
surveyors...Settlers should see that the
surveys in progress are correctlymade..and complaints ofirregularities...sent to the
Surveyor-General.The American Settler's Guide, 1895
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Fences are everywhere. Linda elaborates, "I used to say to Chad, 'Why am I alwaysmending your pants." Now that the kids are gone and I'm working with him I am alwaysmending my pants.
Do you realize how greatly BLM's workload and litigation expense would decrease ifthey respected about 80% of the ancient existing fences?
But, how to do this; where are the guidelines for the acceptance of fence corners?
What we need to do is make the fence wire talk. There is no 5th Amendment for fencewire. They can be made to incriminate themselves.
HOW TO MAKE WIRE TALK
The evaluation of fences and their barbed wire is a dissertation in itself but we will brieflyaddress them here. 1. Like the first railroad builders in the west, who used untreated ties with the intention ofreplacing them once the money came rolling in, the settlers did not at first use galvanizedbarbed wire. For greater strength, less money and less freight, the settlers boughtungalvanized barbed wire, but unlike the railroads, never got around to replacing them.
Like the Avon Lady, peddlers went from farm to farm with buckboards loaded withbarbed wire. The local railroad sidings were full of box cars loaded with barbed wire. Though he did need a lot of wire, the settler didn't have a lot of choice. The typical settlerneeded about 2 1/2 miles of it to fence his 160 acres, plus cross fences. With four strandsthat is 10 miles or 40 rolls. At $5 per roll that is $200.00 per homestead, the same valueas the land. The $200.00 doesn't include the posts.
However, I find that in areas opened for entry after 1910 all the wire is galvanized; themanufacture of ungalvanized wire must have been discontinued before that. This servesas a rough guide in dating fences.
2. Though not stated, fences were implied in the Homesteading laws and in the "provingup questions". The proving up questions were well known and feared by the settlers.
R L S
REGISTERED
LAND
SURVEYOR
Fence Wire - Make 'em Talk
HOMESTEAD PROOFTESTIMONY OF CLAIMANT
Question 4. When was your house built on the land and when did youestablish actual residence therein? (Describe said house and otherimprovements which you have placed on the land, giving total value thereof.) Question 7. How much of the land have you cultivated each season andfor how many seasons have you raised crops thereon?
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Usually livestock preceded or came with the settlers and with these around you could notraise anything if you did not have fences. The settlers' journals and letters show thatfences were often the first, most expensive, and time consuming of all their improvements.The fences cost more than the land was worth, but were a complete necessity if thehomesteader was going to "cultivate" and claim so in front of witnesses.
The anticipation of the "proving up" questions can be seen in this conversation taken frompage 418 of the book Choup Nit Ki by Jane Gay. The book was compiled in 1896. In thisparticular case Techoke was concerned that a recent Attorney General's Opinion mightmake him ineligible for an allotment:
Special Indian Agent, Alice Fletcher: "Is your land fenced, Techoke?"Techoke: "Yes, all fenced, and all plow."Alice: "Very well, I do not think it can be taken from you."
(This 829 page book, with hundreds of photos, can be downloaded athttp://pds.lib.harvard.edu/pds/view/3463914?n=15)
3. Walk the fences and watch for an excessive number of splices, particularly where allwires are spliced at the same place. These are indicative of a fence that was moved whenhomesteads were consolidated. In wet climes the brush and trees overgrew the fences inabout 15 years, so that the wires could not be moved without cutting them. After 15 yearsof such residency, moving a fence would necessitate the wires being cut at the points theywere overgrown, and thus the many splices. This photo shows a rusty fence accepted byBLM in 2005. However, this area has 30" of precipitation per year and the fence has 66splices in 800', with seven instances of splices on all wires at one spot. This is way toomany splices, and besides, the oldest tree ring count only goes back to 1935, while theopen-for-entry year was 1895. While the fence wire is pre-1910, the wire tells on itself byshowing that it has once been moved.
4. Wire in trees: Sometimes you see wires in pairs protruding from trees. In thispicture we see three pairs pointing west. When we cut this tree open (with permission)each west facing pair was actually a single north-south wire with the staple on the westside of the tree, at the 1897 year ring count. Apparently the N-S wires were cut long agoand the tugor pressure of the tree pushed the loose ends together, making the single wirelook like two wires pointing west.
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5. Also, when walking the fence, if you see that most of the cedar posts are rotted offand held up by iron "T" posts, you probably are looking at a homestead era fence. Like-wise, a fence that has fallen over and is now hidden by the grass is very stable evidence.
6. Expect the fence to be straight and cardinal, but not always. A reasonable fencecorner is evidence that the settler had the original monument at hand when he built thefence, but he may not have known where the line ran. If the fence is on line after it passesover a ridge then you can be certain that the fence builder had aid from a surveyor, for noone else can do this. (It was a favorite trick of timber cruisers to hide alignment errors atridge lines, where an average client could not detect them.)
So we see that fences and wires can speak for themselves. In my opinion, if you haveconfirmation on the first four points then you have substantial evidence and the burden ofproof is upon those who claim otherwise.
Of course, the fence corner position must be reasonable from at least one direction andyour Record of Survey plat must show ties to controlling corners. FRAUDULENT SURVEYS
We are all familiar with the fabled "bar room, "hotel room" or "tent" surveys of yore. There are two items of note here.
1. This fable is overused as an excuse for not searching for a missing monument, when infact the problem is that the surveyor is not using a large enough search radius. (60' radiusstory)
2. Either the fraud in Federal surveys never went away or it has returned.
The January 12, 2014 issue of the Washington Times contains an "Editors' Pick"concerning "lawlessness of government officials" in seizing private lands. "Later thisyear, the U.S. Supreme Court will rule whether the Forest Service can keep it."
Of course these issues belong in court, but not all cases are so favored, what if the USFSmoved for dismissal on the grounds of sovereign immunity, and it was granted? This isexactly what BLM has done to one of my clients, and, since he did not get his day incourt, I'm going to do a case study of his survey.
CASE STUDY. HOWELL VS. BLM.
My client had a large equipment repair shed, a very large heavy equipment yard and alucrative quarry, all next to a scenic creek. He also has a high profile neighbor whoinspected and complained daily to EPA, BIA and State Department of EnvironmentalQuality (DEQ). [Get the picture?] Using these techniques this neighbor had beensuccessful in the past in shutting down a timber processing plant in the same canyon.
My client lost all of these assets when BLM shifted long accepted 1/16th lines 160 feet tothe east, ignoring ancient fence lines and corners and 11 documents of record. BLMprevailed in the resulting IBLA, (surprise, surprise) but BLM ducked my client's appeal toFederal court by claiming sovereign immunity.
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The following are three of the reasons that BLM chose to duck Federal court.
1. The SW corner of Sec. 15 was re-established by BLM using two criteria; A. Topocalls; and B. Recovered barbed wire. These were weak for the following reasons:
A. TOPO CALL: The 2009 Manual's criteria for the use of topo calls is as follows:
1. "The determination should result in a definite locus within asmall area."There were a total of six 1891 topo calls in the area. BLM onlyreference two because the others were obviously fictitious. The twoused are on the west line of Section 15. Section 15 is a seriouslydistorted section. Comparing the coordinates of the undisputed SEand NW section corners, there are an extra 250' in northing and anextra 350' in easting. Therefore, the two possible positions for a callon the west boundary of the SW1/4 would be 125' apart, dependingon whether you are coming north from the southwest section corneror south from the west 1/4 corner. (See 5.39) The two 2005 calls are for a ridge at 11.70 chains and a spurridge/Indian trail at 24.70 chains, each bearing NE-SW.
Section distortion, biased bearings and excessive distances yields atopo call locus radius of more than 100'. More than 200' if you throwin the easting distortion of the section.
2. "The evidence should not be susceptible of more than onereasonable interpretation."The problem at the 24.7 chain call for Indian Trails is that no Indians,or any one else for that matter, have used this route since about 1900when wagon roads were built in the Lawyer's Creek and Seven MileCanyons. The BLM Surveyor and I spent days wandering thehillsides looking for theses trails, to no avail except for a cow trail ontop. The 1891 notes did not call for a ridge.
The 2005 Field Notes boil it down by stating: "24.70 Chains, Top ofspur, slopes NE, trail bears NE and SW." Is the 2005 cow trail(singular) on a ridge the same as Indian Trails not on a ridge in 1891? Talk about syllogisms. My wife, the logician, assures me that thesetwo statements are self-excluding.
3. "The corner locus should not be contradicted...by othertopographic notes." While BLM is correct that the only reasonable topo calls are comingsouth from the NW corner of Section 15, the other fabricated topocalls cast doubt even on these. Like broken clocks, I don't trust anyof them, even though they confirm my position as much as they doBLM's. This was a very poor practice on BLM's part.
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DELETE
2. In order for BLM to be comfortable with their decision at the SW corner of Section 15it was necessary for them to discredit our fence evidence, and this they attempted at aHercule Poirot style meeting of all parties involved. Five people were present when thewire tree at point number 548 was cut open.
B. Recovered Barbed Wire.Though they are 160' apart, both BLM's and my own SW corner of Section 15enjoy nearby fence remnants. This is because both positions fall on a very steepmountain side, across which once ran an 1897 barbed wire fence. Remnants ofthis fence have been carried downhill by snow movement and can now be foundin a north-south band about 400' wide. Fence evidence is not difficult to findhere, it is everywhere, the challenge is to find reliable fence evidence. Judging from the wires in five N-S trees this fence was abandoned shortly afterpatent was issued (the fence was in a very impractical position, probably servingonly to satisfy homestead requirements).
At BLMs SW corner of Section 15 we found their two wires. They were bothloose. One was laying on top of boulders, with a kink in it and the other wasprotruding out of the duff. We pulled on the latter and it came snaking out ofthe duff, attached to nothing.
Now, lets make this perfectly clear. We found BLM's brass cap and the wireslying near the brass cap. At image 49 we read: "The exact position of the fencewas found by a remaining strand of wire which corners at this position." Thiswire is the one lying loose upon the boulders and it has a 90 degree kink in it. When someone finally visits this site they will find the conditions as I amreporting them.
BLM then states that my position (wires embedded to 1897 in trees) "is notsupported by the evidence." Thus implying that their loose wire with a kink ismore supported than my cardinal fence intersection marked by seven trees withwires. The purpose of this dishonesty was to convince others that their surveywas correct. The effect of their survey was to move my client's east propertyline 160 feet to the east and compel him to no longer operate his quarry site. Iconsulted two attorneys and they concur that, if my statements are accurate, thisis fraud on BLM's part. To thus report in such a dishonest manner, in order tocompel another party to act in a way that is against his best interests, is fraud.
The evidence that we recovered and used were five trees with N-S wires and twotrees with E-W wires embedded at the 1897 growth rings. Both lines arecardinal, reasonably straight and at their point of intersection we found remnantsof a rock buck. We set our monument at the P.I. The bearing of our west sideof the SW 1/4 of Section 15 is N 0⁰00'35"W. That of BLM's is N 1⁰34'00"W.
This cardinal bearing on our recovered line is a good example of the effect ofSolar Compasses upon the precision of GLO's surveys. The chaining was stillpoor, always short on steep hillsides, but the bearings, even in rough terrainwere good, at least on those lines that were actually run. And how do we knowthis N-S fence line was surveyed? In its one mile length, the fence it passes over4 ridges but the bearing remains cardinal and consistent.
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After opening the tree and revealing that the wires were indeed oriented N-S and dated to1897, the BLM surveyor announced, in a somewhat staged voice, that this was just part ofa bluff line fence.
This tree #548 is approximately 200' east and 80' below the bluff line; obviously it is nota bluff line fence. We could only stare at the author, wonder at his metal state, and hopethat he got better. Though his statement was not used in the 2005 BLM Field Notes, itwas presented in the IBLA.
3. The Fence Corner That Wasn't.
There are four sectional corners on the south boundary of Section 16 that were set by theGLO in 1891, including a Nez Perce allotment corner at the East 1/16th. It is the East1/16th corner that is the subject. At this corner are ancient existing fences running southand west and the corner is definite and prominent. The fence running west bears theearmarks of a land theft fence.
A little study and search disclosed a berm line with rock bucks running east and six rockbucks running north. The BLM monument is at the first rock buck to the north.
Their reason for placing it there is given as this: From this cor., a cor. of fences bearsS.4 29'W., 0.57 chs. dist (38')...This cor. of fences was not accepted because it does notline up with the complete fence to the west.
There cannot be anything more backwards than this statement, for these reasons:1. The GLO set the allotment corner monuments; thus the allotment fence builder wouldhave known where it was. Thus the first tangent of a fence points back to its origin, theoriginal corner.2. GLO probably did not leave a blaze line on this prairie, thus the fence builder wouldnot have known where the line was and wandered a bit going in and out of the draw. Also, a radical change in bearing in the second tangent is often an indication of land theft.
3. The fence running west does not have an inordinate number of splices.
By ignoring the ancient fence corner and declaring a rock buck 35' to the north the corner,BLM was able to "confirm" the northing for its SW corner of Section 15. This is eitherincompetence or another instance of fraud. Pick your poison.
Summary of Section 15:
It is not just stubborn adherence to bad practices that BLM is guilty of. In this Section 15there is obvious dishonesty on the part of the Cadastral Survey Section, politicalmanipulation, fraud and a "might makes right" attitude. These are charges that echo outof the misty past of the GLO: bar room and hotel room surveys; but that was fraudagainst the U.S. Government. This is fraud by the U.S. Government against the people. And there will be no day in court for the injured. There goes the Magna Carta and “No person shall be…deprived of life, liberty, or property, without due process of law”(5th Amendment to the US Constitution).
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This is the world of Chaos that we find our profession in.
Has anyone else heard of BLM claiming sovereign immunity for one of its surveys? An investigation would be easy to do. 1. You have already seen the culpability of the 2005 Field Notes.2. A simple visit to the field will confirm the fence wire trees, the non-fence at BLM'sSW corner of Section 15 and the "fence corner that wasn't".
CONCLUSION
Webster Lake, Massachusetts.The "You fish on your side, I fish on my side and no one fish in the middle" form ofboundaries does not rely upon numbers. However, give this agreement to proportioningadvocates and they will have the river in the wrong section, dammed up and claiming thatthe fish belong to the king.
According to the Science of Chaos, a complex system compelled to order is unhealthy,tending toward oppression, corruption and death. Just so, to resurvey relying exclusivelyupon simple mathematical formulas brings sickness to private property rights, and ourprofession. However, the struggle to use and resolve chaotic evidence brings life andorder to private property rights, and our profession. As we have seen, chaotic evidence isself-correcting. The ordered approach will actually lead Engineers away from the originalcorner.
Our Land Boundary Profession is now in phase transition. Like water between 32 and 33degrees Fahrenheit, our profession is caught between influences inducing it to remainmathematical and corrupt, and court cases such as Dykes v. Arnold demanding that weclean up our profession and use evidence.
To paraphrase Dee Hock from his book Birth of the Chaordic Age, “Like a dead log lyingon a young sampling, the BLM, and its mathematical system has warped and restrictedthe Land Boundary Survey Profession almost beyond correction. We can not foresee allthe ramifications of removing the dead log, but we can state with certainty that suchwould be an improvement.”
The GLO/BLM’s original purpose, to subdivide the public lands into townships andsections, was essentially completed in the 1940’s. Since then they have shown themselvesill-suited to the rigors and theory of survey retracements, and careless of private propertyrights even to the points of dishonesty and fraud.
Thanks to Jeff Lucas and Dykes v. Arnold, there is now an ample and growing supply ofcapable, private Land Boundary Surveyors to take their place.
It is time and past time that the dead log of BLM's forced order was removed and thepower of the evidentiary system released; and herein we have hope and a dream.
SUMMARY:This has been a study of the Fundamental Law of Original Corners. It has presented theNew Science of Chaos as a metaphor in understanding the importance of the full USE ofevidence. It has compared our profession with other professions and industries todemonstrate our lack of creativity (re backwardness) in handling our problems. We havecompared our unique 220 year sojourn under the control of a centralized government anddemonstrated that this is the source of our problems.
BLM's poor performance has been demonstrated in a case study.
CONCLUSION:Until the dead log of BLM's control, in the form of their poorly formed manuals andnon-exemplary surveys, is removed, our profession can not be restored to the image andstature that is deserves.
Thanks to Jeff Lucas, Dykes v. Arnold and CEFEDS, there is now a cadre of capablesurveyors poised to take the lead.
