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Home arrow Archives   The American Surveyor     

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Written by Various Letters to the Editor   
Saturday, 01 February 2014

A 1.128Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

Pallamary's Having a License Doesn't Make You an Expert
I believe Curt Brown wrote about how the better men will not stay at the chainmen level. Those so inclined to the challenge would eventually rise above their current positions, looking for greener pastures. Granted, licensure does not automatically entitle one to the status of expert. But when there is a noticeable void, the intelligent tend to fill it. My understanding of Daubert is the Court is the gatekeeper. Therefore, for one to reach the status of Expert, he or she must make it past the gate. We do that by subjecting ourselves to a test of our professional knowledge and practical application of the scientific method of measurement for boundary surveying. Ideally, once tested we gain additional experience and continue on our way to climbing the ladder of expert status.

The unfortunate part of our business is that there is no differential between someone as experienced as yourself, compared to myself, one who is still climbing the ladder. We also do not hang shingles outside our door that boast of "Passed the Exam in the First Try" or "An IQ of 159". If we did so, we would be tarnishing the meaning of professionalism. We have to respect the title the Public has bestowed upon us, one being equal to the other.

What intrigues me is your motivation for writing the article. Do you see a rise in those that claim to be experts? Do you think someone like myself may be venturing into the expert arena prematurely without standing? I have thought long about this issue. Every time I come back to what Curt summarized below. Not to say what an expert does is as simple as this, but the principles are sound.

Quoting The Curt Brown Chronicles, pg. 435:
A. All Questions put to him should be answered clearly and intelligently.
B. He should be absolutely unbiased and honest.
C. He should have real expert knowledge of his particular subject.
D. He should be prepared to discuss the opinions of other authorities and state why he agrees or disagrees with them.
E. His testimony should be limited to things and opinions that he can defend before experts in his particular field.
--Casey Lynch, PS
San Diego, CA


Land Locators
I enjoyed your articles in The American Surveyor regarding the responsibilities of the land surveyor to protect private property rights.

You have mentioned the role of the Land Locator in the disposal of the public domain. There is a book authored by one George Bolds titled "Across the Cimarron", which is his first hand account of his experiences in Southwest Kansas (including acting as a Land Locator). He arrived in Dodge City, right after the peak of excitement there as a rough and tough cattle terminal.

He had served as an apprentice to a surveyor in Iowa, I believe, so, after arriving in Dodge he soon started surveying for the land office. Homesteaders were actively looking for land around Ingalls and Cimarron, Kansas. He briefly describes his surveying activities, saying that there was a lot to do. He also describes being shot at some when surveying land around a bordello. Later he was involved in the county seat war between Ingalls and Cimarron when he and others from Ingalls went to Cimarron and took the county records by force, a running gun-fight ensued down the main street in which he and others were shot up but arrived in Ingalls with the county records.

As further evidence that land locators (were also surveyors); Bolds, being a trained surveyor, performed the subdivision of sections and established the original boundaries. I am from western Kansas and have worked and lived in both Ingalls and Cimarron.

I know that those old bois d'arc fence corner posts at the corner of "quarters and eighties and forties" were set at the corners of the properties, and many are still in place, though the barbed wire has been removed. I know this because as a child and teenager I was made aware that those old fence corner posts still mark the original corners. Also, one did not remove those posts. They keep the farmers from "farming over" on each other.

I operate in New Mexico now; which is ripe with federal encroachment on state and local sovereignty, not to mention complete ignorance of private property rights. I can offer several incidents of "Manual Madness" right here in New Mexico by private surveyors and government contract surveyors.

You may be interested in the "Mountain States Legal Foundation" by William Perry Pendley, Esq. They represent individuals in legal battles vs. federal government, over private property rights, etc. They email a report called "Summary Judgment" that is quite interesting and sometimes involve original boundaries and rights-of-way.

Please continue with your articles. I really enjoyed the Russell painting on the front cover; I have a couple of Russell prints hanging in my office. Russell's paintings are authentic right down to the bits, spurs, and saddles used in the northwest during his time.
--Jeff L. Richter, PS
Truth or Consequences, NM


The Ericksons response:
I don't know if it would be as water or gas, but this fire storm needs your written account(s) of abuse of survey discretion by the BLM; and any others who have a bucketful to throw. --C&L Erickson

Response from BLM to Erickson's articles:
Marc,
We, you and I, have recently been barraged with writings from Federal officials disparaging my articles on BLM's surveys, but in each case they have refused to be published and identified. One, in the past, has been a spokesman for the BLM.

Though these authors remain unidentified, there are three lines of truth from these writings that ring like cold, hard steel and must be told.
1. "No, (because of BLM's claim of sovereign immunity) the case was not allowed to proceed forward (in Federal Court) to be weighed on its survey merits. Chad can feel wronged by the system..." (BLM)
2. "If one does not like the law, then complain to Congress." (BLM)
3. "I sense a tendency of the BLM (in some, very few, cases) to throw a bomb into the neighborhood, see what happens, and then, based on the reaction, start pulling corners, moving corners, calling brass caps "administrative corners", etc., or worse, digging in their heels and hiding behind sovereign immunity." (Marc Cheves)

The only thing that my limited ability can add is that the way to Congress' attention is via agitated public opinion and the best way to agitate public opinion is through the media.

It also doesn't hurt that in the meantime the proverbial 2x4 is over the BLM Cadastral Survey Section.

Now that we have their attention, here is the message:
1. Stop hiding bad surveys behind sovereign immunity in Federal Court. How un-American. BLM does not claim sovereign immunity at its own IBLA. (Hmmm. I wonder why?)
2. Start performing proper surveys, beginning with a BLM directive that ancient fence corners can be stand alone evidence and that in most cases ancient fence corners are evidence of where the original corner was understood to be. It would then be up to any naysayers to prove otherwise, not vice versa. Remember, "The courts consider the evidence of fences more significant than any other form of evidence", Clark on Surveying & Boundary 15.10 (the manual is supposed to be based upon court precedent).

These two actions will stop my bashing of the BLM in the media and allow appeals to proceed in a court of law, where these things belong.

It might also be pointed out that it is much easier for Congress to pull funding than it is to pass a law, BLM's cooperation in these two actions would be to their advantage.
--Chad R. Erickson

Twisting the Tiger's Tail
Congratulations for "twisting the tiger's tail". I did that back in '93 in La Plata County, Colorado where the agency performed a bunch of dependent resurveys, ignoring all the true boundary procedures in their cadastral decision making. Would it not give you pause to be setting a new section corner monument in a lady's front yard when 100 feet away was a three way fence corner with a private monument that fit the record distance to a recovered stone sectional monument by less than ten feet?

Long story short, I could get no answers at all out of the field office in charge so I called my congressman and got some action. Some of the agency surveyors involved have hated me ever since for proving the emperor had no clothes on. The true creator of the CFeDS program wanted me to come up the street and give a half day at the BLM national training center here in Phoenix on mineral survey retracement but he was soundly rejected just because it was me. They never forget. I paraphrase their remark: "John Stock will never set foot on BLM property as an instructor." Oh well, maybe the old guard has retired by now. Of course the market is gone now so it is an academic discussion.

We can't be afraid of their blustering and deep pockets. Just bury them in research and repose, so to speak. I guess they haven't read Dykes v. Arnold.

I am making the assumption you have read Jeff Lucas' new book on Pincushion Corners, if not you should do it. It adds some fuel to the fire.
--John Stock, RLS,CFM
Via the Internet


The Ericksons response:
Thanks. Such kind words have been most welcome since we began pointing out "that the emperor has no clothes".

Such problems as we write about really belong in a court of law and roiling the waters usually does not help our clients. However, after BLM pulled the "sovereign immunity" trick and the Federal judge dismissed the case; the only alternative was to try the case in the court of public opinion. I am willing, and would rather, pool my research with BLM's surveyors, and come up with a solution "based upon the best remaining" evidence. And no I don't think that I have a corner on survey wisdom, but they shouldn't try to herd up all the stupidity either. It is unbelievable some of the tricks that they have pulled. A quick story: The latest brouhaha with BLM involves three key double fence corners. At the first double fence corner they accepted the one that was 30' on the wrong side of the creek from the 1891 topo calls. At the second they set their monument 1/2 way between two ancient fence corners although it was obvious from wire type and direction which was the original corner of the 1891 Nez Perce allotment. At the third, where there were very obvious remains of a four-way fence corner with rock bucks going in all four directions, they created a double corner at a rock buck 35 feet north of the ancient corner. Go figure.

By the way, one of our clients cannot sleep at night and has suffered two heart attacks since he began receiving trespass notices from the Federales. But he brightens right up and gets a new lease on life every time one of our articles come out. (No he isn't funding our writing.)

Forgive the religious metaphor but Jeffery is the Jesus of the "Use the evidence" movement and he has a few good apostles and a lot of detractors who stone him at every chance they get. If it wasn't for Jeffery I would still be one of those lost souls burning in the hell of proportioning. Unfortunately, if I should ever claim to be one of Jeffery's apostles it would have to be as a Paul, the one who never knew Jesus. (I don't think much of Paul.) Guess you can tell that I like Jeffery Lucas. Love his book.
--Chad & Linda

More on BOSH!
Your recent article in American Surveyor caught my eye. The inset "Bosh" myth article is great! I add to the second myth that the Connecticut Western Reserve in Northeast Ohio and the First Seven Ranges might be historically viewed as "co-current" surveys. Thanks for the great submission to A.S. ! Why is it that "proportioning" is a last resort but is the first thing taught?
--Jason E. Foose, R.L.S.
County Surveyor


Anonymous responses to Erickson articles
Editor's note: Letters from Federal officials are difficult to address because the writers not only wish to remain anonymous, they insist that not even their words be used.

From Anonymous (paraphrasing): "Mr. Erickson's tone is that fence corners and other parol evidence are always ignored by BLM surveyors. This may have been true in the past but it is not true now. Our surveyors are trained to review all evidence before resorting to proportioning. Furthermore, IBLA decisions are neutral."

To Anonymous:
You have given us BLM's side of the proportioning story, that they are better now. However, for 220 years the GLO/BLM have at intervals bewailed that "in the past our surveys haven't been so good, but we're better now!" Complaints from settlers, and now adjacent land owners, have always subsequently put the lie to these claims. Why should you get the benefit of the doubt now when your heritage shows that you will never learn.

I daily encounter proportioned BLM corners where ancient and cardinal nearby fences and fence corners were ignored. The ranchers invariably say, upon seeing the BLM monument 20+ feet from the fence corner, "Wow, I never knew that was there. Why didn't they come talk to me, I could have told them that my grandfather told me that the fence corner has always been considered the section corner." Often the BLM Field Notes even call for the fence corner. The 2009 Manual is more flagrant and firm in regarding fences as only use lines than was the 1973 Manual. Tell us again how you are getting better?

Anonymous stop ignoring the elephant in the room. "The courts consider the evidence of fences more significant than any other form of evidence", Clark §15.10., yet BLM does not consider them evidence at all, just use lines.

I have a 2008 statement from the Idaho Director of BLM (it was actually his response in a Federal Case) that the BLM does not consider the recorded statement of a deceased licensed land surveyor as evidence. We have §5.5 of the 2009 BLM Manual setting forth that ALL private surveys suffer from this same ailment, being purported surveys.

I have a 2008 statement from the Idaho Cadastral Survey section that the lines of a distorted section having 350' extra feet in easting and 250' in northing was "well run" and therefore subject to proportioning.

Now, when was it that you "got better"?

Yes, BLM intellectually embraces the use of evidence before proportioning, often using such terms as "The proportionate measurement was not employed until all collateral evidence had been reviewed... Followed up with, A lost corner is a point of a survey whose position cannot be determined, beyond reasonable doubt, from available evidence or testimony." 126 IBLA 361 (91-116). (Emphasis added) The mouth is large and works well but there is little commitment in the collective BLM brain to the use of evidence.

Yes, the 2009 BLM Manual changed the evidence standard to "substantial", but I predict that, unless they keep getting kicked in the butt and pounded over the head, they will simply slide all collateral evidence to "less than substantial" by stating that "BLM does not consider such to be evidence".

I know that I probably come off as a crank, but if you daily encounter the BLM messes that I do, you would be the same. It isn't just sleepless nights and heart attacks that people hereabout get from BLM's high and heavy handed surveys, hereabouts people get ejected from their homes.

However, the heaviest perfidy of BLM is in the example that they set for private surveyors. After the first BLM retracement surveys in this area in the 1970's, all the private surveyors began proportioning everything as well.

To top it off, yesterday I was having a nice series of e-mails with a USFS surveyor when he sends me a copy of the Supremacy Clause. Could this explain Federale arrogance? What he failed to note, probably was never told, is that there are multiple clauses in the US Constitution that limit Federal involvement in private property rights.

In order for our nation and profession to get off the BLM survey merry-go-round it will be necessary to identify and face the problem. That is what I am attempting with my articles. The Einstein, Chaos, Bosh and Land Locators articles are intended to identify and resolve an old problem. BLM is not going to mend their ways on their own; they have way too much power. As Justice Cooley stated, "A bad survey is worse than useless, it confuses the issue."

Perhaps, at least, the day will arrive when BLM will earnestly consult with local surveyors.
--Chad Erickson

A 1.128Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

 
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