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"You don’t see something until you have the right metaphor to let you perceive it", so says Thomas S. Kuhn, he who made us aware of paradigm shifts and scientific revolutions.
Physicists like Mitchell Feigenbaum and Albert Einstein spent years in contemplation, searching for the right metaphors to unlock the universe’s secrets. Some might rather say that they were searching for the right formula, but isn’t a formula just a metaphor with all the color knocked out of it? Einstein’s visualization of a bouncing ball on a speeding train passing a man standing on a railway station platform was reduced to E=MC2.
Metaphors for Surveyors
A kid with a .22 rifle takes a half-mile pot shot at a prairie dog, doesn’t bother to investigate, boasts to his rancher father of how he got it, and demands the 25 cent bounty previously agreed upon.
Later, when the rancher hired a surveyor to determine the location of a ¼ corner, this .22 metaphor helped the rancher understand that he was being swindled again. The Rancher wanted to know if the ¼ corner was the fence corner, or the mound of stone; what he didn’t want was a mathematical guess 30′ out into his cow pasture.
In Longview Fibre v. U.S., 135 IBLA pages 170-186, BLM acknowledged that mid-points-on-line (MPOL) should not be expected to land at original corners. So why has BLM promoted MPOL’s over collateral evidence for the last 100 years?1 If at first you don’t succeed; change the definition of success? Apparently some surveyors believe that order and control are more important than truth and honesty.
I think Alan Sheppard’s round of golf on the moon had a better chance of hitting a cup at a half-mile than our MPOL’S do of hitting the original corner. Why? Because the original corners were not set at the MPOL, even if the GLO surveyor said that he did. I’ve found in the areas where I’ve worked that the smallest deviation to be expected in the 1880-1900 GLO surveys is ±20′ in distance and ±20′ in line. And that is on level open ground. I have four cases in one township where the original ¼ corners are 100’+ from the MPOL.
Which reminds me; once in the Rocky Mountains, in heavy timber and brush far from habitation or road, Walt Willis and I cleared a 60′ radius search area at the MPOL right down to the mowed grass level. We didn’t find the original stone, but we did find a golf ball! Honest.
The golf metaphor has another lesson for us; as you play closer and closer to the hole your shots become more and more accurate. This is like the Patriot/ Scud missile clashes of the first Gulf War. The anti-missile computer was constantly updating, so the closer the Patriot got to the Scud the more accurate it became.
Scudding on the Seven-mile
In the 1970’s a PE/LS set a MPOL near the ¼ corner common to Sections 13 & 14, T33N, R3E, Boise Meridian, in Northern Idaho. In this case the difference in easting between the unquestioned section corners to the south and the north was 212′.
In the 1890’s the solar compass made bearings king and this because chaining errors were common and predominantly negative. When the "Short Cut Method2" was used the chaining errors in a township could accumulate to 100, 200 and even 300 feet, but bearings always remained reliable for those lines actually run. In this case the 212′ error came from chaining errors accentuated by two subdivision schemes, one on the high plateau to the south and the other in the flat bottom lands to the north.
The hunch that this ¼ corner was stubbed out from the north was confirmed by a nearby Idaho County Road Survey, two vacated subdivision plats and a deed, all of which referenced the subject ¼ corner and all dating from the early 1900’s.
From the record documents we located the point of intersection of an abandoned N-S road and an ancient E-W fence that was reported to be 2.65 chains west of the ¼ corner. Twenty feet east of that tie we found a lichen-covered mound of stone set to mineral soil, directly under the east-west fence. From that mound the remnants of a fence ran south. An unmarked stone3 matching the 1891 dimensions lay loose downhill of the mound. Conforming to the Scud metaphor, we set a monument at the mound of stone, which of course destroyed the mound. We recorded a Record of Survey, Corner Record and Survey Report.
Though our monument was 105.9′ west of the PE/LS’s MPOL monument, the bearing and distance to the northern section corner was a conforming N.0º02’32"E, 2663.03′. Evidence and the scud metaphor had returned the ¼ corner to a point that matched the three GLO analyses:
1. 1/4 corners were stubbed out (this time from the north);
2. Bearings are best; and
3. Distance should not be expected to match record closer than ±20′.
In 2005 BLM performed a survey for the Nez Perce Tribe and, using our research, mathematically projected and accepted a point at the 2.65 chain call4. Their bearing to the northern section corner is N.0º29’E.
The PE/LS had taken his shot at 1/2 mile, BLM pulled the trigger at 175′, and we did hand to hand combat with the nearest and best. Who was right? To answer this we need another metaphor and we find it within the new Science of Chaos.
Out of Chaos Can Come Order
Meteorolgy, Economics, Psychology and the human brain and heart are only a few of the studies intertwined and benefiting from the new Science of Chaos. We should not be surprised to find Land Boundary Surveys to be included. More than a few expect it.
The revised Second Law of Thermal Dynamics yields that every ordered system, once created, tends to disorder, while chaotic systems tend to spontaneous self organization. Mitchell Feigenbaum’s Theory of Universality sets forth that most Chaotic systems enjoy this robustness. Therefore it is apparent that the Land Surveyor’s chaotic evidentiary system will inherently return a corner to its original position with greater reliability than BLM’s enforced mathematical calculations. If, as during the above survey of a distorted section, you realize that the Field Notes are a farce, the reliability of mathematical proportioning is completely destroyed. However, in the chaotic evidentiary system, the discarding of farcical Field Notes is not at all fatal; in fact, such shaking, rattling and discarding of pseudo-evidence simplifies the evidentiary system, most often leading to a single, accurate solution.
Another similarity to Land Boundary Surveying is this quote: "To some the difficulty of communicating the new ideas and the ferocious resistance from traditional quarters showed how revolutionary the new (ideas were). Shallow ideas can be assimilated; ideas that require people to reorganize their picture of the world provoke hostility." So says James Gleick in CHAOS, Making a New Science, page 38.
Out of Forced Order Can Come True Chaos
There is chaos from which there is no order. From 1975 to 1985, in the aforementioned township, the BLM performed a Dependent Re-survey of the northern six sections. It was really an unauthorized Independent Re-survey because they rejected all evidence and developed a gran
diose proportioning scheme. Such illegal works are common by the thousands throughout the Public Land Survey States. In this case there were numerous ties given in the 1985 Field Notes to ancient, existing fence corners and centerlines of roads that should have been used for local control, but were not. Having ignored evidence and testimony, BLM violated the fundamental law of original corners. In the intervening 35 years there has been much reliance upon some of these new brass caps. Where are the Section Corners? When pondering this chaos, one starts to hyperventilate.
Phase-Transition
The United States Rectangular Survey System is world renowned and imitated for its simple genius in segregating, describing and conveying property and rights. During its 100 years of retracement perfidy and travesty the GLO/BLM has gone far towards destroying this system, and enjoyed the presumption of correctness while doing it.
Our Land Boundary Profession is now in phase transition. Like water between 32 and 33 degrees Fahrenheit, our profession is caught between influences inducing it to remain mathematical, and court cases such as Dykes v. Arnold demanding that our profession use evidence. In his book The Pincushion Effect, Jeff Lucas states that this debate has separated Land Surveyors into two camps.
Axioms
The 2009 BLM Manual of Surveying gives a good perspective to the arbitrariness of the legal profession’s Standard of Evidence Scale, at least where it applies to land survey issues. Suddenly, BLM’s evidence standard was lowered from the highest level to the second from the lowest. Not only is this ludicrous, it has the sharks circuling. The standard should never have been so high, but now BLM’s lovers of mathmatical order are simply sliding recovered evidence to "less than substantial".
The Federal Standards of evidence clarify this issue: in land boundary determinations all evidence is admissible.5 On this note I’ll state my first axiom: When a property corner is missing Surveyors must gather any and all evidence. Second, we must use the ancient Surveyor’s evidence standard and make our deteminations based upon "Nearest and Best" evidence. Such is self-explanatory, readily applied and easily defended.
There is a third axiom begging to be brought to light, "The gatherer should make the call." BLM prohibits field personnel from making determinations6, saving that for what we in the field called the "pretty boys", who early in their careers were selected to reside in the office. "Pretty boys" have comparatively little field experience. Large survey firms with four crews under one RLS find themselves in the same situation; the one least familiar with the evidence is making the calls. Can you imagine the outcome of Einstein’s "man on the railway platform" metaphor if the man had had to wait until someone 200 miles away told him what he really saw on the speeding train? Instead of E=MC2 we would probably get: (see PDF for graphic)
Because discovery can destroy evidence, Archeologists have the presumption that the gatherer is best able to define the significance of his find. The fate of the ancient stone mound in the foregoing case is an example of why surveyors should have the same presumption.
Tribal Surveys
The fact that BLM is fiduciary to the Indian Tribes lately induces it to vacillate between mathematical solutions and evidentiary solutions, compelling it to choose whichever most benefits the tribe. These inconsistencies and inequities are upheld by their own "judicial" IBLA system. They hide these follies from the Federal Courts by crying "sovereign immunity", getting a "pass go" card and leaving the injured private citizens without judicial recourse. So much for the Magna Carta and the 5th Amendment to the US Constitution.7
I remember a similar situation in 1975 when our BLM Alaska Chief Cadastral Engineer, and his aides, returned from a meeting with the US Army Corp of Engineers. They were gleefully and greedily rubbing their hands and repeating the phrase, "If a duck can get its feet wet, you are no longer on your own land".
Conclusion
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 exclusively upon simple mathematical formulas brings sickness to private property rights, and our profession. However, the struggle to use and resolve chaotic evidence brings life and order to private property rights, and our profession. As we have seen at the above ¼ corner common to said Sections 13 and 14, chaotic evidence was self-organizing, bringing us due south of the north Section corner and within 23′ of a perfect ½ mile distance from it. The ordered approach actually led the Engineer 113′ away from the original corner.
To paraphrase Peter Renady from his book Birth of the Chaordic Age, "Like a dead log lying on a young sampling, the BLM, and its mathematical system has warped and restricted the Land Boundary Survey Profession almost beyond correction. We can not foresee all the ramifications of removing the dead log, but we can state with certainty that such would be an improvement."
The GLO/BLM’s original purpose, to subdivide the public lands into townships and sections, was essentially completed in the 1940’s. Since then they have shown themselves ill-suited to the rigors and theory of survey retracements, and careless of private property rights. Thanks to Jeff Lucas and Dykes v. Arnold, there is now an ample and growing supply of capable, private Land Boundary Surveyors. These are not fiduciary to anyone.
It is time and past time that the dead log of BLM was removed and the power of the evidentiary system released; and herein we have hope and a dream. The evidentiary system can yield conditions by which unlimited ingenuity and creativity can be brought to bear on the needs of private property rights, specifically the location of property lines. On the other hand, reality and judicial precedence will not much longer allow us to remain in a forced state where our actions offend private citizens’ rights and properties.
Chad was born the 3rd of 8 siblings, each about two years apart. His earliest memory is toddling into his older brothers’ bedroom and hearing one say to the other, "Let’s see who can hit him the hardest". There have been other educational moments, such as a degree in Land Boundary Surveying from the Flathead Valley Community College in Kalispell, Montana in 1974 and three survey licenses, but none gave him the writing style of "Strike Hard and Run Like Hell" like his formative years. His bureaucracy experience has included working as a surveyor for the USFS, BLM Cadastral Survey Section, US Army Co of Engineers, and the State of Alaska Survey Section. He and his wife, Linda, have operated Erickson Land Surveys since 1986, and have spent the last 19 years exclusively performing boundary surveys. Much of this work has involved retracements of lands adjoining Indian Allotments.
Footnotes
1 The decision of 126 IBLA 361 (91-116) Yeargan v. BLM 6-19-1993 is that: "A lost corner is a point of a survey whose position cannot be determined, beyond reasonable doubt, from available evidence or testimony." Of course, NO collateral evidence can meet this standard.
2 Shortcut Method. See the articles titled "Shortcut Method" in the October and November 2001 issues of the Point of Beginning Magazine. Also See GLO Survey Manuals 1881, 1890, 1894 and 1902. Here we find what is seldom conceded today by BLM Cadastral leaders; the Manuals permitted such alternate schemes as employed
in the "shortcut method". Using the 1890 Manual as an example, see Miscellaneous, Sec. 8, page 33; & Method Of Subdividing, Sec. 8, page 40. The sample Field Notes of 1890 did not provide for notations to be made where the standard subdivision method was departed from.
3 Under the GLO 1894 Survey Manual, if more than 50% of his monuments were stone, which was the case in this township, a US Deputy Surveyor was not required to mark his stones. Instead the marks could be placed upon a 2"x2"x24" stake driven in the southeast pit and the stone buried under the mound of earth. See pages 23-40. (Also 1902 Manual, pages 28-44)
4 This is a prime example of the difference in thought process between Surveyors and Engineers. The surveyor will say that the proportionate point confirms the evidence, and then place the monument at the rock mound. The Engineer will say that the evidence confirms the proportionate point and then place his monument at the MPOL. Never is the latter justified, but it is justifiable to state that "An Engineer does not a Surveyor make."
5 See Clark on Surveying & Boundaries, 7th Edition §12.16, 14.21, 15.01, 15.03; Newfound Managemnt v. Sewer, 855 F.Supp. 727, 747, 748 (U.S. Dist. 1995).
6 BLM’s 2009 Manual of Surveying Instructions, §5-21,22: "One additional caution, addressed especially to surveyors employed by the Bureau of Land Management, is to bear in mind that their professional work is technical in character…" My experience, and repeated by BLM field crews, is that BLM field surveyors are not allowed to make determinations.
7 "No person shall be…deprived of life, liberty, or property, without due process of law." Thanks are due to John Freemeyer of Carver County MN for this vital observation.
A 1.451Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE