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Editor’s note: See PDF for extensive footnotes.
After reading Mike Pallamary’s The Supreme Court Introduces Confusion and Conflict in Boundary Law (March 2015 TAS), feedback over the past few months, and Chuck Karayan’s counterpoint, U.S. Supreme Court Reduces Confusion and Conflict in Boundary Law (June 2015 TAS), I feel the need to weigh in to clarify lingering concerns.
While I appreciate most of Mr. Pallamary’s writings, this one caused undue concern regarding the California Offshore Boundary (OSB). A joint letter from the AAGS, ASPRS, GLIS, the NSPS, and the ASCE Geomatics Division to the U.S. Bureau of Ocean Energy Management (BOEM) warned of dire consequences "on numerous commercial activities." All this in reaction to non-issues.
The concerns relate to determining precise positions or the effect to onshore properties from the description within the Fifth Supplemental Decree, US v. California1. The result of the original case2 was that states lost their claims to any portion of the bed of the Oceans. The Submerged Lands Act (SLA) returned that title to the states and gave definition to the OSB. The Supplemental Decrees (1966 to 2014) gave further clarification.
Before making oceans out of mud puddles, we should consider what the OSB is, how it’s used, the purpose of the Decree, the ambiguities in the description, and whether they pose insurmountable problems.
The Offshore Boundary (OSB) will never be monumented or used as control. It is a boundary between two property owners, not affecting other boundaries. That distinction makes all the difference.
What Is The Off Shore Boundary?
The OSB is the boundary between lands of California and lands of the U.S. in the bed of the Pacific Ocean. It begins, runs entirely, and ends 3 nautical (geographic) miles from the mean lower low water mark3 (MLLWM) where the water is between 100′ and 2000′ deep.
How the OSB is Used
The OSB is used primarily to determine whether oil and other resource extraction sites and related facilities are within Federal or State jurisdiction. Since platforms are typically placed several hundred yards or more from the OSB, a few feet, or even a few dozen feet of uncertainty matters little. The OSB is used to calculate lease areas much as a meander line is used to calculate land areas.
Purpose of the Supreme Court Decree
This latest Decree is not a decision regarding a disputed boundary but a record of the Supreme Court acting in a ministerial capacity to approve a boundary line agreement in accordance with the SLA.4
Prior to this Decree, the OSB followed the movements of the shoreline. In practically all locations, the OSB by coordinates is within the normal ambulatory range of the (former) true boundary. The cost to determine the (formerly) true location of the OSB at a moment in time wouldn’t have been money well spent considering that by the time the crew left the field, the boundary would have already moved, yet would cross the coordinate line several times over a 19-year tidal epoch if not over the course of one year.
Fixing the OSB ends that constant movement at the OSB, giving stability of location and title to leased areas. The certainty provided by somewhat faulty coordinates is far greater than that provided by a moving natural monument over 3 miles distant.
The Circumstances
Both Pallamary and Karayan provide excellent background on the political and legal history of the OSB. The Joint Motion5 further outlines the history and reasoning for fixing the OSB. The coordinates were developed by surveyors of the U.S. Minerals Management Service (MMS) with assistance from surveyors of the California State Lands Commission (CSLC).
The coordinate sets, diagrams, and reports on procedures are available from the BOEM.6 The legal and historical elements of the OSB, and coordinate lists are in a report by the CSLC prepared in 2000.7
The Ambiguities
Any experienced boundary surveyor has encountered ambiguous descriptions. This description appears to have been drafted by a non-surveyor supplied with survey information, but lacking much of the information helpful to surveyors.
When faced with ambiguous descriptions, the courts have repeatedly told us to look for extrinsic evidence to explain the ambiguous terms by looking to the circumstances under which the boundary was established and the description written.
Fixed or Parallel? In the preamble of the description, it’s stated "the Fixed Offshore Boundary… that is Parallel to the Coastline…" How can it be fixed and remain parallel to an ambulatory coast? It can’t.
We don’t need to go beyond the description itself to resolve this discrepancy. On page 110, paragraph 5 states "Pursuant to 43 U.S.C. 1301(b)… the federal-state boundary shall be immobilized at the coordinates provided… and shall not be ambulatory."
Which Datum? Where’s the Meta-Data?
The Decree states in Paragraph 4, Page 110 that the coordinates refer to the UTM system, and that the UTM system is based on NAD83 which is equivalent to WGS84. NAD83 and WGS84 are not equivalent… now. The spheroid of NAD83 (GRS80) and WGS84 are equivalent except for their centroids.8 From the history of the coordinates, we know they were developed as NAD83(86) was first adopted. The centroids of GRS80 and WGS84 were essentially equivalent at that time. After several subsequent adjustments, they are 1.4 meters apart. The datum equivalence statement within the Decree is true for the time the coordinates were derived. The meta data files are located on the BOEM website9.
Which Mile? Mr. Pallamary states that "[m]ore confusion and ambiguity are introduced because the California State Lands Commission still uses the nautical mile… while the federal government and all related agencies use the geographic mile."
The CSLC does refer to the nautical mile, but so do federal agencies. The figure at the bottom of this page was obtained from the BOEM website. This diagram is also used by the NOAA/NOS, USACE, and other federal agencies.
The Supreme Court, in 1966,10 equated the geographic mile with the nautical mile. For purposes of the SLA, they are one and the same, hence no ambiguity.
Significant Figures. Are The Coordinates Really That Accurate?
The coordinates are not accurate to the millimeter. In fact, accuracy to the meter is being optimistic.
So what?! These points are neither fixed monuments nor control from which other work will be established.
Most of us have encountered survey maps with distances to the thousandth of a foot and directions to the tenth of a second. We don’t disregard the map, but use it taking realistic accuracies into account.
Troubling Questions: Coordinates by GIS or by Survey?
The suggestion that the coordinates were carelessly picked off a computer screen by a GIS technician is unfounded speculation easily overcome by publicly available information. Surveyors performed or supervised each step of the process.
Ideally, field surveys would have been conducted from common control to locate the MLLWM along the entire coast. Less than ideally, the baseline points were gleaned from various maps or field notes of other projects and not from a single set of field surveys conducted for this project. Although the maps were based on detailed field surveys, some data integrity is lost piecing records together and accuracy is limited by map scale.
Positional uncertainties due to these factors probably amount to +/- 5 to 10 meters.
Under ideal conditions, field surveys might result in the observed MLLWM having relative positional uncertainties of +/- 0.5′. But we must consider real world conditions.
When locating natural features, like water boundaries, there is subjectivity in choosing shot locations. Portions of the shoreline will be difficult or impossible to observe directly. Indirect observations with the just mentioned subjectivity can contribute several meters of uncertainty.
Seismic activity and subsidence can move control points up to several feet. The changing location of the shoreline due to the tides from season to season, or throughout the course of a complete metonic cycle11 can cover well over 100 feet on a sandy beach.
Once we consider the contributors to positional uncertainty that we cannot control, we see that ideal methods don’t offer much more accuracy than merely adequate methods.
A Fixed Shoreline?
Mike asks "What of the landward properties, those whose boundaries are equally dependent on the location of the California coast line?"
The Decree is a Boundary Line Agreement between the U.S. and California, and no one else. It has no effect on onshore boundaries. A land-bound analogy might help (see figures, next page).
Bert shares a common boundary with Oscar at the thread of a stream. Ernie’s parcel adjoins Bert’s on the East and their common line is described as being 1000′ East of the stream.
Over time, Bert and Ernie place improvements near their boundary, having it surveyed each time. For reasons from stream movement to advances in technology, each surveyed line is different than the previous ones. The last survey shows Bert’s barn and Ernie’s corral encroaching their boundary.
Bert and Ernie aren’t interested in fighting. They just want their boundary to stop moving. They agree to a location, build a fence and file an agreement that the fence marks the boundary.
They haven’t made the boundary between Bert and Oscar dependent upon the fence location. They simply removed the controlling effect of the stream on Bert’s and Ernie’s boundary and replaced it with the fence as the controlling monument. Bert’s and Oscar’s boundary remains the ambulatory stream.
The onshore coastal boundary of California likewise remains unaffected.
Do Monuments Now Yield to Coordinates?
Since the Court weighed no competing evidence, there could be no precedent set regarding the order of evidence. Coordinates still yield to practically all other controlling elements of a description.
Ambiguities Cured by Standard Boundary Rules
When the description is ambiguous, the surveyor is required to use extrinsic evidence to explain ambiguities and reconstruct the boundary the scrivener attempted to describe rather than trying to show the most absurd interpretation the description might lend itself to. The extrinsic evidence needed to cure the ambiguities is publicly available from the Supreme Court website12 and the BOEM website13.
By applying basic boundary law principles, the Decree presents no insurmountable problems to surveyors, to the affected landowners (the federal and state governments), or least of all, to landward property owners. Judging from the dire warnings of his article and much of the reaction to it, Mr. Pallamary has created a good deal of Confusion and Conflict over a non-issue that the vast majority of surveyors will never deal with and no upland coastal landowners will ever be affected by.
Evan Page has worked as a surveyor since 1981 and was first licensed in 1995. His work history is roughly half public sector and half private. He is currently a Boundary Determination Officer (a.k.a. Surveyor) for the California State Lands Commission. Mr. Page speaks on and writes about boundary surveying topics.
A 3.495Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE