A 384Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE
After the Supreme Court of the United States issued its decree regarding the location of the offshore boundary between California and the United States, I articulated numerous problems in a recent article. The American Association for Geodetic Surveying (AAGS), which included representation by NSPS, also weighed in.
The magazine recently published an article by Mr. Evan Page, a colleague and an employee of the California State Lands Commission. I respectfully contend that his comments, although interesting, make no substantive contribution to addressing the problems created by the SCOTUS decree. More succinctly, surveyors set boundaries and courts set precedent, also known also as stare decisis (to stand by a decision). According to one authority:
"In the United States, courts seek to follow precedent whenever possible, seeking to maintain stability and continuity in the law. Devotion to stare decisis is considered a mark of judicial restraint, limiting a judge’s ability to determine the outcome of a case in a way that he or she might choose if it were a matter of first impression; A case which establishes a novel legal principles to a certain set of facts, coming to a certain conclusion, and which is thereafter authoritative, to be followed from that point on, when similar or identical facts are before a court."
Of grave importance is the fact that the subject document is a decree and not an opinion, a distinction that can be confusing. When an opinion is issued, it is typically associated with litigation and in order to amend it, unlike a decree, it must be appealed in a timely manner. According to one authoritative source, a decree is "A judgment of a court that announces the legal consequences of the facts found in a case and orders that the court’s decision be carried out." In this case, the federal government and the State of California asked SCOTUS to ratify the agreement with the court overseeing implementation of the decree. Following the initial litigation which occurred in 1947, the Court entered a decree addressing the entitlement of the United States and the State of California to lands, minerals, and other natural resources underlying the Pacific Ocean offshore of California.
As various organizations and members of the surveying community acknowledge, the December decree is defective and replete with unacceptable errors. Therefore, as with any defective deed, it must be corrected. It cannot be used especially if one has to resort to tortured survey procedures to apply it.
In response to this problem, in April, the American Association for Geodetic Surveying (AAGS) sent a letter to Mr. Doug Vandegraft, the Chief of the Mapping and Boundary Branch with the Bureau of Ocean Energy Management to express AAGS’s concern. Along with representatives from the American Society for Photogrammetry and Remote Sensing (ASPRS), The National Society of Professional Surveyors (NSPS), the Geographic and Land Information Society (GLIS) and the American Society of Civil Engineers, Geomatics Division (ASCE GMD), they jointly expressed concerns with the defective decree stating:
"It is vitally important that any such decree defining a boundary by geodetic coordinates and not physical monuments provides explicit metadata to minimize and ambiguity concerning these positions both now and in the future."
The letter to BOEM identified "two significant issues" concerning the published coordinates, further stating "both of these issues can be easily addressed," explaining that the boundary was based, "in part," on digitized NOAA nautical charts, a stunning acknowledgment of the inadequacy of the methodology. Noting these charts "inherently have a significant amount of positional uncertainty well beyond the level of a few millimeters," AAGS made several recommendations for "this," and future boundary definitions. These include the obvious need to declare and define a sound and proper datum noting that a proper one must be used "since the coordinates change with time." By "adding an accuracy statement" reflecting "the actual accuracy of these points based on the positional integrity of the foundational charts would easily satisfy the spirit, if not the content of the National Standard for Spatial Accuracy Standards (NSSDA." The letter goes on to note that, assuming a chart of 1:40,000, "the corresponding NSSDA positional accuracy should be approximately 23 meters."
The communique opines that "BOEM and any other governmental agency providing geospatial information should ensure the highest degree of integrity for these products and services . . . It is vitally important that such data provide as much information as possible to mitigate any possible misuse or misinterpretation."
In short, the description must adhere to sound surveying rules and the fundamentals of conventional boundary law. To be sure, as a practical matter, the notion of a sea-faring vessel, trying to position itself within 0.001 meters is absurd; that is what makes the document so confounding. The real damage is the legal precedent the decree establishes by the highest court in the land. It is my opinion that if the California State Lands Commission (CSLC) had truly been involved in the preparation of the decree, it would have made sense, an observation supported by the curious CSLC press release when it states:
"The State Lands Commission has been working with the federal government since that time [1953] to locate and fix the offshore boundary. With this recent Supreme Court action, there is now a fixed boundary off the coast of California extending from Mexico to Oregon. Having a fixed boundary will provide certainty to state and federal lessors, regulators, lessees, and operators of federal and state mineral and renewable energy leasing programs, and will prevent future litigation concerning the submerged-lands rights of the parties."
The decree does not provide certainty and it certainly does not appear to be the product of a land surveyor. It appears as if the professional land surveying community has been precluded from participating in the publication of the decree description and no amount of duct tape, baling wire and glue can salvage the decree. It needs to be fixed and not defended.
Michael Pallamary, PS, is the author of several books and numerous articles. He is a frequent lecturer at conferences and seminars and he teaches real property to attorneys and other members of the legal profession. He has been in the surveying profession since 1971.
A 384Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE