United States Department of the Interior OFFICE O F HEARINGS A N D APPEALS

Interior Boar d of Land Appeals 801 N . Quincy St. Suit e 30 0

Arlington, V A 2220 3

703 23 5 375 0 703 23 5 834 9 (fax)

January

2013-70 AZPHX053924

ERIK AND TINA BARNES Patent Correctio n Application

Affirmed

ORDER

Erik and Tina Barnes hav e appeale d fro m a November 22, 2012, decision of the Arizona Stat e Office , Burea u of Land Management (BLM) , rejectin g their application to correct Patent No . 1013470 pursuant t o section 316 of the Federa l Land Policy and Managemen t Ac t of 1976 (FLPMA) , 43 U.S.C. § 1746 (2006) , and its implementing regulations in 43 C.F.R . Subpart 1865 . Th e Barneses seek to correct a patent tha t was issue d t o a homestead under th e Enlarged Homestead Act of Februar y 19 , 1909 , 43 U.S.C. § 218(a) (1970 ) (repeale d 1976) , to add a n adjacen t tract of land. Becaus e we find tha t the Barneses have no t demonstrated b y a preponderance o f the evidence an y error of fact or law in BLM's decision, we affir m the decision.

On June 14 , 1922 , Jake G. Martini submitte d an application to enter 32 0 acres under th e Enlarged Homestead Act , which he described a s th e sec . an d the sec . 22 , T. 16 N. , R . 4 W., Witnes s testimony in support o f his entry and Martini' s final proo f attested t o use, cultivation , an d improvemen t of the land Martini describe d i n his application. Supplementa l Application (Supp . Exhibi t (Ex. ) B. Th e Fina l Homestead Certificat e and Paten t describe d th e same lands Martin i identifie d i n his application. Id., Ex . C. Martin i late r acquired the lands identifie d i n Patent 103573 6 to the south of his homestead an d combined the two parcels int o the Sant a Mari a Ranch. Martin i never challenge d the correctnes s o f the land description in his patent . Erik and Tin a Barnes acquire d the Sant a Maria Ranc h in January 2008 .

Prior to acquiring the ranch , Eri k Barnes submitte d a letter requesting th e correction of the lega l description of lands conveye d by Patent 1013470 , assertin g that the "map used t o acquire th e property in and th e aeria l maps of [U.S.

Background

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Geological are different. " A R Tab 24, Nov. 30, 2007, Lette r to BLM . Barnes a in "the interna l description of the [sic ] of of Sec. 15 . R9W , as pe r #101347 0 an d th e locatio n of the houses section 15. " Id. Apparently , buildings o f the Sant a Mari a Ranch operatio n lie outside th e patented of sec. 1 5 in the nort h half o f that quarter-section. area was conveye d t o the Stat e of Arizona on February 19 , 1937. Wit h the letter , Barne s include d a statement fro m th e Director , Information, Titl e and Transfe r Division , Arizona State Land Department, explaining that the Stat e would b e will in g t o "review the federa l patent adjus t it s records, withi n th e limit s o f the law , to reflect the federa l correction, " provided "i t is legally determined tha t th e issued a n incorrec t patent." Id., Attachment.

In it s April 9 , 2008, response, BL M stated tha t afte r " a detailed investigation," the reques t would b e denied . Id., BL M Response at 1 . BL M explained :

While portrayal on the map migh t lead one t o the conclusio n tha t the house was buil t on property that the origina l entry man fel t wa s his, there i s no way of knowing how the origina l patentee located himself o n the property . Wha t we do know is that the property in question was acquire d by aliquot part descriptions . Th e aliquot parts ar e define d by the monument s o f the origina l survey . Th e original survey of the area was complete d very near the tim e of the patent. Th e plat of survey, th e field notes , an d th e curren t metadat a all indicate that the surve y was performe d faithfully , th e monuments wer e se t accurately , an d ar e regular . Th e house was built afte r th e origina l surve y was performe d an d the monument s set.

The fact tha t the actua l location of the house is not on the land s identified i n the origina l patent , a s the y pertain to section 15 , does not, in and o f itself, indicat e that there wa s erro r in the origina l conveyance document .

Id., BL M Response at 2 . Barne s spok e o f what Martin i mus t have intended t o do, bu t BLM observed tha t "i n reality we really do not know why he di d what he did " and "what we do know now is that the surve y in place befor e th e house wa s constructed." Id. BL M concluded : "Th e fact that Mr . Martini' s house was buil t o n lands no t included in either patent #101347 0 o r in patent #103578 6 doe s not provide reason that the erro r was th e patent. " Id. BL M informed Barnes tha t "th e survey controls the boundaries th e property, " and tha t "wit h th e informatio n . . . provided, th e titl e research of our records, an d th e guidanc e an d regulation s

what constitutes a correction, we conclude tha t there i s no erro r th e survey or patent." Id. 3 . Barne s no t pursue th e issue further a t tha t time.

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By letter dated Novembe r 7 , Eri k and Tin a Barnes, throug h counsel , submitted t o the Arizona State Office , BLM , a request for patent correctio n pursuan t to 43 C.F.R . Subpar t 1865 , alon g with th e S10 0 non-refundabl e fee . Tab 20 ; see 43 C.F.R . § 1865.1-2. Thi s application requested correction "to include the

was originall y settled an d improve d by the entryman , specificall y the N o f the o f Section 15. " a t 1 . I n a January 3, 2012, memorandum t o the Stat e

Director, the Fiel d Manager , Kingma n Office , BLM , expressed his office' s for the request , noting the "opportunit y to correct thi s long standing erro r

that coul d potentially t o resolving other issues on this allotment." H e furthe r observed: "I t is our understanding tha t th e lan d managed b y the Arizona State Land Department (ASLD ) involve d in the correctio n would b e made up t o the ASL D by the Barneses. Therefore , BL M would no t be givin g up an y land and ou r only expense is in th e tim e to correc t th e patent. " A R Tab 18 , Memorandum. Afte r meetin g wi t h BLM to discuss the applicatio n and th e "necessary legal and factua l prerequisites fo r a patent correction, " counsel fo r the Barneses requested additiona l time to supplemen t the request . A R Tab 16 . Becaus e an incorrec t survey purportedly was th e sourc e of the paten t error , th e Stat e Office instructe d Cadastra l Surve y to review the request . AR Tab Mem o at 2 .

On May 29, 2012, th e Barneses submitted supplementa l documentatio n i n support o f their application. The y described Martini' s homestead entry an d subsequent events as follows :

It appears that Martin i move d into a house already o n the lan d wi t h his wife an d fou r children. . . . [ ] Martini improve d the propert y wi th a four bedroom habitabl e house , a barn wit h a blacksmith shop, 3 miles of four-wire fence , an d a wel l wit h a windmill . . . .

. . . When the Barne s bought th e ranch , there were alread y severa l buildings on the dispute d parce l o f property of SVPA, sec . 15] . Moreover, they invested a substantial su m of money in constructing their primary residence directly on the footprin t of an earlie r residence which had bee n destroyed b y fire. I n good fait h an d without knowledg e o f the trespass , the Barne s made several , additional an d substantia l improvement s t o the ranc h headquarter s on public lands .

AR Tab Memorandum a t 1-2 . The y then asserted :

The mos t compellin g reason to believe a n erro r i s made is by looking a t th e lan d itself. . . . Th e land Martin i believe d

The applicatio n letter found in the recor d does not include a date-stamp when i t was by BLM .

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encompassed his homestead went around Wate r Tank Hil l an d down the Wil d Hors e th e Sant a River . Martini occupie d thi s land in good fait h di d not he ha d homesteaded the NV 2 of the o f Section 1 5 a s oppose d t o th e

o f the of 15 . Exhibits A-F.

appears Martin i relie d on a legitimate General Lan d Office (GLO) map date d 1920 . Accordin g to the ol d GLO survey map , Wil d Hors e Wash appears th e SV 2 of the SW A of Section 15 . Th e fence lin e shown paralleling Wild Hors e Wash th e ol d 1920 GL O map i s likewise reflected t o be buil t i n the SV2 of the of Section 1 5 even thoug h thi s was actuall y put up i n the of the of Section 15 . Exhibit E. Th e Williams ' house is located no t far fro m the fenc e lin e of the 192 0 GL O map, whic h would suppor t th e conclusion that Martin i though t h e was homesteadin g accordin g t o the descriptio n of his documents . Exhibit G.

Id. a t 3 . Th e Barneses further argue d tha t "[a ] recent, mor e moder n surve y wi t h modern technology , however , show s tha t Martin i actuall y built hi s homestead in the

of the of Section 15. " Id. I n describing the equitie s involved , the Barneses stated: "Th e requested patent correctio n merely 'shifts ' privat e parcel of land northward . Ther e i s no ne t gai n or loss of real property by the governmen t o r applicant." Id. a t 7 . The y added tha t "[t]her e are n o competin g thir d part y rights." Id. a t 7-8 .

An investigativ e field tri p t o the Sant a Maria Ranch was conducte d o n September 19 , 2012. I n attendance were th e Chie f o f Cadastral Surve y and th e Senior Lan d Law Examiner, Arizona State Office , BLM ; th e Phoeni x Distric t Surveyor , BLM; Counse l wi t h th e Offic e o f the Fiel d Solicitor , Department o f the Interior ; the Applicants and Counsel ; an d th e Distric t Chie f o f Staff fo r Congressman Tren t Frank . AR Tab 5 . Th e purpose of the tri p was t o "get a visual and bette r understandin g o f the claim s the Barnese s are making. " Id. BL M spent approximately 4.5 hour s a t th e ranch identifyin g an d mappin g survey corners , lan d features, an d improvements . Pictures an d descriptiv e comment s o f the fiel d investigatio n are foun d in the administrative record. A R Tabs 8-10. A pictorial repor t o f the visi t begins wi t h a reference t o the 192 0 GP O plat of sec. 15 , noting that th e pla t shows th e locatio n of the William s house, within th e SW A of sec. and th e D.C . Thorn house. AR Tab 8 , a t unpaginate d 2 . Geof f Graham , a BL M surveyor , collecte d data for various points o f topography an d surve y monument s usin g Trimble equipment an d GPS readings . Id. a t unp . 5 . H e also consulted aeria l photographs. Th e repor t concluded th e remain s o f Williams house, and relate d structures , an d th e house are clearl y identifiable. Id. a t unp . 6 . Photograph s sho w a stone building, circ a 1920, a coop, " a "meat house," and th e identifiabl e remains o f the William s house. Id. a t unp . 7-13 . report explain s tha t al l these structures ar e entirely th e Barneses ' private land in the o f sec. 1 5 in the area shown

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the GPO plat as th e Williams house . Th e report includes a withi n th e o f sec. in that area where the Thorn house is depicted on the 192 0

GPO plat. Id. a t unp. 14 . Th e report states that an actua l structure was no t present , but ample evidence o f the buildin g was found . Id. N o other summation of the field visit or rebuttal to the dat a collecte d is found i n the record.

BLM issued it s decision on November 22, 2012, denying the Barneses ' application. Wit h respec t t o the Barneses ' assertion tha t pre-patent fencin g constitutes evidenc e o f the homestead entr y being situated outside the patente d lands, BL M concluded that, the prevalenc e o f fences o f various ages on and near the correction lands," they did not constitute the required "clear showing" of error. Decisio n at 2 . Addressin g the Barneses ' arguments tha t the 192 0 GLO plat depicts certain unsurveyed features inaccuratel y and Martin i o n those inaccurate depiction s to incorrectly describe hi s entry, BLM held that the Barneses provided no evidence t o support such assumptions. BL M determined that "[t]h e

GLO plat actually depicts al l surveyed features remarkabl y accurately." Id. BLM reasoned: "An d even assuming th e Barneses ' contention that certain unsurveyed geographic feature s wer e sketched o n the 192 0 GLO plat slightly inaccurately, the more relevant Williams house , whic h Mr . Martin i apparentl y moved into in 1922 when Mr . Martin i began hi s homestead entry , is located accurately on the 192 0 GLO plat within th e subsequentl y patente d lands. " Id. BL M concluded that the Barneses failed t o show that the land s describe d in Patent 101347 0 are no t the lands Martin i actually intended to enter .

Arguments on Appeal

In thei r statement o f reasons, the Barneses contend tha t the challenged paten t does contain an erroneou s descriptio n and therefor e BLM' s decision is in error. The y assert that there ar e "thre e indisputabl e factors" here: (1 ) a clif f o r ridge of a mesa within th e entered lands , (2 ) the location of the Wil d Hors e Wash within th e entere d lands, an d (3 ) pre-patent fencin g associated wit h th e entered lands . Statemen t o f Reasons (SOR) at 1 . Appellant s argue tha t these three feature s ar e sufficien t t o show the lands describe d i n the patent ar e no t the lands Martin i intende d to enter. The y allege that in ignoring the location of pre-patent fences , BL M is acting contrary to th e common sense notion tha t the entryman would spend tim e and resources to fence land s h e di d not intend to patent. Appellant s aeria l photograph s clearly show the existenc e o f geographical features whic h were part o f the intended

ar e outsid e the patented lands . Claimin g that the Stat e of Arizona does not object, th e Barneses contend the patent correctio n application should be granted .

BLM challenges th e "thre e indisputabl e factors" described by the Barnes , arguing that the applicant s hav e no t shown by preponderance o f the evidence tha t any of those three assumption s ar e valid .

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Discussion

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Section 316 o f FLPMA provides tha t th e Secretar y o f the Interio r "may correc t patents . .. wher e necessar y in order t o eliminate errors." 4 3 U.S.C . § (2006) ; see 4 3 C.F.R . § 1865.0-3; Donald C. & Rebecca B. Routson, 17 9 IBL A 187 , (2010) . BLM, a s th e delegate of the Secretary , i s further afforde d th e discretionar y authority to correc t patents of public land to eliminate mistakes o f fact a s to , inter alia, th e descriptions o f the land s conveye d i n the paten t documents . 4 3 C.F.R . § 1865.0-1; Foust v . Lujan, 94 2 F.2 d 712 , 714-1 7 (10t h Cir. 1991), denied, 50 3 U.S . 984 (1992). Th e exercise o f this discretionary authority is an extraordinar y remedy .

Hancock, 15 0 IBL A 347, 35 0 (1999) . InRoutson, th e Boar d explained th e process for correction:

To justif y th e extraordinar y remedy o f a patent correction , a n applicant first mus t sho w b y a preponderance of evidence tha t th e patent contain s a n erro r o f fact in the descriptio n of the lan d conveyed, th e resul t o f including land the patentee and th e United States had no t intended t o be conveye d and/o r b y excluding land the patentee and th e Unite d States had intende d t o be conveyed : " I f both the Unite d States and [th e original entryman] intende d tha t the lan d on which [th e entryman] buil t be conveye d t o him but were mistake n abou t th e boundarie s o r legal description, this woul d be a correctable mistak e o f fact." Foust v. Lujan, 94 2 F.2 d a t 715 ; see 15 9 IBL A 184 , 19 0 (2003) , and cases cited.

The error tha t i s subject t o correction is defined b y regulation to encompass "the inclusio n of erroneous descriptions" an d "th e omissio n of requisit e descriptions " i n the paten t a t issue "as a result o f factual error." 4 3 C.F.R . § Suc h error s generall y arise eithe r (1) "wher e th e paten t doe s not match th e descriptio n in the application or entry" because of "typographic o r transcription errors appearin g o n [the] patent" ; o r (2 ) "where th e paten t describe s the lan d as describe d in th e applicatio n or entry, but the descriptio n does not match th e lan d entered o r intended t o be entere d o n the ground, " in either case mistakenly including or excluding land. Elmer L . Lowe, 8 0 IBL A 101, 105 (1984) . Error s in patent ar e t o mistakes o f fact and d o no t include mistakes o f law. Suc h showing of error i s the lega l prerequisite t o patent correction : "Befor e [BLM's ] discretio n can b e exercised i t must clearl y appear that a n erro r was, i n fact, made . Otherwise, a n applicatio n to [correct ] would b e barred a s a matte r of law." Williams, 5 7 IBL A [8,]1 2 [(1981)] .

179 IBL A at 193-9 4 (footnot e omitted) .

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We agre e BLM' s conclusion, set fort h below , that suc h a clear of factual erro r is lacking in this case:

. . . The evidenc e i n this case may be summe d u p a s follows . Th e United State s patented certai n public land to Jake G. Martini , pursuant t o the Enlarge d Homestea d Ac t in 1928. Th e onl y undisputed evidenc e o f Mr. Martini' s entry , the house he move d into in i s located o n the patente d land . Whethe r Mr . Martini constructed an y o f the fencin g on the correctio n land is unknown. Whether Mr . Martin i use d th e 192 0 GL O survey to describe hi s also i s unknown. I n any case, the 192 0 GL O survey actually depict s unsurveyed topographi c features accurately . Take n together , these circumstances d o not even hin t a t correctable mutua l mistake o f fact.

BLM Answe r at 7 . Appellant s have not provided any evidence tha t "[t]h e land tha t Martini believed encompassed his homestead wen t around Wate r Tank Hil l an d down the Wil d Hors e Wash an d th e Sant a Maria River. " A R Tab 14 , Memorandum at 3 . The Barneses state that t o the ol d GLO survey map, Wil d Hors e Wash in the old GLO map i s in the SVz of the of Section 15. " Id. However , as BL M noted, th e 192 0 GLO plat clearly shows th e Wil d Hors e Wash to be situate d i n the

parcel, a fact that would no t have confused a n entryma n familia r wi t h th e land s he ha s improved . Th e Barneses indicate that "[t]h e fenc e lin e shown paralleling Wild Horse Wash in the ol d 1920 GL O map i s likewise reflected to be buil t i n the SVz of the

of Section even thoug h this was actuall y put up in the NV 2 o f the of Section 15. " Id. BL M respond s that there ar e man y fences in the area of various ages and i t is only speculation tha t one o f the fences in the norther n parcel could be tha t particular fence-and ver y unlikely, considering the fence wa s locate d near th e Williams house. Th e Barneses further contend tha t "the GL O map erroneousl y locates th e unchanged geologica l features, th e 'Williams ' house and th e barb wir e fence." Id. a t 6 . BLM' s finding tha t the 192 0 GLO plat faithfully depict s topographi c features i n sec. undermines th e Barneses ' hypothesis tha t Martini' s reliance o n th e plat to describe hi s entry led to an incorrec t description. BL M als o noted tha t th e location of Water Tank Hil l i s also unchange d fro m th e pla t to the results.

known o f the William s house and attendan t building s is the principal weakness in Barneses' application for patent correction . BL M foun d these buildings to be locate d today in the exac t area o n the 192 0 GLO plat. There i s no avoidin g the fac t that Martini , relyin g on the ver y observable the Williams house on plat, would hav e known whether h e o n th e lands h e patented . Th e record states that occupied a house to further hi s entry. I f this was no t the William s house, then would hav e known he was no t in the SVz. i t was th e Williams house, then hi s entry and paten t fo r the SVz was confirme d by the

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plat. Neithe r Martini no r his successors, until the Barneses , ever challenged or questioned th e correctnes s o f the description of his patented lands .

The ultimate burden o f justifying th e exercis e o f BLM's discretionary authority to correc t a patent fo r a mistake of fact falls o n the party seeking the correction , who must demonstrate , firs t foremost , tha t an erro r clearly was made . Gordman Leverich L.L.P., 17 7 IBL A 52, 60 (2009) ; Ramona Lawson, 15 9 IBL A at 190 ; George Snow Judicial Remand), 79 IBL A 261, 26 4 (1984) . Th e evidence befor e u s

preponderates o n there no mistake o f fact that must be correcte d pursuant t o FLPMA. Thus , BL M properly denied the application to correct Patent 101347 0 an d the Barneses have no t shown on appeal tha t the decisio n was in error .

Therefore, pursuan t t o the authorit y delegated t o the Board of Land Appeals by the Secretar y o f the Interior , 4 3 C.F.R . § 4.1, th e decisio n appealed fro m i s affirmed.

I concur :

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