Official Surveys in Support of the Acquisition of Land or Interest in Land
9600 (HQ-300) P
The purpose of this Information Bulletin (IB) is to outline existing policies for executing official surveys for pre-acquisition planning for the acquisition of land or interest in land (land acquisition). Cadastral Survey may execute an official survey prior to the acquisition of non-Federal land or interest in land based upon a request, with funding, from an Authorized Officer (AO). A State license for professional land surveying is not required for Bureau of Land Management (BLM) employees to execute official surveys.
For the purposes of this IB an exchange of land or interest in land is a land acquisition.
Survey Authority
It is settled law that the United States may survey what it owns and thereby establish and reestablish boundaries, but what the Government does in this regard is for its own information and cannot impair the bona fide rights of owners on the other side of an existing boundary. The rule is firmly embedded in Federal statutory law pertaining to the resurvey of the original boundaries of the remaining public lands (43 U.S.C. § 772).
The BLM does not have authority to relocate, by means of a survey or resurvey, the boundaries of land once it has passed into non-Federal ownership. Any BLM survey or resurvey conducted for its own information will not affect the location of any such non-Federal boundary.
Since a survey or resurvey executed prior to a land acquisition does not relocate non-Federal land boundaries whether it is conducted by a private sector State licensed land surveyor or a BLM employee, and it has been established that Federal employees conducting congressionally authorized activities cannot be hindered by State regulations requiring State authorization to conduct those activities (see for example Johnson v. Maryland, 254 U.S. 51 (1920)), State regulation of the practice of land surveying does not prevent the BLM from surveying non-Federal parcels prior to Federal acquisition.
Survey Costs related to Acquisition of Land or Interest in Land
For land acquisitions, applicable costs are those linked to the purchase of land, e.g., appraisal, title search, title insurance, and land surveys. The basic rule of law applicable to the issue of the legal authority of an agency’s use of appropriated funds for these costs is found at 31 U.S.C. § 1301(a): “Appropriations shall be applied only to the subjects for which the appropriations were made except as otherwise provided by law.”
Congress has directed that the Secretary, when acquiring land, shall take any necessary steps to assure that the United States will receive acceptable title; therefore, the Secretary can expend funds to cover costs related to the purchase of lands, such as appraisal, title search, title insurance, and land surveys that are necessary to ensure that the land to be acquired can accomplish the purpose of the appropriations intended to fund the acquisition. Under the “necessary expense” doctrine of Federal appropriations law, an appropriation made for a specific objective is available for expenses necessarily incident to accomplishing that objective unless prohibited by law or otherwise provided for. The AO has reasonable discretion to determine how to carry out the objectives for the land acquisition for which appropriations have been enacted.
Commercially available title insurance insures against many defects but not against boundary defects. Department policy on boundary evidence as it pertains to the boundaries of Federal interest assets, including Federal acquisition of land through purchase or exchange appears at Chapter 5 of Part 600 of the Departmental Manual (600 DM 5). Lands subject to acquisition or exchange must be evaluated for risk as described in 600 DM 5. Although Chapter 5 sets forth several ways of evaluating and addressing these risks, the surest way to ensure an acceptable level of risk is a parcel properly described based on a survey executed in accordance with Federal survey laws and standards.
Although the BLM is generally prohibited from expending appropriated funds to make permanent improvements on non-Federal lands (H-2100-1, Acquisition, rel. 2-290) it is generally accepted that a survey is not a permanent improvement to the land.
It is the responsibility of the AO to determine whether to expend appropriated funds to survey the land or interest in land involved in a land acquisition proposal. Except for exceptional conditions, the State Office Chief Cadastral Surveyor will accept that the AO has the authority to expend funds for cadastral survey services.
On Federal and non-Federal lands involved in an acquisition or exchange, for efficiency purposes, the cadastral survey program may complete all required survey work. The BLM may also provide support activities, such as official surveys, to other Federal agencies considering acquisition or exchange proposals under their jurisdiction.
When a survey is requested by an AO, and the decision is made by the State Office Chief Cadastral Surveyor to execute an official survey, it is within the discretion of the State Office Chief Cadastral Surveyor to execute the survey in-house, or by contract in accordance with Federal procurement laws and regulations, including Federal Acquisition Regulations (FAR). It is recommended that all contracted surveys be executed by a Certified Federal Surveyor (CFedS). BLM cadastral survey contracts will include credit for those who have completed the CFedS Training Program and are currently certified (H-9687-1 Appendix 1-1, rel. 9-370).
All such surveys must be to Federal survey standards. Surveys contracted by the BLM shall be reviewed, approved, and accepted by the State Office Chief Cadastral Surveyor for the Director, including appropriate notice and official filing.
Conveyance documents for land to be acquired based on an official survey will not be executed before the official survey has been approved and accepted, notice has been published in the Federal Register, a protest period has been held and has expired, and the survey officially filed.
Other Authorities
The Federal Land Policy and Management Act of 1976, as amended (FLPMA) provides broad authority for the Secretary to conduct surveys: “The Secretary may conduct investigations, studies, and experiments, on his own initiative or in cooperation with others, involving the management, protection, development, acquisition, and conveying of the public lands” 43 U.S.C. § 1737(a)).
In addition, the BLM has special survey and resurvey authority to survey non-Federal lands, e.g., 43 U.S.C. §§ 759-763, 773; however, there is limited application in the context of this IB.
Per the Manual of Surveying Instructions, the Director of the BLM has administrative authority regarding issues relating to the official marking of the boundaries of Federal interest lands, where survey or resurvey is required, and to the extension of official surveys to include parcels of land to be acquired or exchanged.
Background:
Sections 205 and 206 of FLPMA (43 U.S.C. §§ 1715 and 1716) give the BLM the authority to acquire land or interest in land through purchase, donation, or exchange.
Official surveys (cadastral surveys) are executed under the authority of Title 43 U.S.C. §§ 2 and 1457c, for the Director, and subject to the authority of the Secretary of the Interior.
The size and location of a parcel of land is determined by its physical boundaries, and, generally, a written land description identifying the physical boundary is required. A survey seeks to ensure that the written description is free of error, conflict, or ambiguity and can withstand legal challenge.
A survey is not always required for acquisitions; however, it is the AO’s duty to ensure that the BLM’s liability concerning potential boundary errors is minimized by requesting a Land Surveyor Report (LSR) and a Boundary Evidence Certificate of Inspection and Possession (CIP) review per 600 DM 5. The LSR or boundary evidence CIP may identify boundary issues and recommend a survey of a specific parcel, but the AO is responsible for the decision to accept, modify, or reject the risks identified.
If the AO determines that a survey should be completed prior to acquiring the land they will request cadastral services as soon as possible using funding they have the authority to use for such services or arrange for the transfer of non-Federal contributions.
Contact:
If you have questions concerning this IB, please contact Jacob Barowsky, Cadastral Surveyor (HQ-350), at jbarowsky@blm.gov or (505) 250-6180.