PUEBLO OF SAN FELIPE

190 IBLA 17 Decided April 5, 2017

United States Department of the Interior Office of Hearings and Appeals

Interior Board of Land Appeals 801 N. Quincy Suite 300

Arlington, VA 22203

703-235-8349 (fax)

PUEBLO OF SAN FELIPE

2014-256 Decided April 5,2017

Appeal from a decision of the State Director, New Mexico State Office, Bureau of Land Management, dismissing a protest to the proposed official filing of a plat of corrective dependent resurvey. Group No. 1154, New Mexico.

Affirmed.

1. Administrative Authority; Board of Land Appeals; Solicitor, Department of the Interior; Surveys of Public Lands: Challenges; Surveys of Public Lands: Dependent Resurveys

An M-Opinion of the Solicitor is binding on the Board. Where an determines that it is necessary for the Department to undertake a corrective dependent resurvey of the common boundary between the landholdings of two Pueblo Indian groups and that BLM has the authority to perform such resurvey, the Board wi l l not revisit those determinations. Moreover, where a BLM resurvey did not determine the issue of title to disputed overlapping land claimed by both Pueblo Indian groups, the Board wil l not adjudicate this matter on appeal from a decision denying a protest of the official filing of the corrective dependent resurvey.

2. Surveys of Public Lands: Challenges; Surveys of Public Lands: Dependent Resurveys

BLM properly dismisses a protest to a corrective dependent resurvey of the common boundary between confirmed and patented Pueblo Indian landholdings that predate the Treaty of Guadalupe Hidalgo, where the protestant fails to establish, by a preponderance of the evidence, that BLM failed

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to conform to the guidance in the 2009 Survey Manual, or otherwise to accurately retrace and reestablish the lines and corners of the original survey of that boundary.

APPEARANCES: Timothy J. Humphrey, Sr., Esq., and James M. Burson, Esq., Albuquerque, New Mexico, for the Pueblo of San Felipe; Richard W. Hughes, Esq., Santa Fe, New Mexico, for the Pueblo of Santa Ana; Elizabeth R. Carls, Esq., Office of the Solicitor, U.S. Department of the Interior, Washington, D.C., for the Bureau of Land Management.

OPINION BY ADMINISTRATIVE JUDGE KALAVRITINOS

The Pueblo of San Felipe (PSF or San Felipe) has appealed from an August 1, 2014, decision of the State Director, New Mexico State Office, Bureau of Land Management (BLM), dismissing its protest to the proposed official filing of a plat of a corrective dependent resurvey that, inter alia, reestablishes the common boundary of the San Felipe Pueblo Grant and the Ranchito Tract. By Order dated September 24, 2014, we granted a motion by the Pueblo of Santa Ana (PSA or Santa Ana), which claims the lands in the Ranchito Tract, to intervene in the pending appeal, on behalf of BLM. PSF and PSA are both Federally-recognized Pueblo Indians of New Mexico, and their respective landholdings are considered to be "held in restricted fee in which the United States has a discernible interest, i.e., restriction on alienation."1

By Order dated October 27, 2014, we denied PSF's petition to stay the effect of the State Director's August 2014 decision, and the matter is now ripe for disposition on its merits.

SUMMARY2

In a June 7, 2013, Memorandum Opinion (M-37027), which is binding on the Board, the Solicitor, U.S. Department of the Interior, concluded that BLM is authorized and required to undertake a corrective dependent resurvey of the common boundary between the landholdings of the San Felipe Pueblo Grant to the north and the Ranchito Tract to the south. BLM undertook the corrective dependent resurvey, attempting to place the boundary in its true original position, i.e., where it has always been, thus affording PSF and

Solicitor's Opinion (Sol. Op.), M-37027, " Boundary Dispute: Pueblo of Santa Ana Petition for Correction the Survey the South Boundary the Pueblo San Felipe Grant," dated June 7, 2013 (2013 Sol. Op.), at 14 (citing United States v. 271 U.S. 432, 443 (1926) ("The Indians of the pueblo are wards of the United States and hold their lands subject to the restriction that the same cannot be alienated in any-wise without its consent.")).

See generally id. at 3-11 for a detailed factual and procedural history of the boundary dispute.

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PSA the full extent of their confirmed and patented landholdings. In the resurvey, BLM determined that the common boundary properly coincides with PSA's northern boundary, as originally surveyed in 1900, rather than PSF's southern boundary, as originally surveyed in 1860. BLM did not determine whether PSF or PSA holds title to the disputed, overlapping area of land, delineated by competing surveys of the common boundary.

BLM proposed the official filing of the 2013 corrective dependent resurvey plat, which PSF protested. In an August decision, the State Director denied PSF's protest, and PSF now appeals that decision.

In challenging the State Director's denial of its protest, PSF bears the burden on appeal to show error of fact or law in BLM's resurvey to reestablish the common boundary between the two Pueblo Indian groups. PSF must demonstrate, by a preponderance of the evidence, that the BLM surveyors failed to adhere to the surveying requirements of the 2009 Survey Manual, or otherwise failed to accurately retrace and reestablish the lines of the original survey of the common boundary. The only question before the Board, therefore, concerns whether BLM properly performed the resurvey.

However, PSF principally focuses on two issues not on appeal in this case: whether BLM has the authority to undertake the resurvey, an issue already decided with finality by the Solicitor, on behalf of the Department, and whether PSF or PSA holds title to the disputed lands affected by the resurvey, an issue which the State Director and BLM, in the underlying corrective dependent resurvey, did not adjudicate. PSF has not demonstrated, by a preponderance of the evidence, any error in BLM's resurvey, and, therefore, we will affirm the State Director's August 2014 decision, denying PSF's protest to the proposed official filing of the 2013 corrective dependent resurvey plat.

BACKGROUND

Confirmation and Patent of Landholdings of Adjoining Pueblos, Original Surveys and Resurveys, and Resulting Controversy

As the Solicitor noted, the United States took possession of New Mexico in 1848, the boundary of the San Felipe Pueblo Grant has been the subject of survey, examination, and resurvey."3 At issue here is the westernmost location of the southern boundary of the San Felipe Pueblo Grant to the extent it separates the southwestern corner of PSF's San Felipe Pueblo Grant from the northeastern corner of PSA's Ranchito Tract. That boundary is situated in T. 13 N., R. 4 E., New Mexico Principal Meridian, Sandoval

Id. at 6 (referring to the Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, art. VIII, Feb. 9 Stat. 922 (Treaty of Guadalupe Hidalgo)).

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County, New Mexico, on the east side of the Rio Grande River (formerly, Rio del Norte), which runs southwesterly through the entire San Felipe Pueblo Grant.

When the General Land Office (GLO) originally surveyed the San Felipe Pueblo Grant in 1860 (by Rueben E. Clements) and again in 1900 (by Thomas Hurlburt),4 the southern boundary of the San Felipe Pueblo Grant was reported to run, on a bearing of N. 87° W., from the SE corner of the San Felipe Pueblo Grant west towards the Rio Grande River, for approximately 5 miles, before it intersected the NE corner of the Ranchito Tract, which the GLO had originally surveyed in 1900 (by John H. Walker).5 The southern boundary of the San Felipe Pueblo Grant, according to the survey, coincided with the northern boundary of the Ranchito Tract for approximately 2 miles, before reaching the SW corner of the San Felipe Pueblo Grant, which was situated on the east bank of the Rio Grande River.6

Following GLO approval of the original surveys, the United States issued patents on November (San Felipe), and October Ranchito).7 Such patents had the effect of fixing the rights of the Pueblos, vis-a-vis the United States,8 even if the boundaries were surveyed in error, since the original surveys could not be challenged in the Department.9

See id. at 7. Id. at 6-7. at 7. See id. at 7, 9.

See, e.g., Adam v. Norris, 103 U.S. 591, 593 (1880) ("When,... guided by the action of the tribunals established to pass upon the validity of these alleged [Mexican] grants, the government issued a patent, it was in the nature of a quitclaim, - an admission that the rightful ownership had never been in the United States, but had passed at the time of the cession to the . . . Such a patent was, therefore, conclusive evidence only as between the United States and the grantee that the latter had established the validity of the

(Emphasis added)); Catron v. 72 P. 26, 29-32, 32 the fee is not vested in the United States, the confirmatory act is the fulfillment of the treaty obligation of the government and an authoritative recognition by record of the ancient possessions and title of the confirmees and gives to them such assurance of the validity of that possession and title as would always be respected by the courts of the country.") (N.M. 1903).

See, e.g., United States v. State Investment Co., 264 U.S. 206, 212 (1924) ("[WJhen [the Department] has once made and approved a governmental survey of public lands, and has disposed of them, the courts may protect the private rights acquired against interference by corrective surveys subsequently made by the Department."); Pueblo Santa Ana v. Baca, 844 F.2d 708, 710 (10th Cir. 1988); United States v. 504 F.2d (10th Cir. 1974) patent has issued, the rights of patentees are fixed and the

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Soon after Clements' survey, questions about the location of the southeast corner of the San Felipe Grant surfaced with new surveys of public domain lands and private land claims along the eastern and southern boundaries.10 The GLO retained Hurlburt to conduct an examination of surveys of the San Felipe Grant, but when he "proceeded to the southwest corner of the Grant as established by from what he assumed to be Clements' southeast corner, Hurlburt found the southwest corner did not agree with the topography described in Clements' field notes."11

In 1907, GLO contracted for a resurvey of the San Felipe Grant by Wendell V. Hall, who it instructed to reestablish the southeastern corner by following Clements' courses and distances, contained in the confirmation patent, which was derived from the Clements survey. Hall was not instructed to follow the few calls to natural topographical monuments contained in Clements' notes.12

Hall's 1909 dependent resurvey of the San Felipe Pueblo Grant reestablished the southern boundary approximately one-half mile to the south, thus overlapping the northeastern corner of the Ranchito Tract, to the extent it is situated east of the Rio Grande River.13

The disputed overlapping lands are distinguished by substantial agricultural land, valuable sand and gravel resources, and the right-of-way for an interstate highway. Compensation attributable to the right-of-way over the disputed area has been held in escrow pending resolution of the conflicting claims to the lands.

In addition to the Clements and Walker surveys of the San Felipe Pueblo Grant and the Ranchito Tract, Robert G. U.S. Deputy Surveyor, originally surveyed the boundaries of the Angostura Grant in 1879. The Angostura Grant straddles the Rio Grande

government has no power to interfere with these rights, as by a corrective resurvey. . . . [T]he government is bound by the last official survey accepted prior to its divestment of title. . . . It is well settled that the notes, lines and descriptions in an accepted survey are considered a part of the Patent."); United States v. Doyle, 468 F.2d 633, 636 (10th Cir. 1972) ("The original survey as it was actually run on the ground controls. . . . It does not matter that the boundary was incorrect as originally established."); Lorna L. Boykin, 130 IBLA 301, 306 (1994) ("It is well established that a patentee takes title to the land described in his patent, as then surveyed on the ground, since the patent incorporates the lines of the survey.").

2013 Sol. Op. 7. Id. Id. at 8. Id.

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River in the southwestern corner of the San Felipe Pueblo Grant, and was found by Walker to encompass a total of 1,579.48 acres. The field notes of the survey were approved on April Walker later reestablished the boundaries of the Angostura Grant in 1898, and the field notes of his resurvey were approved on December Walker noted on his Plat of the Angostura Grant that the southern boundary of the Angostura Grant was the north boundary of PSA's Ranchito Tract. Walker identified the of hill called Canjilon" at his 3 mile corner on the western boundary of the Ranchito Tract, 52.15 chains, on a bearing of S. 30° 40' E., from the NW corner of the Tract.14

In 1916, Francis E. Joy, U.S. Surveyor, and Basil C. Perkins, U.S. resurveyed the northern boundary of the Ranchito Tract, noting, once they reached the west bank of the Rio Grande River, after proceeding east from the NW corner, that the

edge of rim on Conjilon Peak bears S. 66° W. about 3/4 Mi[les][] dist[ant]."15

Thus, both Walker and Joy/Perkins located the Canjilon Hill approximately 60 chains southeasterly of the NW corner of the Ranchito Tract, on the western side of the Rio Grande River. Further, they both indicated that the southern boundary of the San Felipe Pueblo Grant now advanced by PSF does not align with the Canjilon Hill, contrary to PSF's assertion that, under its original Spanish land grant, the southern boundary aligned with the Hill.

In 1989, PSA filed a petition with the Secretary of the Interior to correct the 1909 GLO resurvey of the south boundary of the San Felipe Pueblo Grant to the extent the boundary overlaps with a tract of land owned by PSA.16

The Solicitor issued the 2013 Solicitor's Opinion, which found that Hall's 1909 dependent resurvey reestablished the SE corner, along the southern boundary of the San Felipe Pueblo Grant, resulting in the conflict that persists to this day, because this created a one-half mile overlap wi th Santa Ana's previously surveyed Ranchito Tract, placing approximately 695 acres of the Ranchito Tract inside the San Felipe Pueblo Grant.17

The Solicitor concluded that the Pueblo of Santa Ana appeared to hold the better claim of title to the disputed overlapping lands determined to be included in both PSF's San Felipe Pueblo Grant, to the north, as denoted by the 1909 dependent resurvey of the original 1860 survey, and PSA's Ranchito Tract, to the south, as denoted by the original

1900 Walker Field Notes at 14. Field Notes of the Resurvey of the Boundaries of Ranchito Grant (Santa Ana Pueblo)

and Portion of North and All of East Boundaries of Angostura Grant, Joy/Perkins, dated May (1920 Joy/Perkins Field Notes Ranchito)), at 25.

Sol. Op. Id. at 8; see id. at 9.

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1900 survey.18 "The time has come," she said, "to bring resolution to this longstanding boundary dispute."19

[T]he boundaries of the lands patented to the respective Pueblos conflict,... a resurvey of the disputed boundary is necessary, the boundary between Santa Ana's Ranchito Tract and San Felipe's lies north of the southern boundary line of the [PSF] patent. Therefore, the BLM, in coordination with the [Bureau of Indian Affairs], needs to address this overlap and undertake a resurvey of the disputed boundary based on this

The hope was that a corrective resurvey would result in a common boundary for PSF's San Felipe Pueblo Grant and PSA's Ranchito Tract, as had originally been intended when the landholdings were created, prior to the Treaty of Guadalupe Hidalgo, and confirmed and patented by the United States, thereafter. The only issue for adjudication by the Board concerns the accuracy of that resurvey.

BLM undertook the corrective dependent resurvey following issuance of the Solicitor's 2013

BLM's 2013 Dependent Resurvey

BLM undertook the 2013 dependent resurvey to clearly identify the common boundary between PSF's San Felipe Pueblo Grant and PSA's Ranchito

William F. BLM Cadastral Surveyor, retraced the common boundary based on existing evidence of its location, making a diligent search for all corners and other calls of record or evidence in Clements' 1860 and Walker's 1900 surveys, and then reestablishing the including all lost corners by proportionate measurement. He completed the corrective dependent resurvey on October 24, 2013. In undertaking the resurvey, Olver

See id. at ("[W]e that resolution of the resulting overlap would favor Santa Ana."), 11-12.

Id. at 15. Id. Special Instructions, Group No. 1154, New Mexico, dated July 15, 2013, at

unpaginated 2 ("The work to be executed under these Special Instructions is limited to Retracement and Dependent Resurvey of portions of the north and east boundaries of the

Ranchito [] [and] portions of the south and west boundaries of the San Felipe Grant").

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was guided by the Manual of Surveying Instructions for the Survey of the Public Lands of the United States, BLM Cadastral Survey (2009) (2009 Survey Manual).22

Prior to Olver's 2013 resurvey, Paul J. Hickey, BLM Indian Lands Surveyor, at request, sought to determine whether Clements' SE corner could be recovered. He did not find any original evidence of the corner, or of the mounds of stones that Hurlburt in 1900 had believed to be associated with that corner, and concluded that there did not exist sufficient proof to overturn Hall's 1909 of the corner, which had been accepted by adjoining landowners for over 100 years.23 While he found what appeared to be Hurlburt's reported mound of stones, which was tied, by close to Clements' 1860 record bearing and distance, to an old channel of San Francisco Creek and a spring to the north, he stated that he did "not believe that I have discovered any conclusive evidence that can be accepted as sufficient proof to overturn Hall's 1909 reestablished position of the southeast corner of the [San Felipe Pueblo Grant]," as it had been continually recognized by adjoining landowners "for over 100 years," especially since Clements had failed to report how the corner was physically marked in

Importantly, however, Olver did not affect the location of the first five miles of the southern boundary of the San Felipe Pueblo Grant, as it proceeded west from its SE corner, as reestablished by Hall in 1909. Rather, he only altered the location of the southern boundary to the extent it coincided with the northern boundary of the Ranchito Tract, thus creating a common boundary for the two Pueblos. Pursuant to the directive in the 2013 Solicitor's Opinion, Olver placed the southern boundary of the San Felipe Pueblo Grant ("New South Boundary of the San Felipe Pueblo Grant") approximately one-half mile north of the southern boundary reestablished by Hall in 1909 ("Wendell V. Hall's South Boundary of San Felipe Pueblo Grant").25 The result was to create a jog, to the north, in the

See 25 § 176 ("Whenever it becomes necessary to survey any Indian or other reservations, or any lands, the same shall be surveyed under the direction and control of the General Land-Office [currently, BLM], and as nearly as may be in conformity to the rules and regulations under which other public lands are surveyed' (Emphasis added)); 2013 Sol. Op. at 2 n.5; Charles Vetsch, 180 IBLA 82, 86 (2010); Original Field Notes of 2013 Dependent Resurvey, Olver, dated Jan. 29, 2014 (2013 Olver Field Notes), at 3. The 2009 Survey Manual is available at

www.blm.gov/wo/st/en/prog/more/cadastralsurvey/2009_edition.html (last visited Mar. 29,2017).

See Report on the Search for Evidence of the 1859 Southeast Corner of the San Felipe Pueblo Grant, dated July 3, 2012 (2012 Hickey Search Report), at 3-5.

Id. at 5 (emphasis added). See 2013 Olver Field Notes at 4 ("As directed by the 'M' opinion issued June 7, 2013, the

following portion the north boundary of the Pueblo of Santa Ana's Ranchito [Tract] is

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line of the southern boundary, thus deviating from the straight line established by Clements in 1860. Thus, when the southern boundary reaches the eastern boundary of the

Ranchito Tract, it turns northeast, running a total of 51.65 chains, generally northeast, to the NE corner of the Ranchito Tract.26 From there, it turns west, running a total of 160.31 chains, generally west, to the westernmost point of the southern boundary of the San Felipe Pueblo Grant, intersecting the common boundary between the Angostura Grant and the Ranchito Tract, and then to the Rio Grande River. The effect was to move the southern boundary of the San Felipe Pueblo Grant north of Hall's location of the southern boundary, such that it coincides with the northern boundary of the Ranchito Tract.

We note that Olver found no remaining evidence of Clements' original 1860 survey of the southern boundary of the San Felipe Pueblo Grant, as well as no remaining evidence of Walker's original 1900 survey of the northern boundary of the Ranchito Tract, to the extent that the northern boundary separated the Tract from the Angostura and San Felipe Pueblo Grants. Rather, he generally accepted monuments that had been set at the angle points on the boundary in 2 0 0 9.27 However, once east of the SE corner of the Angostura Grant, Olver recovered monuments used by Joy/Perkins, who began their resurvey of the northern boundary of the Ranchito Tract in 1916, to perpetuate Walker's original 1900 survey of the northern boundary of the Ranchito Tract in the case of the 2 Mile corner ("[I]ron post, 3 ins. firmly set, projecting 1 in. above ground, with brass cap mkd. 2M ERG 1916, witnessed by an embedded mound of stone, 3 ft. diam., WSW, 5 dist."), the 3 Mile corner ("[IJron post, 3 ins. diam., firmly set, projecting 5 ins. above ground, in a scattered mound of stone, with brass cap mkd. ERG 3M 1916. Lying loose nearby is a limestone, 13 x 10 x 6 ins., mkd. ER 3M on a face, so the iron post is accepted as the best available evidence of the position of the original cor."), and the NE corner post, 3 ins. diam., firmly set, projecting 19 ins. above ground, with brass cap mkd. NE BEG COR ERG 1916. There is no remaining evidence of the original stone or a mound of stone, so the iron post is accepted as the best available evidence of the position of the original cor.").28 We note that the limestone found near the 3 Mile corner closely matched Walker's 13x7x6-inch limestone, which had been marked "ER 3M." 2 9 In addition, the Joy/Perkins monuments for

now identical with the south boundary the San Felipe Pueblo Grant. Wendell V. Hall's south . . . of the San Felipe Pueblo Grant within the Ranchito [Tract] [is] no longer recognized as the actual of the San Felipe Pueblo." (Emphasis added)).

at See id. 4-10. Id. at 1900 Walker Field Notes at 18.

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the 2 Mile, 3 Mile, and NE corners matched those reported in Joy/Perkins' 1920 field notes.30 Olver remonumented the three corners.

By no longer recognizing Hall's 1909 boundary as the common boundary between the two Pueblos, Olver removed the longstanding overlap between the San Felipe Pueblo Grant and the Ranchito Tract. Olver denoted the new common boundary on the ground by removing all of Hall's 1909 monuments, which were deemed to have inaccurately denoted that boundary, and by setting new monuments to reflect the new common boundary between the two Otherwise, Olver left the southern boundary reestablished by Hall in 1909 in its original position.

In effect, Olver restored the southern boundary of the San Felipe Pueblo Grant to the position it had occupied at the time it was originally surveyed by in 1860, at least to the extent that it formed the common boundary between the San Felipe Pueblo Grant and the Ranchito Tract near its western end, and otherwise left the southern boundary where Hall had placed i t during his resurvey in 1909, even though it differed from its original location at the time of Clements' 1860 survey.

The Chief Cadastral Surveyor for New Mexico, BLM, approved the corrective resurvey field notes on January 31, 2014.

BLM published a Notice of Filing of Plat of Survey, New Mexico, in the Federal Register on February 2014,32 notifying the public that it would be officially filing, 30 calendar days from the date of publication, a plat representing BLM's acceptance of the resurvey, under Group No. 1154, New Mexico, of, inter alia, portions of the southern boundary of the San Felipe Pueblo Grant and the northern boundary of the Ranchito Tract, situated in T. 13 N., R. 4 E., New Mexico Principal Meridian, Sandoval County, New Mexico. It afforded the public an opportunity, prior to the official filing, to file any protests to the proposed filing, pursuant to 43 C.F.R. § 4.450-2. BLM also stated: "A plat wil l not be officially filed until the day after all protests have been dismissed and become final or appeals from the dismissal affirmed."33

See 1920 Joy/Perkins Field Notes Ranchito) at 4 ("[IJron post 3 ft. long, 3 ins. in diam. 26 ins. in the ground [with brass cap marked NE COR ERG (NE)), 30 ("[IJron post 3 ft. long, 3 ins. in diam., 24 ins[.] in the ground [with brass cap marked 2M ERG 1916]" (2 Mile)), and 31 ("[IJron post 3 ft. long, 3 ins. in diam., 24 ins. in the ground [with brass cap marked 3M ERG 1916]" (3 Mile)).

See 2013 Olver Field Notes at 4-15. 79 Fed. Reg. 8205 (Feb. 11, 2014). Id.

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PSF filed a timely protest to BLM's proposed official filing of the survey plat.

In his August 2014 decision, the State Director dismissed PSF's protest, concluding that PSF's challenges "to the authority of the Secretary[,]... acting through [BLM,] to conduct a resurvey of the boundaries of Indian lands such as those at issue here[] [and] . . . to the legal reasoning of the regarding the respective claims of the Pueblo of Santa Ana and the Pueblo of San Felipe to the area of overlap" had already been resolved in the two Solicitor's Opinions, which were binding on BLM.3 4 After dismissing the protest, he further pronounced: "The survey stands and be filed when all protests and appeals have been decided."35

PSF's Appeal from the State Director's August 2014 Decision

PSF timely appealed from the State Director's August decision, requesting a stay of the effect of the decision, thus staying the official filing of the survey plat, during the pendency of its appeal. In our October 2014 Order, we denied PSF's stay petition as moot, since BLM had already agreed in the February 2014 Federal Register notice and August 2014 decision to stay the official filing of the plat until the Board resolved PSF's protest/appeal.

PSF objects to BLM's pursuant to Olver's 2013 corrective dependent resurvey, of the southern boundary of the San Felipe Pueblo Grant, as originally established by Clements in his survey, which was incorporated in the 1864 patent, north of the position reestablished in Hall's 1909 dependent resurvey.36 thus asks the Board to "order the BLM to honor the prohibitions against the resurveying of [PSF's] patented lands, refrain from filing the [resurvey] plat discussed in the Notice[,] . . . and reinstall the monuments that were removed from the southern and western boundaries of the San Felipe [Pueblo] land grant."37 It adds that BLM must specifically "allow [] Hall 1909 to stand as the proper survey describing the southern boundary of the San Felipe [Pueblo] Grant," or, in the alternative, remand the case to BLM for a resurvey "accurately the common boundary between San Felipe and Ranchito in accordance with conveyancing instruments and court decisions."38

Decision at 2. Id. at 3. See Petition for Stay (Petition) at 4 ("There has been neither an additional order from a

court of competent jurisdiction, nor act of Congress, specifically authorizing obliteration of the entire southern boundary of the Pueblo's restricted fee land or reservation, nor realigning the boundary over mile north of Hall's 1909 line, which line definitively reestablished the [F]ederally-established southern boundary for the Pueblo in accordance with [F]ederal law").

Consolidated Reply at 18.

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We turn now to the merits of the underlying appeal.

DISCUSSION

The Board will A Neither BLM's A uthority to Perform the Corrective Resurvey nor Title to the Disputed Lands

PSF contends that, in approving Olver's 2013 corrective resurvey, BLM sought not only to change Hall's 1909 resurveyed southern boundary for the San Felipe Pueblo Grant, but also to vest title in PSA, as part of the Ranchito Tract, thus impairing PSF's bona fide rights.39 PSF argues that BLM was not justified in correctively resurveying Hall's 1909 resurveyed boundary, which reestablished the original boundary delineated by Clements' 1860 survey, since this has the effect the boundaries of the Pueblo's original U.S. Survey," which were incorporated in the confirmed and patented Grant, thus violating Federal law that holds that the boundaries of the patented lands are unchangeable.40

PSF states that, by disregarding Hall's 1909 resurvey of the southern boundary, BLM has impaired PSF's bona fide rights under its 1858 Congressional confirmation and 1864 U.S. patent, in violation of 43 § 772 (2012), Federal and Board precedent, and the 2009 Survey Manual.41 PSF concludes that, in the absence of an order or decision of a court of competent jurisdiction or an act of Congress, BLM was not authorized "[to] . the entire southern boundary of the Pueblo's restricted fee land or reservation, nor [to] realign[] the boundary over one-half... mile north of Hall's 1909 l ine[.]"4 2 PSF challenges what it contends is "a change to San Felipe's congressionally-confirmed boundary," in violation of "fundamental principles of [F]ederal law" because the resurvey

SOR at 5; see, e.g., Petition at 21-22, 25-27; Supplemental (Supp.) SOR at 2, Reply to BLM Response at 17-20.

Petition at 2 (citing, e.g., United States v. State Investment Co., 264 U.S. at 212 ("A resurvey by the United States after the issuance of a patent does not affect the rights of the patentee; the Government, after conveyance of the lands, having 'no jurisdiction to intermeddle with them in the form of a second (quoting Kean v. Calumet Canal and Co., 190 U.S. 452, 461 (1903)))); SOR at 2, 5-6, 22 ("Upon approval by the [GLO] in March 1909, the Hall resurvey definitively reestablished San Felipe's boundaries where they have been recognized by the U.S. for over 100 years, resolving all uncertainty as to the true location of San Felipe's southern boundary under [F]ederal law").

Supp. SOR at 9-10 (citing Charles Vetsch, 180 IBLA at 88 ("[Appellant meets burden of showing error in resurvey] by showing, inter alia, that the resurvey was not executed in conformity with the Survey Manual')).

Petition at 4.

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"impairs San Felipe's patent rights."43 PSF thus expressly eschews any arguments regarding BLM's "technical conformance" with the BLM Survey Manual.44

PSF argues that Hall's 1909 resurvey correctly determined the common boundary between the two Pueblo landholdings, which were confirmed by Congress and the Court of Private Land Claims (CPLC) in 1858 and 1897 and embodied in the 1864 and 1909 U.S. patents, and which has remained in existence since that time.45 Thus, PSF concludes, the Solicitor's 2013 Opinion mistakenly held that there existed an overlap between the two Pueblo landholdings, requiring Rather, according to PSF, all that need now occur is for BLM to determine the location of the common boundary reestablished by Hall, not for BLM to correctively resurvey that boundary.

[1] In sum, PSF asserts title to the disputed lands, on the basis of bona fide rights to the lands, on the basis of Congressional confirmation of the San Felipe Pueblo Grant in 1858 and the CPLC's 1897 confirmation of the Ranchito Tract and the subsequent issuance of patents by the United States in 1864 and 1909. It challenges BLM's authority to undertake the corrective dependent resurvey.

However, it is well settled that the Solicitor's M-Opinions are binding on the Board, which is a constituent part of the Office of Hearings and Appeals Since the

Reply to BLM Response at 16 (citing United States v. State Investment Co., 264 U.S. at 212 ("[BLM has] no jurisdiction to intermeddle with [a patentee's property rights] in the form of a second survey")); id. at 20 ("Proper resurvey execution would preserve the Hall 1909 south . . . [boundary] line of San Felipe and eliminate the conflict area from appearing as part of Ranchito's plat, and thus, neither impair San Felipe's, nor Santa Ana's, patented land"); Reply to PSA Response at 10 ("There is no survey rule that sustains BLM adding land to Ranchito by dependent resurvey"); Consolidated Reply at 3 ("Instead of accurately locating a boundary supported by U.S.-recognized title, Olver 2013 attempts to create title for Santa Ana for the Ranchito conflict area where none exists at the expense of diminishing San Felipe's U.S.-recognized title, which BLM survey guidance prohibits"), 19 ("[T]he resurvey was not executed in conformity with U.S. laws and survey guidance where it traced a boundary [for the Ranchito Tract] to include land not confirmed or titled to Santa Ana for Ranchito").

Reply to BLM Response at 16. See id. 43 C.F.R. § 4.1; Great Basin Resource Watch, 182 IBLA 55, 67-68 (2012) (citing

United States v. 175 IBLA 363, 377 n.14 (2008)); Sol. Nature of Solicitor's on the Office of Hearings and Appeals," M-37003 (Jan. 18, 2001) (2001 Sol. Op.), at 1 ("Solicitor's are binding on the OHA"); Letter to Governor,

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Solicitor's 2013 Opinion, which confirmed BLM's authority to perform a corrective resurvey and directed BLM to perform one, is binding on the Board and final for the Department, we lack the authority to adjudicate BLM's authority to undertake the corrective resurvey at issue.

We also are barred from adjudicating PSA's claim of title to the disputed lands since, in undertaking and approving the corrective resurvey, BLM did not purport to adjudicate the competing claims of title to such lands, nor did the State Director purport to determine title in adjudicating PSF's protest to the proposed official filing of the survey plat.48

Accordingly, we are concerned only with whether BLM properly performed the 2013 resurvey, in accordance with applicable survey law, accepted by the Board and the Federal courts, and policy guidance in the 2009 Survey Manual. At issue is whether Olver, in his 2013 corrective dependent resurvey, properly located the southern boundary of the San Felipe Pueblo Grant, pursuant to the authority acknowledged by the Solicitor, in the 2013 Opinion.

PSF argues, however, that, since the Solicitor's Opinions constitute legal interpretations that lack the force of law, they do not exercise "absolute control" over the matters at Whether or not the Solicitor's Opinions carry the force of law in Federal court proceedings, they nevertheless remain binding on the Board.50 Since our authority derives entirely from the Secretary and since the Secretary has dictated that we are bound

PSF, from Solicitor, dated Sept. 13, 2013 of the Solicitor are the final, binding, legal position of the Department that all bureaus and offices must follow as a legal matter"); Letter to Governor, PSF, from Solicitor, dated July 30, 2013, at 1 ("[M]y Opinion is . . . reflect the official legal position of the Department. My Opinion recognizes the Department's authority to conduct a resurvey.").

See Ramona Lawson, 94 IBLA 220, 227 (1986) (title and resurvey questions are separate matters).

Reply to BLM Response at 5 (citing v. Harris County, 529 U.S. 576, 587 (2000) ("Interpretations such as those in opinion letters - like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law - do not warrant Chevron-style deference [by Federal courts]"); The Wilderness

v. U.S. Fish and Wildlife Service, 353 F.3d (9th Cir. 2003), amended F.3d 1374 (9th Cir. 2004) ("Solicitor's cannot properly

be viewed as an administrative agency interpretation of statute that has the force of law. Such opinions, which normally are the product of individual lawyers advising their client agencies, and which do not in their formulation involve procedural protections comparable to an agency's rulemaking procedures, do not invoke Chevron deference.")).

United States, 731 F.3d 881, 891 n.4 (9th Cir. 2013), denied, 135 S. Ct. 160 (2014).

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by Solicitor's Opinions, we are not free to disregard the legal interpretations made in Solicitor's Opinions.51

PSF also argues that, to the extent that the Solicitor's Opinions rule "on a matter 'beyond' the Department's jurisdiction" or in a manner that is "clearly inapposite to

law or court decision," the Opinion would not be binding on the Board.52 Instead, the Board would be required to "adhere to [the] superior authority of [F]ederal law and controlling court precedent."53 We note that PSF offers no evidence that, in the 2013 Solicitor's Opinion, Solicitor either strayed beyond the Department's jurisdiction or acted contrary to Federal law or court precedent in stating that BLM had the authority to perform a corrective resurvey, not to alter the common boundary between the San Felipe Pueblo Grant and the Ranchito Tract, as confirmed and patented by the United States, but to correct the erroneous 1909 resurvey by Hall, thus restoring the common boundary to its true original position.

Therefore, we do not accede to any of PSF's arguments to the effect that the Board is not bound by the 2013 Solicitor's Opinion because to do so is to act contrary to the facts or the law regarding the actual state of title to the disputed lands. Nor wil l we readjudicate any of the issues resolved by the Solicitor. Rather, the Solicitor's determination has fully and finally resolved for the Department whether BLM is authorized to correctively resurvey the southern boundary of the San Felipe Pueblo Grant. Thus, we wil l not decide whether correctively resurveying the boundary, in accordance with the Solicitor's 2013 Opinion, has the effect of diminishing PSF's restricted fee or reservation lands, contrary to Federal statute or controlling Federal court or Departmental precedent.

We are only concerned with whether BLM properly resurveyed the boundary as directed by the Solicitor. If it did so, that line has been restored to its true original position, as a matter of fact and law - to the position it occupied when the adjoining Pueblo landholdings were first created by the Spanish government or successors-in-interest to that government, when they were conveyed to the United States in pursuant to the Treaty of Guadalupe Hidalgo, when Congress and the CPLC recognized them in 1858 (San

C.F.R. § § 4.1 ("[The [OHA] [which includes the Board] . . . is an authorized representative of the Secretary for the purpose of hearing, considering, and deciding matters within the jurisdiction of the Department") and 4.410(a) ("[A] decision [which] has been approved by the Secretary [is not subject to Board review]"); 2001 Sol. Op. at 2; Blue Star, Inc., 41 IBLA 333, 335 ("It follows that it was not contemplated that one officer who commands all of the authority of the Secretary should employ that authority to invade the province of another such officer who is not under his direct supervision"), 335-36 (1979).

Reply to BLM Response at 6. Id.

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Felipe) and 1897 Ranchito), and, finally, when the United States issued patents for them in 1864 (San Felipe) and 1909 Ranchito).54 It is true that a resurvey may only reestablish the boundaries of patented lands, and thus it may not alter such boundaries, as they were created at the time of patent. That is precisely what Hall attempted, but failed, to do in 1909, and what Olver was charged with doing correctly in 2013. Thus, the southern boundary, as correctively resurveyed by Olver, is in the position it has always occupied, since the San Felipe Pueblo Grant and the Ranchito Tract were originally confirmed and patented, respectively, to PSF and PSA. Since, because of the corrected dependent resurvey, the southern boundary of the San Felipe Pueblo Grant has been restored to its true original position, BLM has not diminished or otherwise infringed upon the private property rights represented by the San Felipe Pueblo Grant, as recognized by the United States.55 Those property rights remain unaltered.

See Patent to PSA, dated Oct. ("[United States conveys tract partially described, as follows:] Beginning at what is known as and called the Infernado, situate about four hundred yards east of the present Rio del Norte and south of the plaza of Angostura, said Loma Infernado being the north boundary the purchase made by the Indians of Santa Ana from Contreras and others in the year 1763, running thence due east to a point two miles from the present bed of the Rio del Norte, thence southward" (Emphasis added)); CPLC Final Decree, dated Dec. at 4 ("[Tract conveyed by Contreras and others partially described, as follows:] upon the north, to the middle of the Angostura [Grant] where there is placed a cross and bounding with the property of the Pueblo San (Emphasis added) (Ninth Finding of Fact)), 4 of land described in the ninth finding of is fully comprised and included within the boundaries set forth and described in the fourteenth finding of fact" (Eleventh Finding of Fact)), 4 Pueblo of Santa Ana . . . became and were at the date of acquisition of the Territory of New Mexico, vested with a complete and perfect title to the lands and premises described in the fourteenth finding of fact[ , ] . . . and it is hereby ordered, adjudged and decreed that the same be and is hereby confirmed to the Pueblo of Santa Ana" (Thirteenth Finding of Fact)).

2013 Sol. Op. at 13 ("A resurvey would not adjust the quantity of lands set aside for the Pueblos,... but rather, would define more accurately the location the original boundaries (Emphasis added)); Sol. Op., Dispute Between Santa Ana Pueblo San Felipe Pueblo: The Secretary's Authority to Correct Erroneous Surveys, Revisiting Part IV of Solicitor's Opinion on Pueblo Boundary' 96 ID. 331 (1988)," dated Dec. 5, 2000, at 13 ("[T]he Department is seeking not to redraw the boundaries of a[n] [Indian] reservation in order to adjust the quantity of lands set aside for Indians, but instead is seeking to use its statutory survey authority to define more accurately what those boundaries are").

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Whether the corners that control the lines were determined by the dependent resurvey to be either 1) existing, and thus could be recovered by evidence of the original monuments and/or their accessories; 2) obliterated, and thus could be recovered by perpetuations or other acceptable evidence; or 3) lost, and thus could only be recovered by proportionate measurement from existing corners, in point of fact, such corners and lines have been in the same position as when they were originally surveyed, as determined by the best available evidence.56

Once reestablished by dependent resurvey, the lines are restored to the same position on the earth's surface that they have occupied since the date of the original survey, thus protecting the bona fide rights of all private landowners and their successors-in-interest, whose property rights are tied to the original survey lines, as required by 43 § 772 (2012). 57

Above all, it is clear that, in objecting to Olver's corrective resurvey, the Pueblo of San Felipe is not arguing that Olver failed, in undertaking the mechanics of surveying, to conform to applicable survey law and Survey Manual policy guidance, but rather that the result of the survey placed title to the disputed lands in the overlap in the hands of PSA, not PSF.58 However, that result, which would have involved the allowance of PSA's title and the disallowance of PSF's title to the disputed lands, was not achieved by Olver's 2013 resurvey, which was upheld in the State Director's August decision, and which is now

David Viers, 143 IBLA 209, 217-18 (1998):

A dependent is a and of the lines of the original survey in their true original positions according to the best available evidence of the positions of the original corners. The section lines and lines of legal subdivision of the dependent resurvey in themselves represent the best possible identification of the true legal boundaries of lands patented on the basis of the plat of the original survey. In legal contemplation and in fact, the lands contained in a certain section of the original survey and the lands contained in the corresponding section of the dependent resurvey are identical.

See, e.g., Sweeten v. U.S. Department of Agriculture, 684 F.2d 679, 681-82 (10th Cir. 1982); United States v. Doyle, 468 F.2d at 636; Howard Vagneur, 159 IBLA 272, 277 (2003).

SOR at 15 ("[T]he BLM cannot now properly perform a dependent resurvey of the San Felipe Grant's Overlap of Ranchito in conformity with survey law and guidance that would result in an enlargement of Ranchito by moving its boundaries to include any amount of the 695-acre Overlap and result in of the lands previously-patented to San Felipe").

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on appeal to the Board.59 Nor was it decreed by the Solicitor in her 2013 Opinion. Olver's 2013 resurvey only served, at the Solicitor's direction, to precisely delineate the extent of PSA's and PSF's respective claims to the disputed lands.

Whether Olver accurately reestablished Clements' originally surveyed southern boundary of the San Felipe Pueblo Grant, in common with Walker's originally surveyed northern boundary of the Ranchito Tract, is all that is presently subject to review and adjudication by the Board.

Did PSF Carry its Burden of Showing Error in the Corrective Dependent Resurvey of the Southern Boundary of the San Felipe Pueblo Grant?

PSF appeals from a BLM decision dismissing its timely protest to BLM's proposal to officially file the plat for a corrective dependent resurvey of the San Felipe Pueblo Grant.

[2] As the delegate of the Secretary of the Interior, BLM is authorized to resurvey the public lands, in order to reestablish the corners and lines established by earlier official surveys.60 That authority is made applicable to Indian lands and

As indicated, a dependent resurvey is designed to retrace and reestablish the lines of the original survey, marking the legal boundaries of the affected lands, in their "true original positions," according to the best available evidence of the positions of the original corners.62 Generally speaking, a dependent resurvey places the lines in the same position on the earth's surface that they have occupied since the date of the original survey, thus fulfilling BLM's duty, under 43 U.S.C. § 772 (2012), to protect the bona fide rights of private landowners and their successors-in-interest, whose property rights are tied to the original

2009 Survey Manual, § 5-77, at 144 ("[T]he surveyor is not clothed with legal jurisdiction to dispose of disputes. The surveyor's job is to ascertain the facts in each situation, and render a representation and mark the boundaries of Federal interest lands.").

Act of Mar. 43 U.S.C. § 772 (2012); Howard Vagneur, 159 IBLA at 277. 25 U.S.C. § 176 (2012); see Pueblo Taos v. Andrus, 475 F. Supp. 359, 365, 366 ("The

Secretary of the Interior specific authority to survey Indian lands, 25 U.S.C. § 176 (1976), . . . and authority to correct erroneous land surveys, 43 U.S.C. § 772 (1976).") (D.D.C. 1979); Decision 3.

2009 Survey Manual, § 5-10, at 130; see, e.g., Howard Vagneur, 159 IBLA at 277, 278; 85 IBLA 335, 336 (1985).

See Sweeten v. U.S. Department of Agriculture, 684 F.2d at 681-82; Howard Vagneur, 159 IBLA at 277; 2009 Survey Manual, § § 5-10, and 5-24 to 5-26, at The Act of Mar. 3, 1909, codified, as amended, at 43 U.S.C. § 772 (2012), provides, in relevant part,

190 IBLA 34

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Stated more fully in J.M. Beard (On Rehearing), 52 L.D. 451, 453 (1928):

[T]he section lines and lines of legal subdivision of the dependent resurvey in themselves represent the best possible identification of the true legal boundaries of the lands patented on the basis of the plat of the original survey. . . . In legal contemplation, and in fact, the lands contained in a certain section of the original survey and the lands contained in the corresponding section of the dependent resurvey are identical.

Further, as we said in State of Missouri, 142 IBLA 201, (1998) (citing John W. Yeargan, 126 IBLA 361 (1993)): "The proper execution of the dependent resurvey serves to protect the bona fide rights of the land owners, because a properly executed dependent resurvey traces the lines the original survey"64 (Emphasis added.)

We have long recognized that original lines are to be reestablished under a dependent resurvey by recovering or restoring the original corners by any of three methods, in descending order of importance.65 First, an "existent" corner can be recovered by finding substantial evidence of the monument and/or its Second, an "obliterated" corner, where there are no remaining traces of the monument or its accessories, can be recovered where the corner's location has been perpetuated, or where substantial evidence, in the form of the acts or reliable testimony of qualified local authorities or witnesses or some acceptable record evidence, establishes its

Collateral evidence regarding the location of an original corner will be accepted as "duly supported, generally through proper relation to known corners, and agreement with the field notes regarding distances to natural objects, stream crossings, line trees, and off-line

.. resurvey or [of a survey of public lands] shall be so executed as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey or retracement." See, e.g., Co., 135 IBLA (1996).

J.M. Beard (On Rehearing), 52 L.D. at 453; R.J. 46 L.D. 288, 289 (1918) ("The object of [43 U.S.C. § 772 (2006) ] . . . is to provide merely for the restoration of the old survey. It does not authorize new or irregular surveys to mark out and define the boundaries of claims other than according to the lines of the original surveys, where in so doing conflicts between claimants would be involved. The fact that a senior entryman may have innocently located the lines of his claim at variance with the Government survey, as determined on resurvey, does not entitle him to a metes and bounds survey of his claim to the detriment of a junior entryman claiming according to the true lines.").

See Howard Vagneur, 159 IBLA at 277. 2 0 0 9 Survey Manual, § 6-11, at 148. § 6-17, at 149.

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tree blazes, etc., or reliable testimony."68 Third, where a corner cannot be considered existent or obliterated based on substantial evidence regarding its location, it wil l be regarded as a "lost corner" to be restored by reference to one or more interdependent corners, and thus by the method of proportionate measurement, in harmony with the record of the original survey.69

In order to overturn a dependent resurvey prior to the official filing of the survey plat, a party challenging the resurvey on appeal bears the burden of establishing, by a preponderance of the evidence, that the resurvey was not executed in conformity with the policy guidance in the 2009 Survey Manual, or otherwise is not an accurate retracement and reestablishment of the lines and corners of the original survey.70

In objecting to a dependent resurvey, an appellant necessarily challenges the professional opinion of BLM's Cadastral Survey experts. It is well established that BLM is entitled to rely on the professional opinion of its experts, where it concerns matters within the realm of their expertise and is reasonable and supported by record evidence.71 Thus, a party challenging a dependent resurvey "must establish that there was error in the methodology used or the results obtained, or show that the resurvey was carried out in a manner that did not conform to the [Survey] It is "obliged to offer more than a difference of

PSF, which offers no contrary professional opinion or supporting evidence, argues that Olver "disregards or changes" certain "controlling calls and corners" along the southern boundary of the San Felipe Pueblo Grant, in contravention of "prior controlling surveys and the record," thus fundamentally altering the accepted location of the "originally-patented However, i t does not specifically refer to any differences between Olver's 2013 resurveyed calls and corners and Clements' original 1860 or Walker's original 1900 surveyed calls and corners. Indeed, PSF provides no proof of

Id., § 6-17, at 150. Id., § § 7-1 to 7-5, and 7-7, at see, e.g., Kendal Stewart, 132 IBLA

fames 116 IBLA (1990); Stoddard Jacobsen, 85 IBLA 336.

See Charles Vetsch, 180 IBLA at 87-88; Howard Vagneur, 159 IBLA at 278; David Viers, 143 IBLA at 218; L. Boykin, 130 IBLA at 309; John W. Yeargan, 126 IBLA at 363.

State of Colorado, State Board of Land Commissioners, 187 IBLA 376, 391 (2016); FredE. Payne, 159 IBLA 69, 77-78 (2003); West Cow Creek Permittees v. BLM, 142 IBLA 224, 238 (1998).

MarkEinsele, 147 IBLA (1998). Id. Supp. at 5,9.

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monuments or accessories or any other evidence regarding the location of Clements' original surveyed southern boundary of the San Felipe Pueblo Grant or Walker's original surveyed northern boundary of the Ranchito Tract. Rather, PSF specifically refers to the fact that Olver's 2013 resurveyed calls and corners differ from Hall's 1909 resurveyed calls and corners, and in this way, PSF focuses on the wrong survey, because the goal was to reestablish the 1860 calls and corners.75 PSF has not preponderated in showing error in law or fact in the State Director's decision.

BLM was specifically instructed, by the Solicitor's 2013 Opinion, to start over again, in correctively resurveying the southern boundary of the San Felipe Pueblo Grant, disregarding Hall's resurvey to the extent that it deviated from Clements' original survey, with the aim of determining anew the location of Clements' SE and SW corners and the intervening southern boundary of the Grant. Further, we agree that, as resurveyed by Olver, the southern boundary of the San Felipe Pueblo Grant follows the northern boundary of the Ranchito Tract, as originally surveyed by Walker in 1900 and perpetuated by Joy/Perkins during their 1916 resurvey. However, Walker's surveyed northern boundary was plainly intended to coincide not only with the southern boundary of the Angostura Grant, but also with the southern boundary of the San Felipe Pueblo Grant. Thus, Olver sought to locate the common boundary of the San Felipe Pueblo Grant and the

Ranchito Tract. In doing so, he found no evidence of Clements' 1860 survey, only evidence of Walker's 1900 survey, and thus relied on the latter evidence in reestablishing the common boundary.

PSF argues, however, that Olver "impermissibly allowed Ranchito's junior survey [by Walker] to control and change the senior-patented boundary of San Felipe as reestablished by Hall But PSF does not show how Olver failed in his duty, as directed by the Solicitor, to determine where Clements and Walker had placed the common boundary, during the course of their 1860 and 1900 surveys of that boundary.

See id. at 10 ("[To the extent that Olver concluded that the northern boundary of the Ranchito Tract] constitutes 'the new b[oun]d[ar]y[] of the San Felipe Pueblo Grant[,] ' . . . none of [the calls and corners of the corrective resurvey] accord with the accepted calls and corners Hall 1909' (Emphasis added) (quoting 2013 Olver Field Notes at 5, 6, 7, 8, 15.

Id. at 15, emphasis added; see Consolidated Reply at 2 ("The protested resurvey and plat make it appear that the southern boundary of the San Felipe [Pueblo] Grant traces, and lies in common with, north boundary of Ranchito's land description as platted by the original survey of Ranchito conducted by John Walker [in 1898]"), 6 ("Olver 2013 erroneously diverted from Hall 1909 to follow Ranchito's land description as surveyed by Walker 1898").

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PSF also argues that BLM should have accepted Hall's resurveyed southern boundary of the San Felipe Pueblo Grant since "[t]hat boundary is a straight line from the [SE] corner to the [SW] corner to align on . . . Canjilon Hi l l [ ] [ . ] " 7 7 However, in her 2013 Opinion, the Solicitor instructed BLM to disregard Hall's 1909 survey as in error, and to perform a new corrective resurvey of the southern boundary. BLM did so. Since we find no failure to abide by the dictates of the Survey Manual, we are not persuaded that the corrective resurvey was in error simply because it did not conform to Hall's resurvey, to the extent it may have aligned the southern boundary with Canjilon Hill.

PSF argues that Olver's 2013 corrective resurvey violated the 2009 Survey Manual because, in moving the southern boundary of the San Felipe Pueblo Grant reestablished by Hall's 1909 resurvey approximately one-half mile north to follow Walker's 1900 surveyed northern boundary for the Ranchito Tract, BLM impaired PSF's bona fide rights, as confirmed and patented, in the San Felipe Pueblo Grant.78

The dependent resurvey "is designed to restore the original conditions of the official survey according to the record," protecting bona fide rights reliant upon the original survey.79 Further, "the corners of the original survey," which define the boundaries of confirmed and patented lands, "are unchangeable," "[e]ven if the original survey was poorly executed . . . However, in order to find an impairment, PSF must rely on its overriding conclusion that the southern boundary of the San Felipe Pueblo Grant was, in fact, properly reestablished by Hall's 1909 resurvey, and, to this extent, was unchangeable. PSF thus challenges the specific ruling in the Solicitor's 2013 Opinion that the northern boundary of the Ranchito Tract was actually situated north of Hall's southern boundary for the San Felipe Pueblo Grant, and the Solicitor's specific direction to BLM to reestablish the southern boundary of the San Felipe Pueblo Grant north of Hall's southern boundary

Reply to BLM Response at 17; see Consolidated Reply at 2 ("Olver 2013 erred by failing the survey of Wendell V. Hall in 1909 . . . reestablishing the southern . . .

boundary of San Felipe[.] . . . A resurvey performed in conformity with BLM survey guidance and law must retrace San Felipe's original as reestablished by Hall 1909"), ("BLM may correctly identify the U.S.-recognized boundary between Ranchito and San Felipe, but in doing so, may not alter San Felipe's patented boundary as reestablished by Hall 1909").

See, e.g., Consolidated Reply at 2 ("Primarily, the resurvey and resulting plat impair bona tfcfe rights of San Felipe"), 2-3, 6-7, 7 ("Olver 2013 creates a cloud on, and impairment to, San Felipe's title by materially changing the configuration of the San Felipe [Pueblo] Grant"), 17-18 (citing 2009 Survey Manual, § § 5-24, 5-26, 5-29, 5-36, 5-77, at

2009 Survey Manual, § 5-36, at 135; see id., § § 5-24, 5-26, 5-77, at Id., § 5-29, 134.

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for the San Felipe Pueblo Grant, nearer Walker's northern boundary for the Ranchito Tract.81 PSF seeks to preserve Hall's southern boundary despite the fact that the Solicitor's Opinion expressly rejected that boundary. We not adjudicate the validity of the Solicitor's Opinion by way of deciding whether Olver's 2013 corrective resurvey conformed to the Survey Manual, since we are bound by that Opinion.

In the final analysis, PSF, PSA, and BLM seem to agree that the ultimate aim of the corrective resurvey was to eliminate the perceived overlap between PSF's and PSA's Pueblo landholdings, thus resulting in a common boundary. Plainly, that is best done by determining the location of the boundary marking the southernmost limits of the San Felipe Pueblo Grant, which was confirmed and patented, as originally established by Clements in to the extent it coincides with the northernmost limits of the Ranchito Tract, which was likewise confirmed and patented, as originally established by Walker in 1900.

PSF has not carried its burden to demonstrate that BLM violated applicable Board precedent, Federal survey or policy prescriptions of the 2009 Survey Manual. We, therefore, affirm the August decision denying PSF's protest to the proposed official filing of the plat of corrective dependent resurvey to the extent it reestablished the common boundary between the San Felipe Pueblo Grant and the Ranchito Tract.

To the extent the merits of the appeal have not been explicitly or implicitly addressed, we note that the arguments advanced by PSF have been considered and rejected as contrary to the facts or law, or immaterial to the final disposition of the appeal.82

See, e.g., 2013 Sol. Op. at ("Our research and analysis has led us to that the boundary between Santa Ana's Ranchito Tract and the Pueblo of San Felipe [Grant] lies north of the southern boundary line of the San Felipe patent [as reestablished by Hall in 1909]").

See Glacier-Two Medicine Alliance, 88 IBLA (1985) (citing National Labor Relations Board v. Sharpies Chemicals, 209 F.2d 645, 652 (6th Cir. 1954)).

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Accordingly, pursuant to the authority delegated to the Board of Land Appeals by

the Secretary of the Interior, 43 C.F.R. § 4.1, we affirm BLM's decision.

I concur:

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