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Routson v. Zinke

United States District Court, D. Arizona

September 26, 2017

Donald Routson, et al., Plaintiffs,
v.
Ryan Zinke, et al., Defendants.

          ORDER

          DAVID K. DUNCAN UNITED STATES MAGISTRATE JUDGE

         Plaintiffs Donald Routson and Rebecca Routson appealed from an Interior Board of Land Appeals' opinion affirming the rejection of their application to correct a patent. (Doc. 25) The Court has jurisdiction pursuant to the parties' consent to Magistrate Judge jurisdiction, 28 U.S.C. § 636(c), and is reviewing this appeal under the Administrative Procedures Act. (Docs. 9, 22, 30) Both parties have moved for summary judgment. (Docs. 42, 44)

         Factual and Procedural Background

         In 1871, the relevant portion of Yavapai County, Arizona, was first surveyed by S.W. Foreman. (AR 46) Although the record does not contain a complete and legible copy of his field notes, it is undisputed that Foreman described a wash and cornfields in and adjacent to Section 22. (AR 54, 56, 81-92) His survey map appears to indicate a field that is oriented northeast to southwest and straddles Sections 21, 22, 27, and 28. (AR 40, 81, 111, 134, 442, 443) His survey notes were approved and the survey plat was officially filed in 1872. (AR 46)

         In April 1913, Joseph Chiantaretto filed a Homestead Entry Application for 120 acres. (AR 437-39) The Application described the land as “NE¼, SE¼, SE¼, SE¼, S½, SW¼, SE¼, S½, SE¼, SW¼” in Section 22 of Township 16N. (AR 437-39) In September 1914, he filed an Additional Homestead application for 20 acres described as “N½, SW¼, SE½” in Section 22. (AR 430-32) In 1916, Chiantaretto filed notice of his intent to make a final three year proof to establish claim to the land. (AR 417-19) His final proof was supported by testimony from two witnesses and Chiantaretto himself. (AR 400-12) His notice of intent was published and he paid. (AR 398, 413-16, 417-19) In November 1916, the United States issued a patent to Joseph Chiantaretto for the 140 acres described in the Application and Additional Application. (AR 53, 398) (“Chiantaretto Patent”). All of the documents involved in this process describe the land in the same way as the Application and Additional Application.

         In 1924, Sidney E. Blout resurveyed this area. His field notes were approved in 1926 and the resurvey plat was refiled in 1928. (AR 46, 93-110, 282-87) The Blout Survey was conducted “under Special Instructions dated February 11, 1924.” (AR 282) Those instructions are not in the record. The BLM and IBLA concluded that this was a dependent resurvey. The Routsons characterized it as a resurvey.[1] (Doc. 50) The Blout Survey's map contains considerably more detail than the Foreman Survey. As relevant here, the Blout Survey map appears to show a pasture that is oriented northwest to southeast and straddles the southwest corner of Section 22 and the northwest corner of Section 27. (AR 39, 135, 280, 281[2])

         In 1964, the United States Department of Agriculture's Soil Conservation Service prepared a conservation plan map for land owned by Harry Chiantaretto (“1964 Chiantaretto Map”). (AR 41, 275) It appears that someone hand-drew pastures and fence-lines onto this map but the record contains no explanation or context for this map.

         In January 1982, the Routsons acquired 40 acres from Harry Joseph Chiantaretto's family (“Transferred Property”). (AR 122) It is undisputed that the Routsons purchased and received 40 acres. This acquisition occurred without a survey and the Transferred Property was described as “the South half of the Southeast quarter of the Southwest quarter, and the West half of the Southwest quarter of the Southeast quarter of Section 22.” (AR 114, 122) Shortly after purchasing the Transferred Property, the Routsons made improvements, including the addition of an underground irrigation system, to land outside the Transferred Property (“Disputed Property”). (Doc. 46 at 12:7-16)

         The Disputed Property is divided into two areas: Area A and Area B. Area A falls entirely within Section 22, is on the north and west side of the Transferred Property, is a sinuous shape that appears to follow the northwest bank of the wash, and encompasses 15.91 acres. Section B falls within Section 27, is south of the Transferred Property, most resembles a triangle in shape, and encompasses 2.5 acres. (AR 277) Based on a review of the maps in the record, it appears that there is a rectangular field that is aligned from the northwest to southeast and that spans Area A (northwest corner), Area B (southeast corner), and the Transferred Property (“Rectangular Field”). (Doc. 43-5 at 2; AR 114)

         In 1994, for reasons unrelated to this matter, the U.S. Forest Service commissioned a survey that included the Disputed Property. (Doc. 31 at ¶ 30; Doc. 46 at 12-13) This survey described the Disputed Property as both distinct from the Transferred Property and as excluded in the patent to the Chiantaretto family. (Id.) In May 2000, the Routsons submitted Small Tract Act applications for the Disputed Property. (AR 259) In August 2005, the Forest Service denied these applications. (AR 259)

         In October 2006, as part of this matter, the Routsons commissioned a survey whose purpose was “to define two separate tracts of land [Area A and Area B] bounded by an existing barbed wire fence and established property boundary lines.” (AR 257 at ¶ 9; 277)

         In November 2006, the Routsons submitted an Application for Corrective Patent to correct the Chiantaretto patent pursuant to 43 U.S.C. § 1746. (AR 256-77) The Bureau of Land Management (“BLM”) denied their Application. (AR 157-61) Their petition for a stay was granted. (AR 79, 138, 141, 149) The BLM's Interior Board of Land Appeals (“IBLA”) denied their claim on appeal and on reconsideration. (AR 44-78, 112-36, 143-47) The Routsons' petition for reconsideration was denied as was their request for Director review of the IBLA decision. (AR 1-5, 17-27)

         Plaintiffs filed this matter to challenge the BLM's decision and the Court concluded that this challenge was governed by the Administrative Procedures Act (“APA”). (Docs. 25, 30)

         Standard ...


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