5509.11,10-12 Page 1 of 23 FSH 5509.11 - TITLE CLAIMS, SALES, AND GRANTS HANDBOOK WO AMENDMENT 5509.11-92-4 EFFECTIVE 8/3/92 CHAPTER 10 - TITLE CLAIMS AND ENCROACHMENTS 10.2 - Objectives. (FSM 5510.2). 10.3 - Policy. (FSM 5510.3). 11 - PLANNING. Base plans for resolution of title claims and encroachments upon realistic time and cost estimates for the program of work. Programming for aspects of this work associated with inventory, investigation, and resolution is in the Lands Program Component. These include, for example, the resource activities associated with the management of: Native American land, other Land Title Claims, Encroachments, Land Sales, Grants, and Selections. 11.1 - Financing the Job. Current program budget development must reflect elimination of the backlog of cases. Finance new violations as follows: 1. Administrative Costs. Accomplish the investigation, reporting, and processing of unexpected, unplanned trespass cases by using the financing principles in FSH 1909.13, Program Development and Budgeting Handbook, chapter 40. 2. Survey Costs. Consider the following methods to cover costs of needed surveys: a. Priority realinement of previously financed and programmed cadastral survey work. b. Program funds to accomplish the survey through contracting or force account. Programming is now done 2 years in advance. c. Survey by adjoining property owner. d. Cooperative survey with adjoining property owner(s). e. A request for assistance from the Bureau of Land Management. 11.11 - Files and Records. (FSM 5591.2). Effective management of the National Forest lands and their title depends heavily upon maintenance of a complete title file; the records that represent the history of the title chain, the survey of the boundaries, the land occupancy and uses, and the agreements between parties are critical to the legally correct, fair, and just resolution of a title claim and encroachment case. Forest Supervisors and District Rangers shall establish and maintain case files of all known and suspected title claims and encroachments. Each file shall contain the name of the claimant or trespasser; the type of claim or encroachment; location by public land surveys, private surveys, or topographic features; dates and other information, including correspondence; and copies of applicable historical records concerning uses on the subject land. Litigation cases must also show the filing date and civil number and name. 11.12 - Categories. Title claims and the ensuing encroachments develop or exist based on numerous forms of claims or color of title. It is possible to categorize most title claims and encroachments into one of the following types: 1. Property line irregularities or disputes. a. Disparity between two or more surveys. b. Vacancy and overlapping surveys. c. Erroneous surveys. 2. Color of title. a. Outstanding rights. b. Defective title. (1) Tax deeds. (2) State patents. (3) Erroneous land description. (4) Unrecorded deeds. (5) Void documents. (6) Title search errors. c. Adverse possession. (1) Perfected under State laws. (2) Errors in survey or title documents. (3) Trespass. d. Riparian rights. (1) Accretion and reliction. (2) Avulsion. (3) Omitted lands. (4) Meander line boundary. e. Unperfected entry. (1) Indian allotments. (2) Homesteads. (3) Mining claims. (4) Other public land laws. (5) Lieu selections. 3. Land possession claims. a. Native American. (1) Aboriginal title. (2) Treaty. b. Spanish land grant. 4. Use claims. a. Purported easements. (1) 1866 and 1891 acts. (2) State water right laws. b. Ingress/egress. c. Water rights. d. Mining claim occupancy. e. Reservations and outstanding rights. 11.13 - Inventory. Plan and carry out the inventory of title claims and encroachments in connection with other resource management activities. Marking and posting property boundaries will reveal most potential and suspected cases. Other title claims and encroachments become known through observance of physical occupation of the land or title evidence. 1. Inventory all known and suspected title claims and encroachments. Include all cases where there is a claim on the land, even if the claimant cannot produce any supporting documentation. Include, for example: a. Landline and boundary controversies. b. Encroachments. c. Partial interests, such as easements, outstanding rights, and purported rights. d. Indian allotments. e. Aboriginal title. 2. Maintain a separate listing of cases involving apparent misuse of mining claims or occupancy of suspected invalid mining claims. 3. On the inventory, separate cases into active cases, known cases, and suspected cases, including the following: a. Map key reference. b. Type of claim or encroachment. c. Name of claimant or trespasser. d. Location. e. Acreage. f. Status of cadastral survey (or, in the case of mining claims, claim name, type, and recording data). g. Date of discovery. h. Description of improvements. i. Remarks (for example, taxing status, reserved or acquired lands, date, and status of validity determination). j. Priority (District and/or Forest). 11.14 - Priority. Consider the following when developing criteria for assignment of priority: 1. Litigation against the United States. 2. Cases that may be resolved under existing authorities. 3. Relationship and precedent setting to neighboring or similar cases. 4. Value of land and improvements and/or size. 5. Potential for litigation. 6. Impact upon other resource management activities. 7. Time since discovery. 8. Degree of concern because of interest and inquiries by the claimant, trespasser, or others. 11.2 - Investigation. Make a systematic and prompt investigation of all suspected encroachments. 11.21 - Documentation. Document in clear, unambiguous terms the facts surrounding each case. When investigating and documenting an encroachment, follow procedures that would not compromise the case from a legal standpoint. It is best to compile the documentation in a Litigation or Title Claim and Encroachment Report (sec. 13.11). 11.22 - Personal Contact. Use personal contacts as the first step in the investigation and resolution process, except for cases in litigation or when these contacts would adversely affect a preliminary investigation. Make no contact until there has been at least a preliminary investigation into the matter and the District Ranger has approved the contact. Personal contact places the claimant or unauthorized occupant on verbal notice that a suspected problem exists, and it may prevent additional trespass and resource damage. If evidence warrants and there is potential for irreversible resource damage, it may be necessary to obtain an injunction. Prompt action may be important; however, be sure to distinguish between a bona fide claim and trespass that does not involve a bona fide claim. Criminal charges are not appropriate when title to the land is a valid issue. Learn from the claimant or unauthorized occupant the reasons for their occupancy; for example, a survey, title document, a claim of adverse possession or color of title, or an occupancy based upon a mining claim. Obtain copies of documents and other information on which the claimant or occupant bases claim or action. Provide the person(s) with the details of Forest Service planned actions; that is, research status records, corner search and found corners, survey records, certified status check from the Bureau of Land Management, and so forth. Do not make personal contact when a lawsuit has been filed against the United States or its officers. Make no contacts, oral or in writing, with the plaintiff, the plantiff's attorney, or other representative relative to the facts of the case. The responsible Forest Officer shall forward all requests for information by the plaintiff, the plaintiff's attorney, or anyone else, to the United States Attorney through the Regional Attorney or the Attorney in Charge, or directly if the time factor is critical. 11.23 - Written Confirmation. Confirm the initial personal contact by certified letter to the claimant. Avoid imperative demands in the letter. Confirm the date for resolution of the suspected encroachment with the claimant. A more strongly worded letter may be necessary when an encroachment is just starting, appears willful, and resource damage seems likely to result. If the claimant ignores this letter, seek a temporary restraining order. 11.24 - Research for Factual Records. 1. Check Forest Service status records for information about how and when the land acquired National Forest status and for information about outstanding rights, reservations, encumbrances, and withdrawals. Obtain copies of all revelant laws, Presidential proclamations, Executive orders, public land orders, and similar documents. 2. For acquired lands, obtain the acquisition file. This file may be on microfilm, in a closed file, or at the Federal Records Center. Copies of homestead patent records and others are available from the National Archives. 3. For reserved National Forest land, check the Bureau of Land Management (BLM) ownership records for other documents as appropriate. For example, the BLM master title/plats, BLM tract records, General Land Office survey plats, field survey notes, and other records (sec. 11.25(c)). 4. Check other Forest Service records that may have a bearing on the case. For example, helpful information may be found in different vintage maps and aerial photos, history files of the forest, range permittee files, range allotment files, road files of the forest, Forest Service land classification records, reforestation files, range improvement files, forest survey plats, corner search records, and working papers. 5. Obtain the following information from the county offices. Certified copies of these documents are necessary only if requested by the Office of the General Counsel. a. Copy of the deed into the United States or judgment. b. Copy of the deed into the claimant. c. Copies of tax assessment or payment records, if any, on tract in question. A certified statement from the county tax collector citing the land description, amount of taxes paid, by whom, and year of each payment is sufficient. d. County ownership plat. e. Recorded private survey documents. 6. Abstracts. a. In adverse possession or color of title cases, prepare or obtain an abstract of documents on the claimant's land; begin with the deed into the claimant. List each document in the claimant's chain of title. Include wills or court decisions and similar essential conveyance data. b. In title claim cases, an abstract is necessary for both the Government's chain of title and the chain of title of the claimant. These abstracts must include the deed into the United States and the deed into the claimant, and must go back to a common predecessor in title. This may mean going back to the grants out of the State or to land patents from the United States. It is often possible to obtain the abstract for the chain of title of the United States tract from the Federal Records Center. The abstract for the chain of title of the claimant often is available from the claimant or the claimant's attorney. If there is title insurance for either tract of land, obtain a copy of the policy. It still is necessary to obtain an abstract or certified copies of deeds. 7. Obtain from the claimant any documents that support the claim. 8. Discuss cases with present and former district and forest personnel familiar with the area. If survey problems exist, contact a cadastral surveyor and obtain a written evaluation of the survey problems. 9. Conduct field examination. Take photographs, investigate, and note on-the-ground evidence of past and present occupancy (sec. 13.11). 10. Obtain affidavits from residents familiar with the historical use and occupancy of the property. 11.25 - Public Records. When necessary, use other public records to obtain documents missing from Forest Service title files. 11.25a - County Records. The County Recorder is the most common source of information about title. This office is known by various names, including County Recorder, Register or Register of Deeds, the County Clerk's Office, and the County Auditor's Office. State law provides for the recording of title documents and the effect of such records as notice to creditors, purchasers, incumberancers, and others who are interested. 1. Information available includes, for example: a. Recorded deeds. b. Current and historical ownership of property. c. Mortgage on property. d. Liens against property. e. Mining claim location notices. f. Water users association articles of incorporation and stock subscriptions. g. Recorded plats and maps. h. Power of attorney. i. Abstract records. j. Other transaction evidence. 2. Documents on file in the county records usually are maintained in the following manner: a. Entry Book. The entry book contains a listing of all instruments recorded in the order received. The entry includes a unique entry or instrument number, the names of the parties, the date, hour, day of month, and year of filing, and a brief description of the premises for the filing. b. Grantor Index. A book, indexed by grantor, that contains a listing of all deeds and final judgments or decrees partitioning or affecting the title to or possession of real property. This index shows the number of the instrument, name of each grantor (in alphabetical order), date of instrument, time of filing, kind of instrument, consideration, the book and page and entry number under which it is recorded, as well as a brief description of the premises (the part of the deed that states the names of the parties and sets forth the facts of the transaction). c. Grantee Index. A book with the same particulars as grantor index but indexed by grantee. d. Mortgagor Index. A file or book in which all mortgages, deed of trust, liens, and all other instruments in the nature of encumbrances upon real estate are maintained. This index shows the number of instrument, the name of each mortgagor, debtor, or person charged with the encumbrance in alphabetical order, name of mortgagee, lien holder, creditor or claimant, date of instrument, time of filing, nature of instrument, consideration, the book and page and entry number under which recorded, and a brief description of property charged. e. Mortgagee Index. A file or book with the same particulars as mortgagor index but indexed by mortgagee. f. Chattel Mortgage Index. An index of any item of movable or immovable property and fixture, except those classified as real estate. g. Recorded Maps, Plats, and Subdivision Index. An index of maps and plats of a subdivision of land situated in a city, town, or county and approved by these authorities. h. Power of Attorney. A list of those authorized to act as attorney or agent for another. i. Miscellaneous Index. An index containing all instruments not provided for elsewhere. j. Transcript of Judgment Index. An index of debts or obligations created by decision or decree of courts. k. Military Records. A book listing honorable discharges from the military services of the United States and all orders, citations, and decorations of honor relating to military service. l. Mining Claims Index. An index of location notices and assessment notices. Some counties break this index down into lode and placer claims indexes. m. Federal Tax Liens. A record of tax liens filed by the United States against individuals and companies. n. Tax Deed Book. A book listing properties sold for taxes. o. Water Users Association. A list showing articles of incorporation and stock subscriptions to the water users association. p. Book of Record. A book that brings together most of the preceding items, with the exception of chattel mortages. q. Plat Books. A book of present ownership maps and plats drawn to a convenient scale. These books show current record owner of each tract of land in the county. r. Abstact Record or Tract Book. A document that shows by tract every conveyance or encumbrance or other instrument recorded, the date and character of the instrument, time of filing, and book, page, and entry number where the same is recorded. 3. Use of County Records. a. The Recorder. Recorders can provide names of grantors and grantees, the location, the price paid and the approximate date; or they can provide the name of a contact who has this information. The assessor, treasurer, and county clerk also can provide assistance; however, the recorder is the key contact to track down realty transactions. b. Names. Spelling of names is important; many names are misspelled. For example, John O. Malley, the name in the deed, would appear under the letter M in the grantor or grantee index. However, a mortgage for the same person was made under John O'Malley. The mortgage would appear under the letter O. If the name searched for does not show up in the proper location, continue searching under probable misspelling. c. Locating Documents. The quickest way to find documents in a recorder's office is by the book, volume, and page number of the type of instrument sought. If the book, volume, and page number are not available, the instrument may be located by the name of the grantor or grantee and the township, range, and section. The recorder's assistance may be necessary initially to research county records or to find obscure documents. 11.25b - State Records. 1. Location of Records. Records of the State Land Board or the State Land Commission, as it is called in some States, are frequently beneficial in title claim cases. The records kept in this office deal with all lands granted to the State by the United States or others including the State's claim to the bed of any lake or stream which the State perceives to be navigable for title purposes. These records also include lands or interest in lands granted by the State to others. 2. Central Index. The State indexes records in a central index normally under custody of the State Land Board. The index includes the following types of information: legal description of a land transaction; when the land was acquired, leased, or disposed of; where it is possible to find abstracts, deeds, contracts, or indexes of ownership to the land; the name of the State agency acquiring, using, holding, or disposing of the land; the name of grantor or grantee if the land disposed of was disposed; and nature of State's interest in the land disposed of. 3. Reasons to Visit. Reasons to visit this office include the need to research: a. Ownership of land. b. State oil and gas leases. c. Rights-of-way the State may have. d. State mineral reservations. e. Transaction evidence. 11.25c - Bureau of Land Management Records. It is important in title claim cases to check the Forest Service status record against the Bureau of Land Management (BLM) records and to reconcile any differences. The BLM, successor to the General Land Office, is responsible for the performance of the executive duties relative to the maintenance of records of original survey and the appropriation, entry, settlement, sale, and related activities on the public lands of the United States, subject to appropriation and entry. 1. Kind of Information Provided. a. Orders relative to jurisdiction of Federal lands. b. Withdrawals for administrative sites, power sites, and so forth. c. Survey plats, including mineral surveys. d. Survey plat field notes. e. Patents by number, name, and date. f. Lands granted from common schools, institutional grants, reservoir sites, and so forth. g. Certain rights-of-way, easements, and so forth, granted by the United States. h. Railroad, wagon road, and other similar grants. 2. Kind of Instruments, Books, or Materials. The BLM maintains the following records in its State offices: a. Historical Index. This is a summary and index of all essential actions that have affected the title, use, or availability of public lands and resources. This index is used in the new status system and corresponds to the tract book used in the old system. b. Master Tract Plat. This is a plat used in conjunction with the Historical Index; it corresponds to the plat books used in the old system. It provides a graphic representation of the location of current actions by township, range, sections, and meridians. c. Controlled Document Index. This index contains micro-filmed copies of documents mounted in aperture tabulating cards that are arranged by meridians, townships, and ranges. Material that is too bulky for the index, such as maps pertaining to these items, are in a separate file and are not on microfilm. d. Historical Status Records. Microfilm copies of the following old status records are available at the State BLM offices. The originals are in the National Archives. (1) Tract Books. These records are in bound volumes by meridian, township, range, and section. Underneath the line designating the sections is a list of actions concerning the section. (2) Plat Books. It is necessary at times to refer to the old plat books. These are bound volumes of BLM survey plats that graphically show by township and range the actions shown on the tract book. This is the companion book to the tract book. (3) Serial Book. This is a serial record in which the BLM tracks its cases. The record shows the act, location, name of party, date and time received, and the various actions taken (by date) until final consummation when the case usually is marked closed. e. Withdrawals for Administrative, Power, and Related Sites. The withdrawal orders are microfilmed for the controlled document index and shown on the historical index and master tract plat or in the case of the old records. They are on the tract and plat books. In either case, they usually are in labeled file folders, because the material, usually maps, is bulky. f. Survey Plats. These comprise the regular BLM plats as well as the mineral survey plats. Copies are normally on microfilm. g. Field Survey Notes. These are kept with the regular surveys and mineral surveys. Usually, these are bound volumes in two sets: one for the regular surveys and one for the mineral surveys. For ease in locating the necessary book and page number, index cards are kept for each type of survey. These books contain the courses and distances used by the surveyor, the surveyor's ties, and a brief description of the land traversed. h. Patent Records. These are kept in the controlled document index. If the State (BLM) records offices do not have copies of the patent you need, obtain copies from the National Archives either through the Bureau Land Management or direct contact. i. State School and Institutional Grants. These are on microfilm in the controlled document index, as well as in separate folders by each kind of grant and by the case number of each grant. For common school grants, there is a school card file that shows the meridian, township, and range. These cards show the date of survey acceptance and withdrawals before school lands were surveyed, and they indicate whether the State received title to all or to parts of the school sections. j. Railroad and Wagon Grants. These are normally on microfilm for the controlled document index and hand copied on the old tract and plat books. k. Easements and Rights-of-Way. These are usually in separate file folders because many of these items, such as maps, are bulky. Only those portions that are easy to photograph are microfilmed for the controlled document index and hand copied on the old tracts and plat books. There are cross references to the file folder. 3. Use of Bureau of Land Management Records. The Bureau of Land Management (BLM) records show the passing of public domain land from the United States to States, counties, municipalities, or private individuals. They also show the return of the land to the United States from these sources. Withdrawal by Government agencies and rights-of-way that the BLM issues are shown. If requested, BLM allows other Government agencies to review the files for rights-of-way they have issued. At least one of the following items is necessary for use of BLM records: a. Serial number by land district, State, or date. b. Township, range, section, and meridian. c. Type of instrument, whether right-of-way withdrawal, patent, mineral survey, and so forth. 11.26 - Field Investigation of Claim Area. Undertake field investigation of cases involving litigation against the United States only after consultation with counsel. 1. Coordinate with claimant and with cadastral surveyor if there are indications of survey problems. It is essential to determine the correct and accurate location of the boundary line before initiation or settlement of a boundary line claim through negotiations by the United States. At least temporarily, mark technically correct survey lines on-the-ground before beginning negotiations or determination of facts with the claimant. Provide the claimant with an opportunity to share in the cost of the boundary survey. Obtain permission to survey and to cut branches, trees, and underbrush on claimant's land or on the disputed area. If working relations between the Forest Service and the claimant are poor, this may not be possible. In this case, it may be necessary to conduct a survey traverse to locate the boundaries of the claimed area. This traverse avoids the claimant's land and the land in dispute. 2. Take photographs, investigate, and note on-the-ground evidence of past and present occupancy (cultivation, boundary lines and corner markings, ditches, fences, buildings, timber cutting, and so on). Note points and direction of view on map or plat pictures. Describe the condition of each. 3. Note on aerial photographs the location of past and present occupancy, property corners, and boundary lines. 4. Make note of information for use in calculating rental fees and damages if the claim is invalid or a trespass. 5. Interview and secure statements from witnesses who have information about the use of the claim. 6. Request reports about soils or geology, for example, from other experts in areas involving riparian rights. 7. Ensure that the collected evidence tracks back in time to the earliest possible date. 11.27 - Evaluation and Analysis. 1. Prepare litigation report or title claim report (sec. 12.22 and sec. 13.11, ex. 01). 2. Request, through the Regional Forester, the Regional Attorney's opinion about the preparation of the litigation report or the validity of the claim and other relevant legal questions. 12 - LITIGATION AGAINST THE UNITED STATES. 12.01 - Authority. Real Property Quiet Title Act. (P.L. 92-562; 86 Stat. 1126; 28 U.S.C. 2409a, 1972). The Federal district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which the United States claims an interest. 12.1 - Scope. The Quiet Title Act provides as follows: 1. The United States may be used in a Federal Court to litigate most real property interest with the exception of security interest, water rights, or Indian land. 2. The United States shall not be disturbed in its possession of real property or interest therein pending outcome of the trial and may elect to retain interest if the decision is adverse by paying just compensation as established by the court. 3. Civil action against the United States is barred unless commenced within 12 years from the date the plaintiff or predecessor in title knew or should have known of the United States' claim of title. A recorded deed or other acts of possession in the name of the United States shall serve as constructive notice of claim of title by the United States. 4. Nothing in section 2409a shall be construed to permit suits against the United States based on adverse possession. 12.2 - Procedures. When the plaintiff or predecessor in title has filed a lawsuit against the United States under Public Law 92-562, proceed as follows. Upon receiving word of the suit, immediately begin assembling documents and other information needed for preparation of the litigation report. Use the specific Litigation Report Format in section 12.22, exhibit 01, and in section 13.11, exhibit 01 for all cases concerning title claims, sales, and grant cases. Also, see general direction under FSM 1548.11 and FSM 1570. If items required in the litigation are in the Federal Records Center, use your shelf list and make your request for documents by telephone. Explain the urgency of prompt delivery. 12.21 - Preparing Litigation Report. Review both the litigation report outline, section 12.22, exhibit 01, and the Title Claim and Encroachment, Sales, and Grants Report Outline, section 13.ll, exhibit 01. Use the latter as a reminder list of items needed for the litigation report. Carefully study all letters and documents received about the case. Pay particular attention to all details in correspondence from the Regional Attorney or the U.S. Attorney. Prepare your own list of the requested information. Answer the numbered paragraphs in the complaint. Deny or agree with all or parts of each allegation. Explain the reasons for denial or agreement; support by the facts in the report. The Regional Attorney or the attorney in charge shall review and approve the final draft of the answer for the litigation report. Prepare the original and five copies of the reports within established time limits to meet court-imposed action dates. Include the abstract, the transcript, and the other voluminous attachments in the original only. If additional time is absolutely necessary, request an extension of time from the court through the Regional Attorney. The trial attorney must have time to consider thoroughly and to prepare the case for trial. After the Regional Attorney's final review, send or carry the original and three copies of the reports to the Lands Staff, Washington Office. If it is necessary to send a litigation report directly to the U.S. Attorney, state in the letter of transmittal that the report does not constitute the Department's position on settlement authority (FSM 5511.12b). 12.22 - Litigation Report. The Regional Forester is responsible for preparing the final report, Report FS-5500-H, Litigation Report, in consultation with the Regional Attorney. To expedite review, prepare the report in two separate sections: the narrative section and the exhibits section. Attach both sections to the top side of the file. Attach the narrative section to the left-hand side of the folder(s) and the exhibits section to the right-hand side of the folder(s). Exhibit 01 shows the litigation report format. 12.22 - Exhibit 01 Litigation Report Format NARRATIVE SECTION. Include a copy of each document or pertinent parts thereof referred to in the narrative section under the exhibits section of the report, unless these documents are readily available to the reviewers, for example, certain United States Code and Code of Federal Regulations. I. Cover Page A. Case name, court, and number. B. Region, Forest, District, State, and county. C. Name, position, address, and telephone number of person(s) preparing report and date prepared. II. Table of Contents A. Prepare a brief table of contents for lengthy narrative reports so that a person who is not familiar with the facts can locate pertinent information easily. B. Prepare a separate table of contents for the exhibits section. III. Regional Attorney's Opinion Include or incorporate in the report the Regional Attorney's opinion and assessment regarding validity of Forest Service title and/or of the title claim. The opinion consists of the Regional Attorney's understanding of the law as it applies to the statement of facts appearing in the report. When the Regional Attorney has worked in conjunction with the Forest Service in preparing the litigation report, a separate legal opinion may not be necessary. IV. Assessment of Damages Consider the assessment of damages in each case. Develop this assessment with the help of the Regional Attorney. Several areas for consideration are: A. Fair Rental Value of the Occupied Land. Assess this value if the land is encumbered by improvements, is fenced, or is otherwise encompassed to the exclusion of others for National Forest purposes. The damages shall include all land rent that normally would have accrued for this type of use going back 6 years from the date of the report or from the date of occupancy if this is less than 6 years. 12.22 - Exhibit 01--Continued B. Restoration Cost. Although this normally is handled in the final court order, include it in the report as part of the itemization of damages. If the cost to cure involves correction of resources damage requiring special expertise, seek damages for reimbursement. C. Punitive Damages. One may request punitive damages, subject to the approval of the Regional Attorney, under extenuating circumstances. For example, continued and willful cutting of timber with full knowledge that the timber was on the disputed area or repeated and willful trespasses may constitute cause for requesting punitive damages. V. Statement of Facts A statement of facts relies on evidence to prove that a thing was done--that an action was performed or that an incident transpired. An unsupported statement is mere conjecture and cannot support or defend an action or position. Do not include statements that cannot be supported by evidence in this report. Include all documents or pertinent parts thereof referred to in the report in the exhibits section and cross-reference them to the narrative section. A. Background of Action 1. What is the dispute? 2. When did the dispute begin? 3. Where did the dispute begin? Include accurate, complete, and clear maps and pictures in the exhibits section. Provide sufficient detail in the legend to describe or identify pertinent details. 4. Who is making the claim? 5. How much area is involved? 6. When did the claimant or the claimant's predecessor in title know, or when should they have known, of the title claim by the United States? 7. Why was the case filed? Are there other outside factors that might affect the trial or outcome of the case? B. Facts 1. Status of claimed land and how the United States acquired interest. a. Reserved National Forest land. (1) Date of withdrawal for National Forest purposes. (2) Reference to proclamation and authority. 12.22 - Exhibit 01--Continued b. Acquired by purchase, exchange, condemnation, transfer, and so forth. (1) Date and recording data of deed or judgment. (2) Title evidence, including copies of all documents, abstract, title insurance, and certificates of use and occupancy judgments, Declaration of Taking. (3) Chronology of period and nature of uses and activities on the property in question. 2. Claimant's interest in tract. a. Chain of title or color of title. Fully explain basis for claim and identify evidence, including tax assessment and payment records. b. Nature and period of occupancy. Include photographs of improvements and other land alterations. 3. If claim involves conflicting surveys, include the following: a. History of U.S. surveys, corners, and boundary marking, including name and qualifications of surveyor. b. History of claimant's survey, including name and qualifications of surveyor. c. Maps, pictures, and drawings, along with a narrative description showing relationships of surveys to each other and to use lines (past and present). d. Copies of any conveyances that have served to perpetuate conflicting surveys. e. Analysis of the conflicting surveys prepared by a cadastral surveyor. f. Copies of pertinent parts of the survey notes. 4. Judgments, Declaration of Taking, transcript of civil action, as applicable. 5. Use documents from Forest Service files only. Include court records by reference. 6. Statement on Forest Service's assertion of ownership on behalf of the United States. Include copies of letters of demand and other correspondence indicating Forest Service's claimed ownership on behalf of the United States. 12.22 - Exhibit 01--Continued VI. List of Witnesses List the names and addresses of all persons, regardless of whether or not employed by the Forest Service, who can testify on behalf of the United States. For each of them, state official position, if any, and direct connection with the matters in litigation and briefly summarize those matters to which the witness can testify. Statements relative to testimony facts are desirable enclosures. When appropriate, prepare affidavits in consultation with the Regional Attorney. VII. Laws, Regulations, and Other Pertinent Data With the help of the Regional Attorney or attorney in charge, compile all of the Federal or State laws, Department regulations, Executive orders or proclamations, and Comptroller General's decisions; also list Forest Service Manual provisions that apply to the case, or actions which resulted in the dispute, and the obligations of all parties and the degree to which these obligations were or were not met. VIII. Suggested Answers to Complaint and Legal Defense The field unit shall prepare a draft of this section. The responsible staff person in the Regional Office shall prepare the final draft with the help of the Regional Attorney. The U.S. Attorney shall file the formal answer. A. Answer to Complaint 1. Respond to each allegation in the complaint by number. 2. Admit or deny each allegation in the complaint. 3. Briefly explain the reasons for each answer. B. Legal Defense 1. Outline any other defense, possible counter claims, or cross-complaints for damages or other relief that the United States may have. 2. Identify points of law that support the position of the United States and cite the court cases. 3. Identify any legal or procedural errors in the complaint. EXHIBIT SECTION - Identify and include in this section all evidence relative to the issues on both sides. Include all material that substantiates the statement of facts or that tends to dispel, defeat, or contradict factual assertions or statements contradictory to the statement of facts. Itemize all evidence not currently available, but that seems obtainable, that can provide additional support for the Forest Service case. 12.22 - Exhibit 01--Continued Be sure to identify, or organize, and index the following types of exhibits so that the reader can understand not only the exhibit itself, but also how the exhibit relates to the case as a whole. Include: 1. Copies of all documents referred to in complaint or report. 2. Any maps, plats, or photographs that help to explain the problem. Prepare a clear legend for each, including date and name of photographer or drafts person. Use overlays to help explain the case. Identify photo points. 3. Copies of complaints, answers, and decisions in any pertinent or companion cases filed in the same or other courts. 4. Calculations for all counter claims for damages or restoration costs. Table of Contents - Provide enough information in the index for easy identification of the exhibits. Group related exhibits to facilitate report use. Use the index as the first, or cover, page of the exhibit section. See following example: INDEX TO EXHIBITS Exhibit Page Document Date 1 1-1 Warranty Deed to United States 09/19/1937 1 1-23 Title Opinion by Attorney 12/14/1937 General 1 1-66 Affidavit by Forest 09/23/1937 Supervisor 2 2-1 Order appointing Joe Doe as 02/26/1976 Administrator of Jack P. and Jane E. Doe estate 2 2-11 Quitclaim Deed to Joe Doe 01/26/1960 from alleged heirs of Jack P. and Jane E. Doe 3 3-1 Order & Decree - Jane E. Doe 03/05/1974 estate Final Account & Report & Petition for Final Distribu- tion - Jane E. Doe died testate. 12.3 - Litigation Procedures. 12.31 - Interrogatories. In the course of litigation, opposing sides often file interrogatories or requests for admission, or witnesses are deposed. Frequently, Forest Officers are asked by Counsel to comment on briefs filed by opposing attorneys. The court must receive most of these comments within given time periods specified by the rules of court procedure. The rules require complete and accurate answers. However, make no attempt to argue the Government's case in answering interrogatories or requests for admissions. Also, do not admit to something supported only by hearsay. In such cases, it may be sufficient to state that, "The Forest Service has no direct knowledge of this," or "This is denied," if the Forest Service knows it to be untrue. Usually, there is a place for answers to interrogatories and requests for admission on the form filed by the opposing side's attorney. However, in some cases, the attorneys may include with the interrogatories and requests their instructions on where to place answers. 12.32 - Discovery. Discovery and requests for certified copies of Forest Service documents require special handling. The Secretary of Agriculture must receive copies of all documents for certification. This can be slow and somewhat burdensome. Attorneys often can stipulate that it is unnecessary to certify official files. However, in these cases, it is sometimes necessary for the person with custody of those files to testify to their authenticity. Discovery may be under either the rules of the court or the Freedom of Information Act (FSM 6270). Coordinate any Freedom of Information Act request related to litigation with the Office of the General Counsel as well as with the Regional Office freedom of information officer. The general rule is that the Government shall release material under the Freedom of Information Act unless that material is demonstrably harmful to the Government's case. However, each request requires a separate determination. 12.33 - Settlement. Compromises in or settlement of a case requires advance consultation with the Regional Forester and the Chief unless procedures for settlement or compromise were established when the case was initiated (FSM 5450.3). 12.34 - Followup on Court Orders. If unauthorized occupants still refuse to cease and desist and make necessary payments to the United States, they can be held in contempt of court. 12.35 - Closing Case. When the unauthorized occupant has met the terms of the court orders, post status records, and close the case file.