## Facts

- Byron Smith, Oliver J. Foust’s predecessor in title, obtained federal patents in 1936 for the NE 1/4 SE 1/4 and lots 4 and 5 in Section 28, Township 6 North, Range 6 East, Wind River Meridian, Wyoming.
- Smith’s homestead filings (1929–1930) were initially denied but later allowed on appeal; his 1935 final proof described improvements allegedly on the patented tracts.
- In 1942, the United States restored “all undisposed land” within Section 28 to the Northern Arapaho and Shoshone Tribes of the Wind River Indian Reservation.
- In 1963, Smith’s widow conveyed the patented parcels to Foust by warranty deed.
- A 1979 resurvey showed that the principal buildings described in Smith’s final proof were actually located in the SW 1/4 NE 1/4, not in the NE 1/4 SE 1/4 as the patent described.
- The SW 1/4 NE 1/4 was within land restored to tribal ownership in 1942 and thus held by the tribes.
- In 1982, Foust sought administrative “patent correction” under FLPMA § 316, 43 U.S.C. § 1746, proposing an exchange of the patented land for roughly equal acreage where the improvements actually sat.
- The Bureau of Land Management approved the request; the tribes appealed to the Interior Board of Land Appeals (IBLA), which reversed.

## Issues

1. Whether 43 U.S.C. § 1746 authorizes correction of a federal patent to convey land that was not open to entry at the time of the original patent and is now tribal land.
2. Whether the mislocation of improvements relative to the patent description constitutes a correctable “mistake of fact” under § 1746.
3. Whether the IBLA’s denial of the correction application was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under the Administrative Procedure Act.

## Decision

- The Tenth Circuit affirmed the district court’s judgment upholding the IBLA’s decision.
- The court held that § 1746 did not permit use of a patent correction to convey the SW 1/4 NE 1/4 because it was not open to entry when the original patents issued and a correction could not divest the tribes of restored land.
- The court agreed that Foust failed to show a correctable “mistake of fact” in the patent instrument or the government’s intended conveyance.
- Applying APA review, the court concluded the IBLA’s interpretation and application of § 1746 were reasonable and supported by the record.

## Legal Principles

- Patent-correction authority under 43 U.S.C. § 1746 is limited to eliminating errors consistent with lawful land disposition; it cannot be used to convey land that was not legally available for entry at the time of the original patent.
- A correctable “mistake of fact” under § 1746 generally requires an error in the patent’s description or the government’s records reflecting what the United States intended to convey, not a private party’s mistaken belief about the location of improvements.
- Administrative denials of patent corrections are reviewed under the APA’s “arbitrary or capricious” standard; a reasonable agency interpretation of an ambiguous statute it administers is entitled to deference.

## Conclusion

The court upheld the IBLA’s refusal to “correct” a homestead-era patent to reach a different tract where improvements were later discovered to sit, concluding that § 1746 does not authorize transferring land that was not open to entry when patented and cannot be used to remove reservation land restored to tribes.


Foust v. Lujan, 942 F.2d 712 (10th Cir. 1991), cert. denied, 503 U.S. 984 (1992)