A particularly raucous beach party attended by a number of students from the Northwest School of Wooden Boat Building (those wild and crazy wooden boat builders!) this winter apparently raised the ire of a local tideland owner, and with it, a lot of questions in my mind about public beach access in Washington state. It’s not an idle question for cruisers; whether it’s time to dinghy the dog ashore for a much needed bathroom break, or just an insatiable urge to get out and stretch the legs in a place where one can walk more than thirty feet in a straight line, almost all of us will at some point find ourselves with a need to go ashore someplace that isn’t necessarily a designated park or public beach. There is a lot of information and misinformation floating around on the Internet and by word of mouth, and it’s not at all clear to me even after digging around the matter what the law actually is. So, this is post will be about equal parts sharing what I have found, and asking if anyone else has better or more official information on the subject.
It’s beyond dispute that a significant portion of Washington state’s tidelands are privately owned (by tidelands, I mean the land between the normal low and the mean high tidelines). Both prior to and after gaining statehood, the territory and then state of Washington was granted “title and dominion” over all shore and tidelands, and promptly set about selling them off to the highest bidder. The practice continued until 1971, by which point 60 percent of tidelands were privately owned, a figure that remains roughly accurate today.
What is less clear is that private ownership of a tideland may not encompass all the same rights as private ownership of uplands. Under an ancient principle called the Public Trust Doctrine, courts have long held that the state retains an easement of sorts over tidelands and navigable waters to allow public passage and fishing. They have also held that this is a principle that cannot be abolished, regardless of the wording of the instrument of sale or the understanding of the purchaser.
But because this is a principle of common law (and, interestingly, because it originates in British common law, it has implications north of the border as well, Canada broadly sharing that legal tradition with us) rather than an articulated point of state law, it is left up to the courts to determine what it means exactly. While a 1987 Washington State Supreme Court case, Caminti v. Boyle, pretty well establishes that it is active and applicable in our state, the case was not specifically about public access and that right was not specifically affirmed. Subsequent appellate court cases apparently (this is an excerpt of a longer Lexis paper; I’m interested in this stuff, but not enough to spring for the $12 to find out what the actual document says!) have distinguished between “use” of private tideland on foot and afloat; you could dinghy over a piece of land at high tide and fish there, perhaps, but on the same land at low tide you would be trespassing on foot.
The most cogent opinion on the public right to access tideland I could find is in a legal analysis on the Public Trust Doctrine and its effect on Coastal Zone Managment, a dry and ecologically focused whitepaper available from the Department of Ecology. Although the paper is primarily about the implications of the doctrine for regulatory purposes, it does deign to briefly discuss public rights to walk and/or harvest shellfish on private tideland. Unfortunately, what it concludes is that while it is likely that the doctrine would allow public passage and other common uses of privately owned tidelands, the matter has never been tested before the State Supreme Court and remains unsettled.
This is confusing not only for boaters, fishers, and property owners, but for law enforcement, who may well arrest you for trespassing on a private beach, should it come to that. State employees have been expelled by shotgun-toting property owners, and have acknowledged the owner’s right to expel them, though that right is in fact far from clear. The waters are murky up near the high tide line and officials have better things to do than plumb deeply into the implications of common law and various court decisions… the result being that despite their authority, they may have as little clue as the rest of us as to what’s legal and what’s not.
If the answer to “what is legal” is “who knows?” then we’re left with the more general question of “what is right?” My sense is that raucous beach parties and bonfires on privately owned tidelands are probably not (sorry boat school guys!) but if Fido needs a head call or you need a few clams for supper or even just feel like going ashore and poking around in a fascinating looking set of tidepools, then that should be just fine. It’s not worth arguing with the property owner unless you have a boatload of money and a good lawyer and feel like settling the question once and for all, but the more respectful we are in general the less likely it is to need settling in the first place. Indeed, I get the sense that it rarely comes up as it is… beaches have figured prominently in our views for the past couple years and unless we happen to be anchored adjacent to an established park of some sort, we rarely see people on them. That’s a pity, because the tidelands are some of our most fascinating and accessible public places. Take some time and go ashore!
