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!
I spent some time on Henry Island, a private island, and my host let me know that he had to periodically fend off kayakers who wanted to stop on the beach to take a pee. There has got to be a better way.
I had not even considered the plight of the long-distance kayaker. Carry a jug? Not sure that falls into “public passage” in even the more liberal definitions. On the other hand, they can’t exactly unzip and cut loose over the stern rail… quite a problem! Another checkmark in the “Sailing” column if you ask me.
Interestingly, while I was researching all this, I read some of the laws as they have been expressed in other states, and a not uncommon theme is the explicit restriction of “indecent” activities… presumably a hedge to prevent nude sunbathing and other offenses to the American psyche. Public urination would probably fall into the same category.
Let me see if I understand the logic. If I’m driving down a road in my car and my dog needs to do their business I can simply pull over and use your front yard. And if I want to wander around and stretch my legs that’s okay to. Private is private whether it backs up to water or a street. I don’t know why there is a growing idea in this is society of “what’s mine is mine and what’s your’s is mine.” There is no shortage of places to go by boat that are public. Just because you didn’t plan ahead doesn’t give you the right to trespass. And no I don’t own water front property.
I guess the fundamental misconception there, Ed (and it’s only one of many that plague this debate), is that “private is private whether it backs up to water or a street.” It’s not, legally, the same thing, nor will wishing make it so. It’s a beautiful and simple statement, but it’s but the work of a moment to demonstrate that it’s just not how law and society function, whether in the form of public easements on tidelands or sidewalks, or building codes or any of a thousand other “takings” where the government holds sway over our “private” property. Whether that system is right or wrong is a debate for some other sort of blog, but I don’t think you can argue that it’s not the system we actually have right now. I know plenty of folks have walked their dogs along my sidewalk, when I still had a sidewalk, and I figured as long as they picked up after it that it probably didn’t constitute trespassing.
Some people might also dispute your assertion that “there is no shortage of places to go by boat that are public” as well… as noted above, less than half of the shoreline in the state is publicly owned, and some large fraction of that consists of bluffs, restricted federal or tribal lands, or otherwise un-landable terrain that no one ever found worthwhile enough to make a bid on back when it was for sale.
Your arguing apples and oranges here Scott. The sidewalk out in front of your house is not “your” sidewalk. It is not considered private.
Secondly my point, which you ignore, is the user’s responsibility. Again, if I’m in my car and my dog needs to to their business, I would never pull up in from of someone’s home. I would look for an appropriate area.
Your statement that “some people may dispute your assertion that “their is no shortage of places” also goes to my point. It’s about personal responsibility. I boat with my two dogs all over Puget Sound and points north and have never used someone’s private land. Why? I plan ahead. I don’t use someone’s backyard simply because it’s convenient. I still don’t understand this concept of yours that if it backs up to the water there is no right to privacy and private property.
We have a different view on this, I guess I’m just from a different generation that respected other people’s rights and privacy.
Despite your inappropriate and inapplicable dig, I don’t think we’re actually very far apart on this.
It is accurate for me to rewrite the sentence in your first paragraph this way: “The beach out in front of your house is not ‘your’ beach. It is not considered private.” Tidelands, both legally and in common use, are a lot more like sidewalks than front yards, and not surprisingly, common law seems to treat them similarly. When you say that the sidewalk is “not considered private” I assume you mean in the sense that the public is allowed there. It is certainly private in the sense that you own it; check your last property tax statement, I’ll wager you paid taxes on it just like on the rest of your parcel. And if you fail to maintain it and someone trips and falls out there, it’s not the public that is going to get sued, it’s you. That is your private property all the way out to the street. But there is a public easement on it, so I can go walk across your land if I like (with or without a dog) and you have to permit that.
The tidelands share roughly the same status for roughly the same reason. You’re a boater, do you avoid motoring or sailing over submerged land that may be privately owned? I won’t answer for you, but I don’t know anyone who does. And you don’t need to, for the same reason that you don’t have to not walk on sidewalks on privately owned land… there is a public easement across those passages to allow free navigation, afoot or afloat.
So, as a land owner, I am in complete agreement with you that I don’t want someone bringing their dog over to poop on my front porch. But that is the apples and oranges in this debate, because the sidewalk is not the front yard here, and the tideland is both legally and, I think, ethically, a lot more like the sidewalk than the front yard. I salute you if you never allow your pooch to do his business near my sidewalks, but I think you are in the minority on that judging by what I’ve seen in my neighborhood. I think it’s reasonable to ask people to pack it out. I don’t think it’s a disrespectful of my rights or privacy when it happens.
“are a lot more like sidewalks than front yards, ” No they are not, the sidewalk is referred to as a “right of way” and legally the city/state etc have a right to use it and modify as they see fit, they installed the sidewalk. Tide lands are NOT the same legally. You are skirting legal wording and are reaching for “ancient principle” to make your case not current law.
I think this discussion has run it’s course. Again my point is simply that boaters, and others, should respect the rights and privacy of land owners.
“…my point is simply that boaters, and others, should respect the rights and privacy of land owners.”
We can agree on that at least. As for the rest, I think your perspective is informed by innaccurate facts and would encourage you to look at some of the linked decisions and briefs above and suggest that the “ancient principle” has been current law since at least 1987, and the city and state have been treating tidelands much the same as sidewalks with respect to their control and access since the passage of the Shoreline Managment Act in the early seventies.
Interesting question. I own tide lands at Warm Beach. I also boat. I am NOT an attorney. But I have tried to answer the question, Can I exclude people walking over my tidelands?
I conclude: Probably not.
First, there is NO STATE SUPREME COURT DECISION directly on point. None. Second, the State has adopted Federal Common Law
as its standard, which includes Navigational Servitude as part of the Public Trust Doctrine.
Quoting:
Reading below from The Washington State Constitution: A Reference Guide, by Robert F. Utter and Hugh D. Spitzer:
The most recent and potentially the most far-reaching judicial pronouncement on tidelands have centered on the “Public Trust” doctrine…according to the Washington Court the doctrine divides the states original ownership of tidelands and consists of two distinct aspects: A private property interest and a public property interest. While the State has absolute power to convey the private property interest in tidelands, the State has no power to transfer the publics interest (Caminiti v. Boyle, 1987). The Washington Court has refused to fully define the public authority interest, but among those public interests protected by the trust, it has expressly included rights to navigation, fishing, boating, swimming, and “other recreational purposes”, and has implicitly included environmental values (Caminiti v Boyle, 1987; Orion Corp v State, 1987).
Close quote.
Thus, where water can go – must go – a boat may navigate, a fish
may swim, as well as a person, and a person may walk.
Mine is not a popular opinion. Most people only view “property rights” as absolutes. People having a picnic and a beach fire are generally on your UPLANDS – which end ( or begin) at the mean high water line, about a 6.5 foot tide.Logs on a beach are typically above this line, on the Uplands. Legally, you can exclude behavior that is illegal, or a nuisance.
As to clams, oysters, etc.,the State Supreme Court has held that those are the “fruits of the land”, belong to the tideland owner, and even on public shores, are governed by regulations. Subject, of course, to the 1855 Treaty of Point Elliot…..
Ross Kane
Warm Beach
Ross, thanks for sharing that! All useful information for both property owners and boaters… particularly with respect to shellfishing, which I suspect represents no small part of the debate in most instances.
Something that I had found that I should have mentioned earlier, regarding shellfish, is an interesting tool from the state Department of Fish and Wildlife that approaches the issue from the opposite angle, providing a directory of beaches that are definitely publicly accessible for that purpose:
http://wdfw.wa.gov/fishing/shellfish/
So, if you want to be absolutely sure you are in the clear, you can check there for a clamming destination and avoid the entire controversy.
Years ago there was a book written for kayakers listing all the public road ends where you could land without trespassing. Can’t remember what it was called….
Thank you for this careful initial analysis, Scott. As the proud new owner of a Wharram Tiki 21 catamaran — http://econsicence.org/tiki — that is easy to beach, I’m very interested in this issue. It would be very valuable to be able to access the intertidal zone for stretching the legs and even placing a stern anchor… I hope we move towards clarity (with or without additional help from the State supreme court), but the more I read, the more confused I get…
Some personal background on the inspiring public access advocate Benella Caminiti — http://www.celp.org/water/celpaward/Benella_Caminiti.html
This 32-page PDF from a UW law PhD is called “Enjoys Long Walks on the Beach,” is quite well-written, and suggests that a stern anchor placed in the intertidal area “up to and including the line of ordinary high tide” would be a legal public use of private tidelands in that the anchor enables my use of the public tidewaters.
https://digital.lib.washington.edu/dspace-law/handle/1773.1/280
And then there’s Dunagan’s Feb 2011 poll that suggests we’re unevenly split on the issue — http://pugetsoundblogs.com/waterways/2011/02/10/legal-questions-abound-for-beach-walking-driving/
Where can we find more clarity? Or is it time to just start walking the tidelands looking for the right case to take to the supreme court at last?
Scott, thank you for the links! The UW PDF is particularly interesting, as it is the one I was too cheap to buy from Lexis… should have known there was a public copy somewhere.
Unfortunately, although the paper does suggest that access is legal, the most recent decision it cites (Bainbridge Island vs. Brennan) doesn’t support the contention. Of course, it’s not a decision explicitly on this question, which makes it as much a matter of implication and interpretation as all the other legal decisions I have come across.
Equally unfortunately, I have come to the conclusion that there probably never will be a clear answer on this. It’s extremely unlikely that anyone will, as you say, walk the tidelands looking to get arrested and take a case to the Supreme Court solely on this issue. People tend to make a stand in court over weightier economic matters, as with the Brennan case. The questions in those cases are almost never going to align with the question of simple recreational pedestrian access, so the decisions will never strictly apply.
I think it’s unfortunate that we have to look to the courts for a solution, really. Sidewalks are not a perfect analogy for tidelands, but they represent a clearly working system for public right-of-way on private land that everyone is familiar with. It seems silly to re-argue the principles involved. So, personally at least, I’m going to try to hold to that standard: I’ll assume access to private tidelands, but treat them as respectfully as if they were someone’s sidewalk or parking strip. If someone else wants to go to court over it, I’ll watch! Otherwise, I’ll leave if asked, but politely suggest the owners take a closer look at the legal standing they assume they have. I suspect most want to do the right thing but simply have never looked into it.