Even before Washington became a state in 1889, Puget Sound beaches had been exploited as log dumps, farmed for shellfish, occupied as homesites and enjoyed for recreation. But today, after 131 years of statehood, residents of this region still don’t know if they have a legal right to walk across a privately owned beach at low tide.
That’s because neither the Washington State Supreme Court nor the Legislature has ever clearly spelled out the limits of the Public Trust Doctrine — an ancient legal principle that provides for common citizens to retain certain rights to themselves, regardless of property ownership. For example, the right of navigation allows anyone to float a boat practically anywhere in Puget Sound, even directly over private property.
But what if someone decides to step out of the boat into shallow water and stand on the bottom? That’s where things become murky. If the underlying property is privately owned tidelands, the legality of that act remains subject to debate among legal scholars. The same reasoning applies to citizens who walk across the wet portions of a beach at low tide.
For the past 40 years, I’ve been intrigued with the nature and application of the Public Trust Doctrine, which has been invoked by a number of states to grant people the right to walk across privately owned tidelands. Josh Farley, a longtime friend and former colleague at the Kitsap Sun, recently reminded me that I haven’t written about this issue for 10 years. He wondered if anything has changed.
Let me refer you to the article I wrote for the Kitsap Sun in 2010 featuring the story of Bruce Barcott, an outdoors writer who hiked the entire shoreline of Bainbridge Island at low tide, knowing full well that some property owners would probably object.
“I only ran into one fellow who gave me a hard time about his property right,” Bruce told me at the time. “A number of homeowners I met actually believed that the shore and tideland was public property.”
The issue of public versus private rights on Puget Sound beaches continues to simmer without resolution, according to Joe Panesko, senior counsel in the Washington State Office of the Attorney General who has done extensive research on the Public Trust Doctrine, including a treatise for the Washington State Bar Association.
“It is a fascinating topic,” Joe told me. “Thousands of law review articles have been written advocating what it should mean.”
As the legal adviser to the Washington Department of Fish and Wildlife, Joe has seen conflicts over whether the public has the right to hunt for ducks on tidelands owned by a duck-hunting club and disputes about whether commercial fishers have the right to use beach seines along the shore.
When Fish and Wildlife enforcement officers are called, he said, they are often in no position to resolve the conflicts. Uncertainty over the Public Trust Doctrine is one thing, but the issues are further complicated by property lines and tidal boundaries in a dynamic environment. The same dilemma faces a sheriff’s deputy called by a property owner to arrest a “trespasser” walking on the beach.
Through the years, I’ve talked to many property owners who don’t mind people walking on their beach as long as the walker shows respect for the environment and any physical improvements above the high-tide line. Problems come into play when beach walkers push beyond any reasonable limits, such as by walking up onto people’s lawns.
WDFW recently closed the parking lot at the future Point No Point boat launch near Hansville on the Kitsap Peninsula. The number of people accessing the local beaches from that area had gotten out of hand, officials said, and some people were walking around above the high tide line. Such folks could be considered trespassers even under a liberal interpretation of the Public Trust Doctrine. Check out the story by Jessie Darland, Kitsap Sun, July 11.
It seems that little has changed since I wrote about this issue 10 years ago. The story received more than 75 comments from people fired up on both sides of the issue. As a result, I followed the story with a blog post discussing related issues.
Much of the conflict in Puget Sound grew out of the Legislature’s divesting the state of what were once public tidelands. Public lands became private under varying standards, sometimes for the purpose of shellfish farming.
In contrast, most of the tidelands in Oregon remain in public ownership. But even where the tidelands are privately owned, the Oregon Legislature has declared that the Public Trust Doctrine allows people to cross private property, provided they cause no damage. In California, the courts have extended public trust rights to include protection of natural resources.
In Washington state, either the courts or the Legislature could define the limits of the Public Trust Doctrine, Joe Panesko said. Even though the doctrine is a “common-law” principal handed down through the ages, nothing in the Washington State Constitution prohibits the Legislature from clearing up the controversy. Without action from the Legislature, however, the courts could eventually define the limits of public access.
In a 2015 case, Havens v. Cousins (PDF 5.8 mb), an Island County Superior Court Judge tried to untangle the long history of Washington state case law in a dispute about whether a commercial smelt fisherman could walk upon private tidelands — or even uplands — to manage his net in a legally licensed fishery.
“The upshot of all this,” the judge concluded in his oral ruling, “is that the plaintiffs (property owners) have the right to exclude the defendants (fishermen) from entering onto their second-class tidelands at such a time as they are not covered by the waters of the state. But when they are covered by water, the defendants may enter onto such water even though the water is located above the tidelands.
“However, the defendants may not touch the actual tidelands, that is to say the land itself, even though the land may be covered by water. Thus, for example, the defendants may not drag nets over the tidelands, nor can they drop anchor onto the plaintiffs’ tidelands. All the defendants may do is fish in navigable waters. They may not touch the actual tidelands themselves.”
The judge’s reasoning is spelled out clearly. It would seem this case might establish clear limits to the Public Trust Doctrine in favor of private property owners. But — and this is the key — the lawsuit was not appealed to a higher court, so it provides no legal application for anyone but the parties to the case.
So, when it comes to resolving any presumed public right to walk on the beach, I can’t say that we’ve gotten a whole lot closer over the past 131 years.