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.
Chris – Thanks for the updated article on this topic, which has been of interest to me for several decades. I am retired from the Department of Fish and Wildlife and spent my career working to protect and restore Puget Sound nearshore habitats. That of course necessitated walking along beaches owned by a wide variety of characters of differing attitudes regarding my “use” of their beach. In addition, for nearly 30 years I have lived within a couple blocks of Puget Sound. I frequently walk to our local park (Burfoot) and then proceed north along the beach to the boatramp at Boston Harbor. In all those years of walking that stretch of beach there has only been one occasion that I can remember where a landowner told me to get off his private beach. Most of the homeowners just wave and smile (of course, several probably recognize me by now). But as I am walking this stretch of beach I sometimes wonder how I would respond to an irate landowner. My thought has always been to bring up the Public Trust Doctrine. But as you point out in your article there isn’t any good case law currently, so I’m not sure how I would phrase my argument beyond mentioning the PTD. I seem to remember someone, probably from Ecology, years ago mentioning that we have the right to walk on private beaches between two public access points. In my case that would be Burfoot Park and the WDFW boatramp at Boston Harbor. But I suspect that this “right” was just speculation not actual case law. Have you heard mention of this concept?
I really enjoyed reading your article as it reminded me of the complexities of this issue. It is amazing, however, that seemingly nothing much has changed since I first learned about the PTD in my early days at WDFW (circa 1988).
Thanks again for the insightful article – Randy Carman
The issue of walking from one public access point to another is as murky as walking down the beach and then returning to the same access, according to Joe Panesko, the assistant a.g. who is probably the state’s leading authority on the issue. I asked Joe this question while preparing this blog post.
The question is somewhat related to the situation at Point No Point, where one access is owned by the state and the other by the county. In that case, so many people were using the state access (a proposed boat launch) that the parking lot was closed in an effort to reduce the number of beach walkers — including some who were causing problems for property owners.
I was under the impression that the property owner owns the part of the beach above 0 mean tide . It is my opinion that the property owner have the right to allow or not allow persons above the mean tide
Property owners need to check their deeds to see if they own tidelands as part of their property. They might need a survey to identify the exact location of their property lines. Some shoreline residents own some or all of the tidelands; others don’t. The question related to the public trust doctrine is: To what extent can people use property they don’t own as a result of legal rights retained for the public’s benefit.
Alfred, if the upland owner does own the tidelands, then it’s to either mean low, extreme low or includes permanently submerged lands.
When the state started selling tidelands it was originally to mean low. Tidelands sold between 1890 and 1985 were surveyed by the buyer using metes and bounds description that fixed the line. After 1895 to 1911 it was changed in statute to eliminate the need for a survey and the buyer owned to mean low tide.
In 1911 they changed to selling to extreme low. However, tideland owners could purchase the strip of land between mean low and extreme low.
In 1895 the state enacted the Callow and Bush Acts that sold state aquatic land (land permanently submerged) to encourage and facilitate the cultivation of oysters and clams.
Just another attempt here to contribute some historical context to the current discussion. My family acquired the 60 acres that is now the Kitsap County “Anderson Point Park” on the shoreline about a mile north of Olalla in 1901. 2000+ front feet of near-virgin waterfront. It was always our understanding, and something we attempted to enforce, that our property rights extended to the “mean low tide” line. Which we interpreted to be somewhere around a plus-1 or plus-2 low tide line. We were friendly with our neighbors and did not object (well, “seldom objected”) when locals brought their horses or kids down our road to enjoy the shore for the day. We actually also encouraged other neighbors, north and south, to feel that they had free right-of-way to cross “our” tidelands whenever they wished. Which most of them happily reciprocated. (They had the very same deed stipulations, after all.) Sometime during the 1960s and 1970s, though, a lot of these property regulations changed — along with the Shoreline Management Act — and we Andersons discovered that the new updated deeds many of our new neighbors now possessed, gave them property rights up to only the “mean HIGH tide” line. The uncertainty that resulted created a lot of conflict. We remained absolutely confident that our land rights continued to extend to the low tide line, but some of our newer neighbors, mostly unaware, began to transgress with a cavalier sense of impunity. That’s when our No Trespassing signs began to go up. “Private Property. Please Do Not Dig Clams or Start Fires.” It was not that unpleasant. There was not a lot of animus or nasty verbiage or threats or law suits… but the good times were definitely over. We put up our 60 acres for sale during the 1980s. The high-tide-line vs. low-tide-line paradox continued to trouble all negotiations. Those tideland conflicts persist even today whenever my 70-year-old brother and I simply attempt to visit and do a private pilgrimage to Our Beach without being confronted and intimidated.
I have property directly next to Anderson Point Park on Millihanna Rd. You and your brother would be welcome at any time. I’d love to hear about the history of the Anderson family and the home that was located near the beach.
Daniel Koch
8323 SE Millihanna Rd
Olalla, WA 98359
Regardless of the legality, you sound very entitled. Instead of trying to keep people off of your beach, you could always, y’know, get a job, or a hobby or something.
It sounds like you are the one who is entitled. Why don’t you get a good job, one that pays enough to buy your own waterfront property and then, perhaps then, you will understand. When people want to use other people’s property, they are the ones that are entitled. You probably got this from your WASP heritage.
Great article! Question: If I own a small motorboat in the Salish Sea, and drop anchor 70 meters offshore along privately owned land, then proceed to paddle a kayak at peak high tide (with no surf) adjacent the land, but never set foot on touch the land with my paddle, is that in my right? In other words, if i am on a surf watercraft (non motorized) immediately adjacent to the beach at high tide, but never touch the beach itself, is that in my right? Or, because it is high tide, have i now floated above the mean low tide mark and am now considered a trespasser? At what point, literally, does the adage “nobody can own the ocean” dry up?
Are you aware of any group or organization actively advocating for clarification of the Public Trust Doctrine as it relates to the public’s ability to walk on Washington beaches? I have lived in Kitsap County for over 20 years and the change has been unsettling. When we moved here, we routinely walked from Eglon to Point No Point and back during low tide. There was never any confrontation or unpleasantness (Most of the owners are high bluff). I have quit doing this walk as the homeowners actively accost us (I’m almost 70) and make it extremely uncomfortable. I plan to retire in the next couple years and have thought a post retirement project to let people know their rights and responsibilities while walking on tidal land might be rewarding.
A disgusting law that is clearly seeded in the racist intention of keeping Native Americans off of a primary food source. Anyone that wants to “own the beach” should sod off and move to the east coast.
Right, Ray!
It is an outrage anyway to even say I own the land when one actually belongs to it. But going back to the main point of the legality of walking along the Puget Sound shoreline, and after reading the different input in this chat, i have decided to keep walking across at low tide until the law says it is illegal.
Can anyone confirm that it is right now NOT illegal ?
It sure is confusing. I like the idea of people having access to salt water beaches everywhere as long as they respect the rights of the people with waterfront property. However, we live in a very materialistic and capitalistic world and some people seem to obsess about their “property rights.”
I live on Hood Canal waterfront, and my property deed (due to a Pope and Talbot error when they first sold it in the 1950’s) extends down to the extreme low tide mark. Hikers I don’t mind; what I do mind is shellfish harvesters who assume that the tidelands are public property and they can go wild and crazy at low tide without even having a state shellfish license. If I encounter the harvesters, I am civil and ask “Of what tribe are you a member?”, and explain what private tideland rights are if I get a blank stare back. Otherwise, I am a witness to illegal shellfish theft of geoduck, oysters, and clams. If they do have a state shellfish license, I refer them to the public tidelands nearby (which includes about half of Hood Canal tidelands) and wish them happy legal clamming.