For 30 years, I’ve wondered about the Public Trust Doctrine and whether you and I have a right to walk across private tidelands throughout the Puget Sound area.
On a few occasions, I’ve written about the general principles of the Public Trust Doctrine, but last week I dug a bit deeper and came up with a story published in Tuesday’s Kitsap Sun.
I’ve received a lot of nice comments about my balanced approach to the story. That’s much appreciated, given the contentious nature of this subject. As of this writing, the story has received 75 comments from readers. The discussion got so heated at one point that someone asked Kitsap Sun editors to call a halt to the debate. Comments are still coming in, and things have calmed down.
Please take a moment and weigh in with your opinion in the poll over in the right-hand column of this blog. Also, feel free to comment here, or join the discussion on the story itself.
So, do average citizens have the right to walk across someone’s private tidelands? As I explain in the story, this question cannot be answered today, because our state Supreme Court has never ruled on the subject. The Public Trust Doctrine certainly provides for a public right to float across private tidelands in a boat and to take fish and other creatures in conformance with state law.
Shellfish are another issue, however, since the state recognizes that these embedded creatures belong to the property owner in most cases.
The vast majority of waterfront property owners I interviewed for this story said they would not object to someone crossing their tidelands, provided the person does not cause any damage along the way. Some commenters added that people also should not pick up anything on the beach. Now this is another unanswered question for me, and perhaps one of you has the answer: Do beach-walkers or even people in a boat have the right to pick up something that washes in with the tide?
I seem to recall that visitors are not allowed pick up driftwood or other natural items that may be habitat for critters, which are generally protected under state law. But if a man-made item washes ashore, such as a glass float, does the property owner have a greater right to claim the object than someone walking along the beach? I don’t know, but perhaps this is one of these unresolved issues — such as where someone may walk legally.
Assistant Attorney General Joe Panesko, who has been researching the Public Trust Doctrine for an upcoming article, pointed out that some commenters seem confused about where property rights end on the shoreline. It is not a simple issue in Washington state.
As Joe describes it, the state once owned all the tidelands and still owns the vast majority of bedlands, which are below the extreme low-tide mark. Between 1899 and 1911, tidelands sold by the state went from the ordinary high tide line down to the mean low tide line. In 1911, the state changed the definition of tidelands to extend all the way down to extreme low tide.
The state also sold a separate category of lands for the cultivation of oysters under two 1895 laws, the Bush Act and the Callow Act. Most of these lands were identified with legal descriptions that included “metes and bounds” instead of tidal elevations. Perhaps because of imprecise surveys, some of these lands still go down below extreme low tide. (This relates to recent stories about “trespass” by shellfish growers. (See Water Ways, June 24.)
Panesko tells me that a big challenge for tideland owners is that legal descriptions on deeds have become muddled as property has changed hands over the years.
“I’ve seen many current deeds for waterfront properties that include tidelands but fail to articulate the exact tidal boundary of the tidelands,” he wrote in an e-mail. “Also, as your article hints at, establishing the exact location of tidal boundaries on the beach really does require the sophisticated services of a competent surveyor. GPS devices don’t help much with regard to tidal elevations.”
While the Washington State Supreme Court has not defined the limits of the Public Trust Doctrine, courts in other states continue to address the issue. In some states, water resources and even habitat for wildlife are being included as holdings in “public trust.”
The case for beach-walking was nip and tuck for the shores of the Great Lakes in Michigan as recently as 2005. In Glass v. Goeckel, property rights advocates were delighted in 2004, when the Michigan Court of Appeals ruled that people could not walk along the beach unless their feet were in the water. (See Michigan Land Institute, July 27, 2004.). But about a year later, Michigan residents were back strolling the beach on dry land. (See MLI, Aug. 2, 2005.)
It is, as they say, an evolving matter of law.