Beach-walkers are still waiting for a legal answer

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.

98 thoughts on “Beach-walkers are still waiting for a legal answer

  1. I did have time to read the articles…thank you!

    “…despite a state law requiring new bulkheads to be designed so they won’t hurt fish habitat, damage continues.

    “In other words,” Tim Quinn, Fish and Wildlife’s chief habitat scientist, told state lawmakers at a hearing last November, “we’re not doing a very good job.”…”

    “…Tribal officials say whatever the political difficulties, restoring Puget Sound shorelines and the fish that depend on them isn’t a choice. It’s an obligation under treaties signed before Washington was a state. David Troutt with the Nisqually Tribe directed his remarks to government officials at the recent Puget Sound Partnership meeting.

    Troutt: “Part of the deal is we wouldn’t shoot all of you, and we’d be able to fish. We haven’t shot a lot of you in a long time, and we’re not fishing, so our end of the deal isn’t being held up here. We need to have that deal recognized, that this really is something that you guaranteed us, and we need to see that guarantee fulfilled.”…”

    Thank you beemom. Your comments and others prove the ultimate in blogging…educating the public and each other…is happening right here, right now.

    I didn’t know the bulkheading was continuing on such a scale.

    mancunianpress said it just right …” Get out and enjoy
    that beach!!…”

    Sharon O’Hara

  2. Sharon,
    you said; “DB, I believed that property owners owned the beach to the low water line and paid taxes accordingly – never the waterways.”
    ———-
    That is where we disagree. The beach, up to and including the high water line is a part of the ocean/waterway and would not exist unless the ocean/waterway was there. As I stated before, I don’t believe anyone owns the ocean and the tidelands are an intricate part of the ocean, so I will not be using a canoe or kayak simply to avoid stepping on the beach in the foreseeable future.

    As far as your take on bulkheads, most of the Illegal bulkheads were built before there was a good understanding of the effect they have on the shoreline and the marine environment as a whole. I believe those illegal bulkheads should be removed, just as the Dams on the Elwha are being removed over the next few years, to correct the wrong that was done when they were built.

  3. Beemom,
    I agree, it seems we are on the same page.

    I have always believed that the tidelands were a natural resource and are owned by all the people of the State and not just a few individuals, as the Public Trust Doctrine spells out, however, that has yet to be clarified.
    It could be a matter for the courts, or it may be settled with a referendum as it was in Oregon and California.
    I don’t believe tidelands were ever privately owned in Hawaii.

    As for the law here, it is not clearly defined, so I can’t answer you. Even the Law Enforcement Agencies can’t answer those questions, and they seem ever more reluctant to get involved with someone peacefully walking the beach. Like you, I also assume the risk, and will continue to walk along our ocean.

    I agree with you that bulkheads and armoring do far more damage than people strolling on the beach and I invite anyone who disagrees to simply do a bit of research and learn the facts.

    As for your suggestion about the cost and time of researching deeds, I really don’t think it will go that way. Most likely the issue will be decided as in other States with a Referendum and a vote of the people, and will be continually be pushed in that direction by the very people who do not want to see that change, the irate “beach owners”, who yell and throw rocks at peaceful walkers who are doing nothing but enjoying the Sea.

    Just because things were legally done in the past does not mean they will stand up to today’s scrutiny. Take for instance, the building of some Dams. When they were built, the detrimental effect they would have were not well understood , but now there is an ongoing effort to remove the offending Dams and free the rivers once again. Case in point, the Elwha Dams that will be removed starting in 2011.

    I don’t know the intricate workings of the Bills that freed the beaches in OR and CA, but they have indeed clarified the public ownership of the tidelands. I believe there is still some ongoing legal issues in California with a few stretches of coastal properties, but there is an ongoing effort by the organization CoastWalk and others to create public walking paths linking all the beaches in that state so that one could walk the entire coastline. It will be great when Washington can boast the same thing!

    When the issue finally comes up in a referendum, you can be assured I will volunteer to collect signatures and actively help wherever I can.

    Thanks for the insight Beemom, it’s been a good discussion, but I think you are right, it’s time to take a walk!

  4. What illegal bulkheads are you talking about? Are you suggesting that folks who legitimately put in bulkheads fifty years ago did so illegally and they must be ripped out?
    Horsepucky.

    Such an act seems like lunecy when according to the above recommended article…our own GOVERNMENT is permitting new bulkheads TODAY!

    Furthermore, why do you compare the harm done to beaches from bulkheads v beachwalkers?
    They are two seperate issues.

    If you think your beach walkers cause little harm, talk with folks from the Forest Service. Ask what they think of hikers loving our mountain and fragile areas to death? Ask about the erosion caused by cutting switchbacks…get educated about the public destruction of many of our tender mountain areas….no, not on purpose.

    One walker is nothing, thousands moviing along the same path is quite another thing.

  5. Soft bank Shoreline Protection vs. Rock/Concrete Bulk heading.

    Article suggesting bulk heading permitted today is soft shoreline protection, not concrete armor or huge boulder/rock armor type bulkheads as in past generations.

    Harm caused by walking on beaches vs. Driving Vehicles.

    Tidal action twice, sometimes three times per day erases ‘ALL EVIDENCE’ of movement by humans and even MOST mechanical insults on shorelines.

    To claim that foot traffic is harmful to shoreline Eco-systems like hikers ‘loving’ trails to death in forest systems is purely preposterous. Ask shoreline property owners how much damage they do while driving on the beach at Manchester. Driving in same area with vehicles does crush attachments of barnacles and other species that attach to rocks, but even cars on beaches don’t kill animals residing under the first few inches of the beach. Why else would State and Federal Fish and Wildlife Agencies permit driving in Manchester beaches unless no net harm was occurring? So if cars are allowed, now why would people be forbidden from walking? Next argument please.

  6. Sharon,
    You need to educate yourself on some of the issues you talk about.

    Do a search on Google or search your local Library about the damage bulkheads are causing around the sound. There’s a wealth of information out there.
    As far as tearing down the type of bulkheads that are causing the most damage, that may come to pass someday. After all, if they can tear down a Dam to reverse the damage done over many years, why not bulkheads?

    As for walking down trails on the mountains, and walking on beaches, the forest service encourages people to do so, after all, they are the ones that build many of the trails and campsites we have here in Washington. Why would they build them, then discourage people from using them? Doesn’t make sense.

  7. You guys can believe all you want that the sky is green, but that does not make it so. You can “vote” all you want that you should be able to turn invisible and fly, but your votes will not change the laws of physics. The fact is, beach front owners were sold the tidelands to the low tide line. What you believe or wish or think is just is entirely irrelevant. What you think about somebody’s bulkhead is equally irrelevant.

    I might think I have the right to pick food off your plate if I spied you in a restaurant, but I suspect you would have a differing opinion about that.

    Beach front owners own the tidelands in the state of Washington. Deal with it. It does not matter what you think is right or fair.

  8. “Ask shoreline property owners how much damage they do while driving on the beach at Manchester.”

    I did not know people drove on the beaches around here … amazing.

    I think of our beaches and oceans and waterways, mountains and wildlife – our creatures – as treasures to enjoy and protect.

  9. To Whom it may entertain.

    I own tidelands to extreme mean low. I enforce my rights and choose to put my energy in happy things like sharing what I have since I believe it is a privilege to own part of the beach. It is not worth getting angry either way on any of these discussions. It is not attractive or to hear someone or for that matter oneself lecture on the rule of law on beaches or other legalese crap. I am also a paralegal.. but that isn’t any big deal either. Laws change. The voting is an indicator of opinions.

    It is funny you’d say I am a doormat (in a prior post) as a NAVET I think I might have spun up other Vets. Sorry. And to those treading/transmitting/resting on my deeded tidelands, enjoy but please don’t harm the critters. Take what you can eat (watch the red tide and health warnings please) and if you steal my “other” worldly possessions – then we have a problem. And for whomever out there thinks I am a doormat, please think that precept over again. If you knew me, you’d think me conservative and passionate about my liberalism. With tongue in cheek, I say I am glad to hear how the “little people” feel who are not so lucky to have inherited or otherwise acquired shoreline property. My welcome sign is always out to you the most.

  10. Cj,

    I don’t know what world you are living in, but in reality, things change. They changed in California and in Oregon when the beaches were made public once again. I’m sure there were some “CJs” in those States who did not believe it would ever happen there! …And even locally, things changed for the the many families that were displaced when Bremerton decided to tear down the houses some had lived in for generations, just to widen and beautify the entrance to the city. That was done “in the public’s best interest” with the stroke of a pen. So pull your head out of the sand, change is inevitable.

    Washington is the last holdout on the West Coast for private tideland ownership, so I don’t ask myself IF the laws will eventually change, but WHEN.
    Please don’t underestimate the power of the vote.

  11. mancunianpress,

    It seems you understand that the vast majority of people walking on the beach don’t want to harm anyone or anything, they just want to experience the peace and tranquility of the oceans shore.

    To you I say Thanks for sharing.

  12. I do not understand mancunianpress’ continual hostility towards anything I say or why he assumes the things he does about me. My only conclusion can be that he is as crazy as a bedbug.

    Dannyboy, yes, things do change. However, the citizens of the state of Washington were paid for those tidelands. They accepted that money and got to use it for well over a century in many cases. That money built schools, roads, and paid for many other developments and public works. Now it seems a lot of people have changed their minds. They want to keep the money, but they want the tidelands back. I am sorry, but that is unjust and dishonest. I would be very disappointed, for one, to see the citizens of the state of Washington sell their souls and the last of their integrity just so they can walk on beaches that do not belong to them.

  13. I might also add, mancuianpress: why would you trust people who have no integrity — people who reneged on a deal simply because they didn’t like it — people who sold tidelands and kept the money and then demanded the tidelands back anyway — why would you trust such people anywhere near your property? They have already demonstrated that they cannot be trusted with anything. They have already said that if they want something that does not belong to them, why, they have the right to take it away from you without compensating you. If they feel that way about your property rights, why would they not feel that way about your boat motor, your dock, or even your children?

  14. Will someone please answer this insult from this guy? I haven’t the
    need to engage such drivel. Just when the morning was going so well
    I thought – – Oh sigh… : /

  15. Let’s see: you say that I post “drivel.” You accuse of me of hating beach walkers when I have repeatedly told you that I do not. You continually accuse me of being “angry.” And then you say I have insulted you.

  16. CJ,
    I’m not selling my soul. I believe the Ocean belongs to all of us, and the tidelands are an intricate part of the Ocean. I never agreed to sell the tidelands. That happened a long time before we came along, but it doesn’t make it right. Many things were done in the 1800’s that would not be done today.

    I never said the State would “steal” the tidelands. I’m suspect people who paid for the tidelands would be compensated. I’m not sure how, but I suspect either monetarily, or possibly through tax credits on the balance of their property. That would be up to the State through existing State laws.
    Oregon’s Beach Bill addresses this issue in Section 12, and I suspect Washington’s laws would provide for something similar;
    ————-
    Section 12. For purposes of assessment and ad valorem taxation, whenever real property is held subject to a public easement declared a state recreation area by section 2 of this Act, the true cash value of the property shall be taken into consideration for the restricted use imposed on the servient property by the easement.
    ————-
    Read the whole text here; http://www.orgov.org/beachbilltext.html
    —————

    No one here is trying to steal your land.

    This is simply a discussion on public use of the beach. We all have very different views on this subject, but attacking writers here that have differing views and opinions will not solve anything.

    Truth is, You are in the minority here. There are far more people in this State who would back a “Washington Beach Bill”, than oppose one.

  17. I may be in the minority, but that does not make me wrong. There is such a thing as a tyranny of the majority.

    Of course, the state has the right to use its power of eminent domain to condemn any property for public use, so long as the owners of that property are justly compensated for that land at fair market value. Remember, one of the primary reasons for the War for American Independence was that the British monarchy had a habit of seizing the private property of individuals, often for no reason other than that the king did not like those people. People often lost property because they were unjustly accused of being witches and the like.

    Our Founding Fathers recognized this problem and wrote into the Constitution prohibitions against the taking of private property without compensation.

    The problem I have with some of those posting here is that many of them assume that the land is no longer private simply because they personally want to walk on it.

    You think the state had no right to sell those tidelands. Well, the state did it anyway, whether you think they had the right to do it or not. Guess they didn’t ask you. Perhaps you had some great-grandfather around that sold a farm. You weren’t around then, either. Do you have the right to demand the farm back?

    Refusing to honor agreements simply because no one asked you strikes at the very foundations of civilization and the rule of law. If anyone, anytime, can come back a generation later and demand the unraveling of any agreement just because no one asked him or her, then we enter a world where might makes right, where he who has the biggest army of supporters can outmuscle anyone and take anything he pleases. It is a return to barbarism of the worst sort.

    I love to have people walk on my beach and to visit. However, they do not have a right to do so and my beach does not belong to them. Mancunianpress is free to invite anyone he wants to visit his home and his beach and I wish him much enjoyment in the company of those he wishes to associate with. He does not have the right, however, to invite anyone who wishes to visit my home and my beach. I truly believe he fails to understand the distinction between what is his and what belongs to anyone else.

  18. DB: Do I hear what you are saying is compensation in some form would
    maybe/likely forthcoming in the event tidelands are say… quit claimed back to the public? I think.. the sobering truth is.. (and no need for 12th step jokes please) as you’ve more than alluded to, (mind you I am not quoting here) the voters could invite all and any comer(s) onto our tidelands by water, sea, air. Right? They could pen stroke our ‘prized’ ownership out of existence. I have to say this, when I look at initials “DB” I think…. where’s my parachute? and then I think jokes of that aside, it may happen in my lifetime, maybe not – this deeding back of tide lands. And I could live and pay less taxes and love my neighbors and not covet my neighbors lands.. and la-la, la-la, la-la.. forever tax free. And then again my other fallback plan (if things were nasty and intolerable to live here, which I haven’t seen such regression in 45 years living here) then I’d know when to fold em, sell – buy abundant acreage in the forest … and then start guarding/watching my forest for tree thieves. Or. I’d live in some place like “Snug Harbor” which allot of folks refer to as “Slug Harbor” in a funny way. Point is I’d buy a trailer, or boat – travel and see other places. No one deserves to be unhappy with intruders. All enjoy the right to exclude others from owned / leased / properly rented lands. That’s the law, and common sense goes with it. But, I don’t think civilization will come crashing down on our heads of ALL the deeded tidelands in Wn. revert back to the Public. Period.
    Oh, ya – I did renew my KAPO dues for this year as well.. Really! Now I feel less insulted…

  19. CJ,
    You have the right to believe whatever you wish, and I’m sure I’ll never change your way of thinking no more than you can change mine.

    Sometimes we find that agreements that were made between our ancestors and the State may no longer be in the best interest of the People, and need to be revisited.
    Thing is, this IS a Democracy, and when the majority of the people demand that a law be changed, or a wrong be righted, or an agreement be nullified, then it usually is.

    That is the discussion here. The Government will not act by itself, but when directed by the people it must.
    The time to free the tidelands is not here yet, but if and when it arrives, it will be because of Democracy, not in spite of it.

  20. mancunianpress,

    I like the DB thing! Wish I had invested that Million in Microsoft way back then…

    Yes, I was saying that I believe (read personal opinion) that people would be compensated in some way for the tidelands, and yes, they would then be public lands open for anyone to access.
    I doubt your taxes would be less though, as you would still have waterfront property. The taxes on waterfront property in other states that freed the beaches did not drop dramatically, nor did the property values.

    You’re right though, If the beaches were made public Civilization won’t come crashing down. In fact, all would benefit including the current “Owners” as they would also be free to walk the beaches anywhere in the State, and not just on their small piece of the Sound.
    …And really, unless you are next to a park or some other public access, I doubt waterfront owners would see much difference. Maybe a few more walkers, but I doubt they would be inundated with uninvited visitors as most people just walk a short distance down the beach and turn around. …Don’t want to get TOO much exercise, now do we.

  21. DB~ that was worth the re-read and I could live with the taxes. I was just telling the significant precisely what you said re: more open space, less feeling of crowds on shorelines. Kitsap has a caboodle of shorelines. Not likely we’d see the same people more than
    once in any given week. I’d embrace this change, and think the predecessors in interest here would be shocked and dismayed how
    things have progressed with ownership and sharing. Not synonymous obviously. I also think those same predecessors (most if not all) would not have problems sharing in the current state of ownership. What I have seen which is somewhat discouraging is how ‘new’ owners (see new money as well) prize their lands as possessions much as cars and resale items. Each to their own as we know, but that is I think some of the problem with the conflicted views of owning and sharing dirt. Your words provide very nice insight and a glimmer of hope for me, that we can all learn to share and not judge others as much by their differing values on this testy topic. I can hardly wait to see what the reporter does on the next blog… Thanks!

  22. “Refusing to honor agreements simply because no one asked you strikes at the very foundations of civilization and the rule of law. If anyone, anytime, can come back a generation later and demand the unraveling of any agreement just because no one asked him or her, then we enter a world where might makes right, where he who has the biggest army of supporters can outmuscle anyone and take anything he pleases….”

    That’s powerful and I agree.
    I have no qualifications for this discussion other than I was raised on waterfront and my opinions are formed from over 60 years of a close personal relationship with it.

    DB said … “Sometimes we find that agreements that were made between our ancestors and the State may no longer be in the best interest of the People, and need to be revisited….”

    is right. Remember the original tiny lots platted for PO…an area that nowadays is ill suited for such a density. It was fine then, but we’ve grown and developed and know more now about cause and effect of our living affecting our environment…We need to be flexible and reasonable too.

    I’ve never had an interest in beach walking for its own sake. I swam and the beach was used to get the boat to the water. Picking up the rocks to check out the population under them was always interesting…but we stayed on our own beach.

    Few people that I’ve seen and heard about (close friends have waterfront properties in different areas) walk across the beach without picking up oysters, clams, crabs and/or leaving smashed sealife, garbage and their dogs leavings right there on the beach.

    Walking ocean beaches are different than imposing on densely populated beaches.
    If anything other than low tide ownership of the beach does come into being, every summer cabin with front foot of 30 feet +/- will take over the beaches for very little monatary investment.

    I wouldn’t want to live in a place where anyone can bring a bucket to shovel up the finer peagravel of the neighbors beach to scatter in their own yard.
    Sharon O’Hara

  23. I’ve really enjoyed this wide-ranging discussion and appreciate the respect shown here for the most part. I would like to bring this back to what got me going in the first place: that the courts have not completely defined what the public is allowed to do on private beaches.

    The courts do protect property rights when it comes to the ownership of shellfish and other property. It’s also safe to say that disturbing the natural functions of a beach could be considered a violation, unless one has shorelines permit.

    I personally doubt that the state would ever take back ownership of all tidelands, though some areas might be purchased with the consent of an agreeable seller.

    What I still find most intriguing is that courts have not ruled in Washington state whether the government reserved the right for its citizens to walk on private tidelands sold by the state years ago. We know that we can float a boat over private tidelands, but can we step out of the boat into shallow water? Can we walk up to dry land? These are the questions that remain unanswered, as far as I can tell.

    Part of the hangup in this discussion is that some property owners believe that their ownership gives them the right to exclude anyone anytime. We know this is not entirely true, for the courts have ruled that necessity is a defense in a trespass case. In other words, if someone’s life were in danger, then a person could cross private property without facing a trespass charge. Life is clearly more important than property rights.

    Besides the Public Trust Doctrine, other provisions of common law may also prevail, such as prescriptive easements. You may own the land, but if the public has crossed over it for a long enough time, then the owner may not exclude those for whom the easement applies.

  24. A question for all the “public right to walk on private tidelands” people.

    If a road runs through the property separating the uplands from the tidelands, would the right to traverse across the property be satisfied by walking along the road? What would happen if the road were a public deeded trial?

    Why or why not?

    The majority of people seem to walk on the road, as it is easier on their ankles and their dog’s paws. Most of the people that walk just past the road on the beach side are the same people that want to argue about who owns the tidelands. None of the people that want to argue about you owns the beach have never looked at the maps of the property but seem to be basing their opinions on what they think “ought” to be. Ought to be and reality are to different things. The state ought not to have sold off the tidelands – but they did.

    I don’t believe that the issue is one of willingness to share. For me it is the harassment, thief, vandalism that is the problem. After discussing the issue with my son (much wiser than I am), I wrote the county offering to lease the land to them for what ever use they wanted. I also told them not to worry about the financial aspects that I would be willing to accept payment in dollars some time in the future.

    Such an arrangement would mean that what happens on the tide flats would no longer be my problem.

  25. Holy cow!
    I have attempted to walk on many beaches from my kayak and find that many folks object by posting signs and even their irate presence.

    They all say they own the beach, and the waterway.

    I would say Washington State receives a failing grade.

  26. How do you walk on a beach from your kayak? Did anyone get a picture of it?

    Washington State waterfront owners should receive the highest grade for being kind to any kayaker attempting to walk on their beach from his kayak.

  27. So on a scale of 0-10, how do you think Kitsap County(s) waterfront property owners rank in their ‘graciousness’ of accepting beach walkers walking or Kayak paddlers landings on personal private property? Please,
    not to much slapping on ones backs.. it is disingenuous. I note the poll still
    shows 60% favor reasonable access to below mean high tide line. In other words “not in my front yard” NIMFY

  28. I like kayaks and really want to know how you attempt to walk a beach from your kayak. In a high wind with a sail?

    The waterfront owners I knew and know object to the folks who leave garbage and/or damage the sea life. If one of those folks should slip or stumble over slippery wet seaweed or a rock and got hurt who would get sued? The state? The waterfront owner?
    Who is liable?

    Most believe people can legally and reasonably walk the low tide mark.

    I think the ‘poll’ would show a distinct difference of opinion based on whether the voter was a waterfront owner or wannabe walker over private property.

    As Chris pointed out any emergency landings are handled immediately…exactly the case wherever the emergency happened. People help people in need.

  29. I think you are right that the poll results are indeed skewed with non owners supporting access. Attractive nusiances and even the natural elements, all you could name or think of including broken glass is not my liability for those seeking recreation on my private property, that includes tidelands.
    Absolute defense with Wash. St. R.C.W. on landowner liability/immunity so long as your are not involving your lands in commercial for profit uses. Recreational Immunity is what this is.It was brought up in this in prior blog.

    Saying that, anyone at anytime can sue anyone for anything. But, the immunity law will protect you from the case or claim being actionable and costing you your house, home, most important feeling of well-being and safety from fear of colorful claim and or lawsuit against you.

    You don’t have enforce your rights of ownership to be protected by State Law! This is a straw man argument used by ‘some’ landowners to justify discriminate enforcement of rights and deter the general public from making access. Be more concerned about walkers on your beach developing prescriptive rights to walk across. Ten years of uninterrupted use (with about four other elements) can make a pretty colorful claim to them using without your permission.. EVER AGAIN!!

  30. I once surprised two fellows on my property, another time, another place walking nw along a semi path in the woods se of the house. The fellow on the far side dropped his right hand but not before I saw the handgun. I pretended I didn’t see it and yelled to ask if they were lost. My dogs weren’t happy with the strangers on the property and we pointed the way to the driveway going up to the road. I didn’t point out we were at the end of the road and nothing but solid trees and brush south of the property. I never saw them again.

    In my opinion, property taxes do not extend to giving public access to that property. It seems odd that the very government we pay taxes to support can turn around to give others the right to walk on our property.

    The BP oil spill has pointed out that EVERYBODY is affected by what happens in our waterways and the same with our air. The person burning toxins…the vehicle spewing exhaust poisons…forces all of us to be affected.

    As a society we should have the right to CLEAN waterways and NON TOXIC airways Our government energy should be spent where it matters and AFFECTS ALL OF US, human and creatures – clean waterways and air. Let the illegal beach walkers walk with specific permission from each land waterfront owner or learn to go to public beaches or get a second job, save their money and buy their own waterfront.

  31. No sympathy from me. Gate it, fence it, sign it, patrol it.. enjoy it. You
    keep looking for reasons why not, not why so I have other values and
    experiences that collide with yours. I keep watching the poll.

  32. Don’t let life pass you by while watching a poll. We have plenty of state parks…go launch your kayak…it will all sort itself out and we’ll have the government we deserve.

  33. It is a lovely day, the tide is high so I am not bothered by beach walkers.
    To much work to Kayak from here today as well. I agree we do get the government we deserve, Natl. Enquire today says Obama was born in Africa.. They have PROOF!!

  34. Now here’s an interesting tidbit from the “Center for Environmental Law & Policy” that seems to answer this ongoing public access question. It concerns the public trust doctrine in Washington.

    Here is a good overview to start with:

    – In Caminiti v. Boyle, the Court upheld the dock leasing statute. But, in a lengthy analysis, it acknowledged that the public trust doctrine has always existed in Washington. While the state may convey title to tidelands and shorelands, the private owner does not receive the full “bundle of sticks” that all first-year law students learn about in property law. Instead, the state retains a “jus publicum” or public easement on the lands. The state may no more dispose of these public rights than it may abdicate its police powers to run the government or preserve the peace. –

    and this:

    – Perhaps the biggest problem with the public trust is a general lack of knowledge about its contours. Shoreline property owners sometimes claim a right to exclude the public from the beaches that front their properties. But, as the Court noted in Caminiti, private ownership “cannot block public access to public tidelands and shorelands.” –

    Read the whole article here:
    http://www.celp.org/water/celpaward/Benella_Caminiti.html

    I assume most people will agree the public tidelands exist from the waters edge to the high tide line, so this seems to answer the legality question of public beach access.

    Could this be why Law Enforcement seems reluctant to respond to “Trespassing” calls where the “trespasser” is simply someone walking on the beach?

  35. Interesting. What does it say about folks in boats pulling ashore, pulling their boat up on a waterfront owners beach and going off to beach walk?

  36. Click on the link and read the whole article.

    You can see that it talks of Public Access, but says nothing about the mode of access. It also states that the waterways are held in public trust, so I would assume any access, including a boat or kayak would be fine, as long as the person doesn’t go above the high water line and exit the tidelands.

    another excerpt;
    – Her most impressive tool, however, has been her espousal of the Public Trust Doctrine. The public trust is a common law doctrine, quasi-constitutional in nature, which holds that navigable waters and the beds beneath are owned by the state, but held in trust for public use. The public trust doctrine, in one form or another, has been adopted by every state in the union. -

  37. I think of waterfront property as wonderful, expensive, luxury real estate…a beautiful playground in your own front yard.

    That said…is it possible the public could find something so attractive on beaches they anchor up on the ‘public’ beach and start walking and playing right in front of the waterfront taxpayer’s front yard. Even, conceivably, blocking that same owner’s access to the water with their own kayak.

    Why would anyone want to pay premium waterfront prices and elevated prperty taxes if their ‘waterfront’ is merely their donation for pub lic use?

    So…clams and oysters must be thought of as ‘public’…???

  38. “Why would anyone want to pay premium waterfront prices and elevated prperty taxes if their ‘waterfront’ is merely their donation for pub lic use?”

    I guess you would have to ask the waterfront property owners down in Oregon and California, or over in Hawaii for their opinions as they share the beach with everyone. …Funny thing is, they still find it worth owning even if they have to share.

    As for your other question about using the beach in front of someone who has waterfront property, I would assume so, same as if you owned property next to a lake or a park. If the beach is considered Public, then there is not much you could do about it, unless they were breaking a law like littering, disturbing the peace etc.

  39. As for Clams and Oysters, they have to be harvested where ever the fish and game determine and list in the manual.

  40. DannyBoy,

    I reviewed numerous State Supreme Court decisions and conferred with several lawyers before writing my story about the Public Trust Doctrine in Washington state. After reading your comment, I read Caminiti v. Boyle once again.

    As I said in my story, none of these cases resolve the question of whether a member of the public may walk across private tidelands during normal circumstances.

    One of the best reviews that leans toward greater public use was written in 1991 by Ralph W. Johnson and associates, The Public Trust Doctrine and Coastal Zone Management in Washington State. But even Johnson acknowledges that much remains unresolved by the Supreme Court.

    Read the unpublished Washington State Court of Appeals case Brennan v. Bainbridge Island for an interpretation that concludes that a person does not have the right to cross private tidelands:

    “… This language suggests that our Supreme Court did not contemplate pedestrian passage over tidelands. Accordingly, while recognizing the right under the public trust doctrine of ‘navigation, commerce, fisheries, recreation, and environmental quality,’ we affirm the trial court’s dismissal of the Larsons’ claims to pedestrian travel over privately-owned tidelands when not covered by water.”

    Since the case was not published, it sets no precedent and cannot be cited in future cases.

    Finally, here’s a 2006 law review article that argues forcefully against the logic of the Brennan decision: Enjoys Long Walks on the Beach: Washington’s Public Trust Doctrine and the Right of Pedestrian Passage Over Private Tidelands (PDF 152 kb). But the author still concedes that the Supreme Court has not resolved the issue of walking on the beach.

  41. “As for Clams and Oysters, they have to be harvested where ever the fish and game determine and list in the manual.”

    No…no one I knew even had a fish and game manual… not for waterfront dwellers. The waterfront folks pick at dinner time.

    Read Fredi Perry’s book about Seabeck, “Tide’s Out, Table’s Set” if you want to understand the relationship between us and our waterways. Our waterfront beaches feed us…they were never playgrounds for the public. Ask how many Native Americans read the manual before deciding when they can pick for dinner.

    There is a difference between Puget Sound waterfront and ocean beaches. My comments are based on our Puget Sound waterways – not oceanfront.

    Thanks Chris…

  42. I think all tidelands and waterways were the domain of the State at the time the state was established.

    There are countless sources that discuss the damage done to our water ecosystem. In our state alone 90% of the wetlands have already been lost. This issue has not been address (except in the past few decades), while over those early years property was being sold to private parties. The loss of tideland habitat and the associate wetland has damaged the ecosystem which we all need to survive. Historically only command and control has worked to improve this situation (that means state/federal laws).

    I am sure many waterfront property owners care about these thing too, some may even not modify the natural habitat which has some state law protection. When I was a waterfront property owner I did not have exclusive use rights. The use of the waterfront was highly regulated. Beach walkers seem like a better way to protect the publics ecosystem. There will be cases that the beach needs to be protected (such as nesting shore bird or soils protection) , I am all for closing those.

  43. Caminiti vs. Boyle asserts a public trust of the beaches which cannot be disposed of. However, it does not assert a public right to walk on those beaches. Those are two different things. Neither does that case explain what rights the owners did receive when they purchased the tidelands. The consensus of the beach walkers here seems to be that the owners received nothing at all.

  44. “I guess you would have to ask the waterfront property owners down in Oregon and California, or over in Hawaii for their opinions as they share the beach with everyone. …Funny thing is, they still find it worth owning even if they have to share.”

    You are confusing owning beach front with owning tidelands. What we want to know is, what did tidelands owners receive in return for their money? So far you have been very evasive about that.

  45. For over sixty years my parents believed they owned the beach rights to the low tide mark and didn’t allow trespassers to gather oysters or dig on the beach. Nobody ‘owned’ the water….

    Neighbors crossed the adjoining beaches but gathered oysters from their own beach…most followed the golden rule…”Do Unto Others….”

  46. We have fee simple deed with tidelands described. Not evasive. We pay
    over $6,000 in taxes for this prize. We are happy to let others frolic on
    beach and enjoy themselves. We are irritated with the crapping geese
    though.

  47. Cdunagan;
    Point well taken, thanks for the interesting read.
    From what I am gathering, the courts are, and always have been, rather wishy washy when it comes to this issue, leaving vast gray areas that need to be cleared up.
    As I said in an earlier post, it will most likely take a Public Initiative, as it did in Oregon, to make a concrete decision and force the State to go one way or the other.

  48. cjcampbell;

    I believe I stated in a previous post how in Oregon’s Beach Bill, the “beach owners” were compensated.

    Oregon Beach Bill;
    Section 12. For purposes of assessment and ad valorem taxation, whenever real property is held subject to a public easement declared a state recreation area by section 2 of this Act, the true cash value of the property shall be taken into consideration for the restricted use imposed on the servient property by the easement.

    When I read this, I understand that Oregon used the true cash value of the property when determining the award the property owners would receive to compensate them for restricted use, when the state made the public easement on all tidelands thus opening all the beaches to the general public.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

Before you post, please complete the prompt below.

Please enter the word MILK here: