Tag Archives: tidelands

Legal questions abound for beach walking, driving

It has been seven months since I launched an informal poll that asks whether people should be allowed to walk across privately owned tidelands as a basic right reserved to the public. The number of respondents has reached nearly 500, and I’d say it is time to retire the poll.

Last July, when I examined the legal implications of the Public Trust Doctrine for a story in the Kitsap Sun, the issue generated 91 lively comments on all sides of the issue. (See the bottom of the story.) Subsequently, I discussed the questions further in Water Ways on July 8, when I launched the poll.

As responses have grown, the percentage of people in each camp has remained nearly the same. In the final count, 62 percent of respondents (301 votes) said the public should be allowed to walk across private tidelands below the high-tide mark.

The remainder was split almost equally between those who believed the public has no right to walk across private tidelands (93 votes) and those who believe the courts should strike a balance, perhaps by allowing people to walk on a lower section of beach when the tide is out (92 votes).
Continue reading

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.

DNR holds online forum about geoduck farming

The Washington Department of Natural Resources is hosting an interesting conversation this week about the potential of leasing state-owned tidelands for geoduck aquaculture.

A typical geoduck farm involves seeding tiny clams on the beach and protecting them from predators for about two years. Normally, a section of PVC pipe is inserted into the beach, one surrounding each clam. The DNR is providing a variety of background information in support of this week’s discussion.

Each day this week, a new question about geoduck aquaculture is being raised. The participants in this forum are the very people involved in the debate at the local and state levels, so one can learn a great deal about this debate by skimming through the comments.

On Monday,
the question was: Are there effects of geoduck aquaculture on public access and aesthetics, and if so, how can they be mitigated?

Most of the commenters were opposed to geoduck farming on state lands, saying that the tubes were ugly, intrustive and restricted public access in various ways. Geoduck farmers also weighed in, saying the problems are minimal when the farms are managed responsibly.

Tuesday’s question was: When seeking to balance the public benefits from state-owned aquatic lands, how much of a priority should DNR give to job creation and revenue generation when developing a geoduck aquaculture program on state tidelands?

This lively discussion involved a range of interests discussing the balance between jobs/economic benefits versus protection of the ecosystem. Some people made the point that money raised by leasing state land can be used for environmental restoration.

On Wednesday, the question turned to: What does science tell us about the impacts of geoduck aquaculture on Puget Sound?

I found this discussion more confusing, in part because references to scientific studies were mixed in with personal observations. Many of the comments were interesting, but the discussion was too scattered to really address the scientific questions, for which some studies are still under way.

Today’s forum is called “unknowns”: If DNR moved forward on a program leasing state-owned tidelands for geoduck aquaculture, are there significant unknowns that we need to be aware of, and if so, what are they?

As of the time of this posting, only a couple people had weighed in today, but you may want to comment on this item or on any of the topics in previous days. One can navigate through these various topics from the main page of DNR Forum.

I would like to know what you think of this forum by DNR and if we might want to encourage discussions like this on other important issues of the day.

Wandering back into the history of the shellfish dispute

I started writing a little history about the tribal shellfish dispute in response to a comment made by Sharon O’Hara in the post about tidelands. My comment grew to such length that I decided to write a new entry.

I hope my explanation is accurate, but I’ve never put myself up as an expert in treaty rights. I invite anyone to add or correct the following, but please be kind.

Thanks, Sharon, for your interest. Sometimes events are happening so fast that I neglect to pause and bring everyone up to speed, so indulge me as I offer a little perspective.

Of course, private property owners don’t wish to have any uninvited person harvesting shellfish on their beaches. That’s only natural.

But let’s look at the tribes’ point of view. (I try to see all sides.) When tribal leaders signed the treaties in the 1850s, they agreed to move onto relatively tiny reservations. In return, territorial leaders promised that they would be allowed to continue their way of life, travel throughout the region, and hunt and fish among the white settlers.

From the Treaty of Point No Point: “The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians, in common with all citizens of the United States… Provided, however, that they shall not take shellfish from any beds staked or cultivated by citizens.”

When the resource seemed unlimited, people could take what they needed and there would always be something left. But as more and more settlers moved in, they began to exclude Native Americans from their tidelands. Why wouldn’t they? Their property deeds said nothing about sharing with the Indians.

It wasn’t until the 1970s that federal courts began to consider the validity of those treaties and their meaning today. Given limited fish and shellfish resources, the courts held that the only fair way to share was 50-50. We can argue about whether that decision was right, but the equal split was upheld more than once by the U.S. Supreme Court.

To non-Indians, it appears that the ruling suddenly diminished their property rights in favor of Native Americans. But the court said those rights were never given up by the natives.

So why didn’t people’s deeds explain that tribes retained these rights on private lands, something like a person retaining mineral rights when selling his property?

Given the courts’ rulings, the only answer can be that state and federal governments made a mistake when they first transferred ownership to private owners. The $33 million settlement is an attempt to address such concerns on commercial shellfish beds not covered by the “staked and cultivated” clause.

Nobody has yet addressed the issue for other private tidelands, however. I have heard legal experts say that the only resolution may come from a massive lawsuit against the governments. The case would involve complex issues of property rights and title requirements. Whether state and federal governments could be held liable by today’s tidelands owners remains undetermined.