Private ownership of beaches?

[+EraSeek]

Always an interesting topic to me. Once again, a proof that below high water mark beaches are public;

[+GeoRoo]

Always an interesting topic to me. Once again, a proof that below high water mark beaches are public;

 

That was always my understanding. Thanks for posting the proof. I've seen the "Private Property" signs posted at many beaches and have wondered how they get away with that.

[+WeightMan]

Since I happen to own some waterfront property on Hood Canal, I looked at my property description. That states that I own out to the meaner line. Not being too sure what the meander line was I did some checking on that. In doing so, I found this page from Washington Department of Fish and Wildlife. The meaner line may or may not be the high tide line. In my case I own about 300 feet of land seaward of the high tide line. It all depends on when the property was transferred to private ownership.

[+EraSeek]

Thanks for that link WeightMan, I have bookmarked it. I have read this before but lost it at some point. I have also spoken to the state on a couple of occasions out of curiousity in this subject. There are untested areas here that the courts have never addressed. However, what I came away with in my own conclusions was that there remains a right of passage on most tidelands even though privately owned (or claimed to be owned). In general you can cross the beach but not stop and daly, or disturb, litter, or remove anything from these privately held beaches. Best policy is just to stick close to the water as possible and keep moving.

[+WeightMan]

Thanks for that link WeightMan, I have bookmarked it. I have read this before but lost it at some point. I have also spoken to the state on a couple of occasions out of curiousity in this subject. There are untested areas here that the courts have never addressed. However, what I came away with in my own conclusions was that there remains a right of passage on most tidelands even though privately owned (or claimed to be owned). In general you can cross the beach but not stop and daly, or disturb, litter, or remove anything from these privately held beaches. Best policy is just to stick close to the water as possible and keep moving.

That's pretty much how the neighbors handle it. No problem with people crossing the land, but don't go picking up oysters or clams. We do, of course, have to have the proper permit to pick them ourselves. By the way, I think the meander line in our area is the mean lower low water line.

[+Lightning Jeff]

Under our state constitution (Art. XVII, Sec. 1), the state owns (or owned) "the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes." However, the state has sold those rights in many areas (and some were granted to private parties via federal patent prior to statehood; the state never owned these). Since at least 1982, such sales have been limited to public entities, though leases to private entities are allowed. RCW 79.125.200.

 

After a quick search, I can find no law that preserves public access to private (patented, sold or leased) tidelands or shorelands, generally. There is a statute (RCW 79.125.740) that reserves certain state-owned tidelands and shorelands for recreational use (including fishing and taking shellfish) and withdraws them from sale, but this obviously has no impact on areas that have already been sold or leased to private parties. As to these, I believe the law provides the same property rights that exist in any other private property. As such, the public has a right to traverse them only via formal easement or by permission of the property owner. At least, this is what I've been able to glean from a few minutes' research. At any rate, I would not assume that you have a right to pass over tidelands that are privately owned.

 

(A 1973 state supreme court decision provides interesting background on the debate about the nature and use of tidelands that occurred during the state constitutional convention - at which it was ultimately decided that they should be made available to private ownership.)

 

Okay, back to work...

[+EraSeek]

Note: Uplands are not tidelands>

 

The Public Trust Doctrine

The Public Trust Doctrine is a legal principle derived from English Common Law. The essence of the doctrine is that the waters of the state are a public resource owned by and available to all citizens equally for the purposes of navigation, conducting commerce, fishing, recreation and similar uses and that this trust is not invalidated by private ownership of the underlying land. The doctrine limits public and private use of tidelands and other shorelands to protect the public's right to use the waters of the state. (Visit the MSRC Web site and search for the State Supreme Court case Caminiti v. Boyle, 107 Wn. 2d 662, 732 P.2d 989)

 

The Public Trust Doctrine does not allow the public to trespass over privately owned uplands to access the tidelands. It does, however, protect public use of navigable water bodies below the ordinary high water mark.

[+EraSeek]

The current state of uncertainty. As far as I'm concerned I'll try and adhere to what little public rights may remain:

 

"Another informative reply from the state:

 

Greetings Era:

 

Brian Lynn has asked me to respond to your e-mail to him regarding walking

on Puget Sound tidelands.

 

In brief, there is no statutory law which mandates or allows pedestrian

access across privately owned tidelands. On the other hand, it's not quite

that simple, either. There is some case law which leaves the door open to

such pedestrian access. (Statutory law is that which is established by the

legislature; case law is that which is established through court decisions.)

 

First, I could not find the passage in Harvey Manning's book, "Walking the

Beach to Bellingham," which addresses this issue head on, but knowing Harvey

I would not be surprised that it is there. Harvey does address this issue

quite accurately and succinctly in his newer book, "Walks and Hikes on the

Beaches Around Puget Sound" (1995, The Mountaineers) at pages 25 - 30.

 

Without getting into the details, there is a body of case law known as the

"public trust doctrine" (PTD) which addresses public property rights in

certain landscape features and with respect to certain natural resources.

The PTD in the United States is derived from English Common Law which itself

goes back many centuries. Because the PTD is case law it is different from

state to state. Tidelands are amongst the landscape features most commonly

covered by the PTD.

 

Keeping in mind that I am not an attorney, and that cannot give legal

advice (and am not), the following is generally true. PTD case law in

Washington State has clearly established the principle that private owners

of tidelands do not hold the same bundle of property rights as they do to

their upland properties. Navigation over tidelands, including recreational

navigation, is a protected public trust right according Washington State

case law. There is no case law in Washington State which explicitly

addresses pedestrian access over tidelands at low tide as being either legal

or illegal. Until there is case law which unequivocally rules one way or the

other, this remains an open question. However, do beware that any property

owner who posts the beach fronting their uplands property as "private"

probably believes they have that right and may press their belief through

the courts. You should also be aware that because the is no clear case law

on this issue, you may find attorneys who will come down on one side or the

other as if the law was clear.

 

In the early 1990s Shorelands Program sponsored a legal technical analysis

of the public trust doctrine in Washington State with respect to coastal

zone management, and we still have a few documents in print from this

project. If you are interested in receiving a copy, just let me know (and

include your postal mailing address) and I'll have them sent to you. Doing a

web search on the phrase "public trust doctrine" will also turn up a rich

body of information -- just keep in mind that the PTD does differ from state

to state."

[+Lightning Jeff]

Navigable waters are clearly treated differently from the underlying tidelands; the latter may be private and its use restricted but the former, as far as I know, never is. Clearly this means the public can use the navigable waters above even private tidelands for, well, navigation. Does that mean you can walk on the tideland (the sale of which our legislature has explicitly allowed, in derogation of the public trust doctrine)? I don't know. Apparently it isn't clear, but the Hylebos decision I linked to above at least suggests that private owners whose tideland is not encumbered by an easement or the like could keep people out. (That is, I believe, the holding of the case.)

 

So, I dunno! Interesting discussion though.

[+Allanon]

Since this topic has come up, I think this is the place I should share an email I received as Secretary of the WSGA.

 

I do not know why this person felt the need to write to us, but internal discussion of the Board of Directors os the WSGA and at least one of the local reviewers was that we are not the cache-police...but that we should help in education. To that end, here is the letter:

 

To whom it concerns: While in general the concept of geocache is innocuous there are still parameters that need be observed. I would wish to have your organization address the all too frequently ignored RCWs relating to tidelands and the laws governing them. In brief, there are Private tidelands throughout all of coastal Washington that have dominance to the Lowest Low Water, that is to say if the water is not covering it, it IS private and has rights of exclusion 24/7/52. Transit is not granted by any save the tideland owner or

appointed representatives. This is demonstrated by the fact that a property tax bill is mailed faithfully every year by the state to the owners, there is a recorded description of the tract on record and, the tracts are recorded on the property deed description filed in the pertinent county assessor's office.

 

Given the above, it is incumbent upon your organization to properly inform and instruct those who place caches for the need to do so in such manner as to not create a conflict between ownerships and activity.

 

There are sites located on public lands that are not accessible save by water-craft as the surrounding uplands and tide tracts are Class 2 designations. Those who place and describe those location must be

precise as to the directions or notes about that site. This would include the topic of tidelands.

 

Your attendance to this issue in your forums would be greatly appreciated by the concerned property owners and those who are seeking an adventure.

 

Sincerely, name removed.

 

It seems strange that this letter should come to me and not more than 2 weeks later this topic appears. Might there be a connection? Has something happened to prompt such discussion or is it all just coincidental and theoretical?

[+EraSeek]

No, nothing has happened here with me. It has always been a topic of interest to me because it seems that all is not clear in current and past pratice. If you have any question, just search my posts from the past and you will see it is just a continuing interest.

 

One reason it is of interest to me comes from reading Harvey Mannings books and walking many beaches myself. I have never yet run into a conflict with any property owner, but I do worry about the loss of public rights of access. Personally I think the world has gone nuts in over-development, but that's another topic.

 

So who wrote the letter? Why not say? Was there a real problem somewhere?

[+Allanon]

So who wrote the letter? Why not say? Was there a real problem somewhere?

There is no reason not to since he signed it and it seems to be from a real email address, I really just wanted to find out more information first.

 

Stephen Willing was the name.

 

And I know nothing else, re other issues or problems. That's why I asked myself. The letter I posted is all I received.

[+EraSeek]

I have never heard of him, but me thinks he has the opposite concerns of myself, and for the same reason. Non-clearity. He states "all too frequently ignored RCWs relating to tidelands and the laws governing them" but lists no RCWs that we may view relating to the issue. He list a property bill as proof of his rights, but as stated to me when I wrote to the state

"PTD case law in

Washington State has clearly established the principle that private owners

of tidelands do not hold the same bundle of property rights as they do to

their upland properties. "

 

The Supreme court case dealt with class one tidalands what ever that is, which may be different from other lands.

 

So what I would point out is that:

Not all tidelands are private although the uplands may be.

Generally, unless specifically sold off, the state owns tidelands up to high water.

Free access to private tidelands has some unclearity and should be dealt with, with courtisy and respect. That is the best way to keep some access regardless.

People may claim rights of ownership that they may or may not have, which either way is a concern, but if someone is steadfastly enforcing their claim then each owner is restricted to their own little plot of sand (an undesirable situation for most everyone.)

As a best policy, stick close to the water, keep moving, disturb nothing and most people will have no problem with you passing through. If told to get off, do so.

 

By the way, I recently walked the beach from Richmond beach to Everett and wrote a small book about it for family and friends. Had had no problems along the way what so ever.

[+EraSeek]

Did a google search Apparently he owns beach guest cottages on Marrowstone Island

http://www.lanierbb.com/inns/bb5410.html#

[+Kiersolvd]

Did a google search Apparently he owns beach guest cottages on Marrowstone Island

http://www.lanierbb.com/inns/bb5410.html#

 

Must be the guy some of the recent logs of Walk on a Rocky Beach by Shunra are refering too.

[+EraSeek]

His website:

"Our 10 acre property features a naturalized landscape to harmonize with the adjoining 50 acre salt marsh, which gives access to 2 miles of beach."

 

So is the entire 2miles his beach? If not, who's property is he violating?

I really would be interested to see what property lines and right apply here.

 

Likewise, one could just walk in the water I suppose. Probably best just not to push it though.

[+uxorious]

This is demonstrated by the fact that a property tax bill is mailed faithfully every year by the state to the owners, there is a recorded description of the tract on record and, the tracts are recorded on the property deed description filed in the pertinent county assessor's office.

 

I do not own tidelands and know little about them. I do own creek front property. My property description has one edge of my property lines as the "center of the creek". I assume my tax bill is based on that.

 

Even so I have no right (nor desire) to keep people from walking up and down the creek. The property on the bed of the creek is treated different than the rest of my property.

 

The above quote assumes something that is not necessarily so. Just because you pay tax on it doesn't automatically mean you have total control over your land. (Just ask anyone out in the rural areas of the county. )

[+Difranco]

OT: Everytime I scan the thread list I see "Private ownership of Peaches".

[+Right Wing Wacko]

Under our state constitution (Art. XVII, Sec. 1), the state owns (or owned) "the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes." However, the state has sold those rights in many areas (and some were granted to private parties via federal patent prior to statehood; the state never owned these). Since at least 1982, such sales have been limited to public entities, though leases to private entities are allowed. RCW 79.125.200.

 

After a quick search, I can find no law that preserves public access to private (patented, sold or leased) tidelands or shorelands, generally. There is a statute (RCW 79.125.740) that reserves certain state-owned tidelands and shorelands for recreational use (including fishing and taking shellfish) and withdraws them from sale, but this obviously has no impact on areas that have already been sold or leased to private parties. As to these, I believe the law provides the same property rights that exist in any other private property. As such, the public has a right to traverse them only via formal easement or by permission of the property owner. At least, this is what I've been able to glean from a few minutes' research. At any rate, I would not assume that you have a right to pass over tidelands that are privately owned.

 

(A 1973 state supreme court decision provides interesting background on the debate about the nature and use of tidelands that occurred during the state constitutional convention - at which it was ultimately decided that they should be made available to private ownership.)

 

Okay, back to work...

 

Jeff, I seem to remember reading (although I can't find it now) that there was some provision in the Law Congress passed granting Statehood to Washington that reserved tidelands to public use. If this is the case, I would think that it would be outside the perview of state law to regulate (or SELL).

[+Lightning Jeff]

Jeff, I seem to remember reading (although I can't find it now) that there was some provision in the Law Congress passed granting Statehood to Washington that reserved tidelands to public use. If this is the case, I would think that it would be outside the perview of state law to regulate (or SELL).

That probably is another statement of the public trust doctrine, but I don't know for sure. The big question turns into whether, in the face of the PTD, the state can sell (and thus extinguish) the public's interest in those lands. It appears that in Washington, that isn't entirely clear. I stumbled upon a talk given by U.W. law professor Ralph Johnson apparently in 1993 (whole thing available here - very interesting):

 

Public Use of Privately Owned Tidelands

 

The Indianola tideflats in Kitsap County represent another question that will surely come before the state Supreme Court. It's surprising that it hasn't received more judicial attention.

 

At [issue in] Indianola is that there are about 500 feet of tidelands—nice sandy tidelands—that are privately owned by the people who own the upland. It's about 500 feet out to the water's edge when the tide is out. Everybody walks across those tidelands. They dig clams. They play baseball; play frisbee. I used to own one of the houses on the beach, and I remember that everybody just enjoyed the tidleands immensely.

 

The question in this situation is whether the public has a right to use the tidelands, or is it only by permission of the upland owners, and this can be revoked at any time. Different states have handled these questions in different ways. Some states say the public trust doctrine requires that the private owners allow the public to use it. Another approach is prescription. If the public uses this area for ten or twenty years and has made a habit of using it, then the court will uphold the use as a matter of prescription. You find other cases using the word customary—a customary use which is upheld as a matter of law.

 

The public trust doctrine is just one of the theories used in these cases. The courts are searching around, because the public demand is there. The courts are looking for legitimate means of providing public access to these waters and wetlands.

 

Privately Owned Tidelands - No Trespassing

 

I've illustrated a typical case as a hypothetical situation. Jones, who owns land along the shoreline in the City of Seattle, also owns the tidelands. Can Jones keep the public off? And let's assume that Jones' land has not had the public use as in Indianola. Does the public trust doctrine, or some other dotrine, allow the public to walk on these tidelands? I don't know. Some other states have recognized the public trust doctrine as requiring that private owners allow the public to use these areas even when there is no history of public use. In Washington the question is still open.

It's apparent that even he didn't know what our courts would say about this issue.

 

As I thought about the issue more, though, I came to the conclusion that a current court following the 1973 Hybelos state supreme court decision would likely rule that the PTD does not extend to public recreational access to private tidelands. It is true that private tidelands do not come with the full "bundle of rights" that other property does: To the extent they lay under navigable waters (and Johnson says all Puget Sound tidelands do, that navigable waters extend to the high-tide mark), they are subject to public use. However, I think that refers to the waters, not the tidelands. This doctrine, like others from the formation of this country, arises primarily out of an interest in promoting economic development and the growth of the country. Preserving the public's right to use navigable waters was central to that purpose: ships need to be able to get to port to move goods and people. By the same token, private development of tidelands may also serve that purpose: ships need wharves, ports, shipping offices, fueling stations, etc., and some of that requires keeping the public out/off (try traipsing through the Port of Seattle shipyards and see how far the PTD gets you).

 

I could also be wrong about how a court would come down on this. We elect our judges and our state supreme court is especially political. Maybe they would stretch the PTD to include public access to some private tidelands for recreational purposes. I just doubt it.

 

(Please understand, I'm not advocating closure of private tidelands to public access, just offering my thoughts on what the law is. Also, of course, I'm not your attorney and you're nuts if you rely on anything I say; that should go without saying if you take my avatar into consideration. )

[+EraSeek]

Very informative lin. Thanks.

 

It is true that private tidelands do not come with the full "bundle of rights" that other property does: To the extent they lay under navigable waters (and Johnson says all Puget Sound tidelands do, that navigable waters extend to the high-tide mark), they are subject to public use. However, I think that refers to the waters, not the tidelands. )

 

My counter:

"Common Law: The Public Trust Doctrine

The public trust doctrine covers navigable waters and their beds, including ocean beds, tidelands, and tributaries."

 

Likewise there are several places in the link that says even though the tidelands are sold to private owners, the PTD still remains in place.

 

Also, "In Illinois Central, the U.S. Supreme Court said that the state could no more convey away the public trust than it could convey away its police powers. In Orion, the Washington court said that the legislature has never had the authority to sell or otherwise abdicate state sovereignty or dominion of tidelands and shorelines.

The public trust devolved to the states upon gaining statehood. The Washington Supreme Court says it is a trust that the state legislature cannot relinquish by a transfer of the property. " although he qualfies this somewhat.

 

And again my concern is not recreation or digging clams, but simple passage.

[+EraSeek]

 

Jeff, I seem to remember reading (although I can't find it now) that there was some provision in the Law Congress passed granting Statehood to Washington that reserved tidelands to public use. If this is the case, I would think that it would be outside the perview of state law to regulate (or SELL).

 

Perhaps this:

"The equal footing doctrine simply means that any new state comes into the union possessing the same rights as the original 13 states. Those 13 original states owned the beds of navigable waters, so the same rights were granted to all subsequent new states. New states come into the union as equals, on an equal footing with the original 13 states.

 

The equal footing doctrine has great implications for the public trust doctrine in Washington. Puget Sound, for example, is navigable up to the high tide line. Navigability extends up rivers to where they are no longer commercially navigable. The river may be navigable for recreational purposes above that point, but what counts is commercial navigability. More to the point, what counts is the limit of commercial navigability at the date of statehood.

 

Sun Lake, for example, is commercially navigable, even though it is not used for commerce, but only for recreation. Title to the bed of the lake is in the state. The question is, was it commercially navigable at statehood? That doesn't mean it had to be used for commercial navigation at statehood, but was it potentially usable at statehood? If it was, then it's commercially navigable, and title to the bed lies with the state.

 

The public trust doctrine originally applied just to the protection of navigable waters and beds. In some states it now extends protection to tributaries as well. The state has conveyed some beds to upland owners, but the public trust doctrine still applies and limits development."

 

Again, all I wish to do is navigate if only by foot.

[+EraSeek]

One more interesting bit to add. A direct question with no answer:

"Question

Under the Massachusetts law that Ralph Johnson talked about, there is a right to walk along private beaches for the purpose of fishing. Is there anything similar to that in Washington State? Has there been, and has that been extinguished by the sale of private tidelands?

 

Richard Settle

I don't think it was ever there necessarily under any of the court decisions.

 

Charles Lean

Not that I know of. That's why I say, I'm not sure you could do it even on public lands. You probably can on most of them, but I suppose the government could set up a special reserve and keep you out. I don't know.

 

Ralph Johnson

It may be that it just hasn't been articulated that far in this state, but if you were in a boat and navigating, fishing over tidelands, I would assume you could do that. I'd be very surprised if the court wouldn't uphold that. In Massachusetts you can walk along the shore and do it, and they've addressed that in their opinions. Whether that will be true in the state of Washington is anybody's guess."

[+runhills]

When I tried to research beach rights for the Point Williams area I got very confused by how navigatiable waters define shoreline rights. If the shore is along navigation routes then the tidelands are public.....if.....and if. With all the varing factors I decided not to invite other to questionable shorelines by placing a hide. As an individual I will venture along most beaches and deal with land owners as required.

 

Once in college my fishing buddy, Tom, and I crossed a fenceline and got cornered by the landowner. Tom not only soothed the landowner down but had him leading us to better fishing. I don't have that gift of gab but by treating landowners as I would like to be treated I have always had enjoyable interactions with landowners.

[+EraSeek]

There are definitions of navigatable waters in the PTD. I'll look for it latter. All the waters in Puget sound are such. In fact there was a case where a channel was cut to a pond, thus the pond was now under the PTD. I'll look for that too.

 

Yes I know I am on fragile ground here, and there may be more argument against my position than for (and they may be right), but it is worth the fight and the education of where we stand. Uncertainty, is where we stand.

 

One thing is certain, you do have right of passage while on the water over tidelands. So how about wading to bypass a private beach?

[+EraSeek]

Here:

The equal footing doctrine has great implications for the public trust doctrine in Washington. Puget Sound, for example, is navigable up to the high tide line. Navigability extends up rivers to where they are no longer commercially navigable. The river may be navigable for recreational purposes above that point, but what counts is commercial navigability. More to the point, what counts is the limit of commercial navigability at the date of statehood.

 

Sun Lake, for example, is commercially navigable, even though it is not used for commerce, but only for recreation. Title to the bed of the lake is in the state. The question is, was it commercially navigable at statehood? That doesn't mean it had to be used for commercial navigation at statehood, but was it potentially usable at statehood? If it was, then it's commercially navigable, and title to the bed lies with the state.

 

The public trust doctrine originally applied just to the protection of navigable waters and beds. In some states it now extends protection to tributaries as well. The state has conveyed some beds to upland owners, but the public trust doctrine still applies and limits development.

[+runhills]

BLM Basic Water provides some interesting reading.