Private tidelands access

[+EraSeek]

Over the years and recently as well, I have heard of a Washington state law which basically says, ''Yes, tidelands can be privately owned BUT public access (read- walking across) must be allowed''. I know I read this in Harvey Mannings book about Walking to Bellingham (along dikes and tidelands) and recently on the radio or in the paper I believe. On most public access beaches, at the end of them, you see signs saying "Private shoreland, no trespassing". I believe in the right of the public to simply pass across these tidelands (and only pass across them). Can anyone help me find the state law which speaks to this conflict? Thanks. I would just like to have it in hand and to know that I am correct.

 

 

"See the wonderous works of Providence! The uncertainty of human things!" Geo.Washington

[+Renegade Knight]

Check for waters of the US.

 

Ignoring ocean, most people own to the mean high water line. Everything else including what it behind fences marked "No Trespassing" is open. Sometimes you can see the fence cross the property pin right on down to the waters edge.

 

You will probably find the laws are similar for beaches. Of course some rich bastard can enforce his 'right of use' much better than the average geocacher.

 

Based on Mark42's post, it doesn't look promising. It's going to take research with the law or conversations with surveyors familiar with the problem.

 

[This message was edited by Renegade Knight on September 15, 2003 at 09:16 AM.]

[+Mark 42]

http://beach.com/stateofthebeach/6-state/beach_access.asp?state=WA

 

http://www.google.com/search?hl=en&ie=ISO-8859-1&q=washington+tidelands+access&btnG=Google+Search

[+Right Wing Wacko]

The State Constitution States:

 

ARTICLE XVII

TIDE LANDS

 

SECTION 1 DECLARATION OF STATE OWNERSHIP.

The state of Washington asserts its ownership to 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: Provided, that this Section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state.

 

Harbors and tide waters: Art. 15. Section 2 DISCLAIMER OF CERTAIN LANDS. The state of Washington disclaims all title in and claim to all tide, swamp and overflowed lands, patented by the United States: Provided, the same is not impeached for fraud.

 

It is also my understanding that such a provision was required by the enabling act of congress that authorized the formation of the state and therefore cannot be modified without approval of congress.

 

[+Uplink]

It seems to me that while the State of Washington asserts ownership of tidelands, the provisions for public access seem to have a lot of holes in them. Traversing private uplands to access many tidelands seems to be honored in principle more than fact.

 

WAC 173-26-220

(4) Public access.

(a) Applicability.

Public access includes the ability of the general public to reach, touch, and enjoy the water's edge, to travel on the waters of the state, and to view the water and the shoreline from adjacent locations. Public access provisions below apply to all shorelines of the state unless stated otherwise.

( Principles.

Local master programs shall:

(i) Promote and enhance the public interest with regard to rights to access waters held in public trust by the state while protecting private property rights and public safety.

(ii) Protect the rights of navigation and space necessary for water-dependent uses.

(iii) To the greatest extent feasible consistent with the overall best interest of the state and the people generally, protect the public's opportunity to enjoy the physical and aesthetic qualities of shorelines of the state, including views of the water.

(iv) Regulate the design, construction, and operation of permitted uses in the shorelines of the state to minimize, insofar as practical, interference with the public's use of the water.

© Planning process to address public access.

Local governments should plan for an integrated shoreline area public access system that identifies specific public needs and opportunities to provide public access. Such a system can often be more effective and economical than applying uniform public access requirements to all development. This planning should be integrated with other relevant comprehensive plan elements, especially transportation and recreation.

Where a port district or other public entity has incorporated public access planning into its master plan through an open public process, that plan may serve as a portion of the local government's public access planning, provided it meets the provisions of this chapter. The planning may also justify more flexible off-site or special area public access provisions in the master program. Public participation requirements in WAC 173-26-200 (3)((i) apply to public access planning.

At a minimum, the public access planning should result in public access requirements for shoreline permits, recommended projects, port master plans, and/or actions to be taken to develop public shoreline access to shorelines on public property. The planning should identify a variety of shoreline access opportunities and circulation for pedestrians -- including disabled persons -- bicycles, and vehicles between shoreline access points, consistent with other comprehensive plan elements.

(d) Standards.

Shoreline master programs shall implement the following standards:

(i) Based on the public access planning described in © of this subsection, establish policies and regulations that protect and enhance both physical and visual public access. The master program shall address public access on public lands. The master program should seek to increase the amount and diversity of public access to the state's shorelines consistent with the natural shoreline character, property rights, public rights under the Public Trust Doctrine, and public safety.

(ii) Require that shoreline development by public entities, including local governments, port districts, state agencies, and public utility districts, include public access measures as part of each development project, unless such access is shown to be incompatible due to reasons of safety, security, or impact to the shoreline environment. Where public access planning as described in WAC 173-26-220 (4)© demonstrates that a more effective public access system can be achieved through alternate means, such as focusing public access at the most desirable locations, local governments may institute master program provisions for public access based on that approach in lieu of uniform site-by-site public access requirements.

(iii) Provide standards for the dedication and improvement of public access in developments for water-enjoyment, water-related, and nonwater-dependent uses and for the subdivision of land into more than four parcels. In these cases, public access should be required except:

(A) Where the local government provides more effective public access through a public access planning process described in WAC 173-26-220 (4)©.

( Where it is demonstrated to be infeasible due to reasons of incompatible uses, safety, security, or impact to the shoreline environment.

In determining the infeasibility, undesirability, or incompatibility of public access in a given situation, local governments shall consider alternate methods of providing public access, such as off-site improvements, viewing platforms, separation of uses through site planning and design, and restricting hours of public access.

© For individual single-family residences not part of a development planned for more than four parcels.

(iv) Adopt provisions, such as maximum height limits, setbacks, and view corridors, to minimize the impacts to existing views from public property or substantial numbers of residences. Where there is an irreconcilable conflict between water-dependent shoreline uses or physical public access and maintenance of views from adjacent properties, the water-dependent uses and physical public access shall have priority, unless there is a compelling reason to the contrary.

(v) Do not allow public access improvements that would cause significant ecological impacts to shoreline ecological functions that cannot be mitigated. Require that public access improvements with the potential to degrade ecological functions be designed to minimize adverse impacts.

 

It is absurd to divide people into good and bad. People are either charming or tedious. -- Oscar Wilde

[+EraSeek]

Some of this language is hard for me to understand. I know that when the state was created, in following tradition, tidelands where restricted from sale to private parties by law. Sometime later, the state began saleing lots of those lands. Then once again, the state banned the sale of those lands. I am still not clear if I can legally walk across these beaches where people have put up signs saying "private beach to extreme low water mark. Trespassers will be cited." I talked to some scuba drivers and they said they just keep their feet in the water, and people still yell at them. Personally, I think the shoreline is all of ours, or should be, to high water mark.

 

 

"See the wonderous works of Providence! The uncertainty of human things!" Geo.Washington

[+EraSeek]

I got a reply for the State Ecology department:

 

There is no Washington state law that explicitly allows trespass over privately owned beaches. However, it's not clear if walking across tidelands would be allowed under common law - this case has never been presented to the state courts, where these rights are established. The answer is more simple if you're on top of the water, though even that is contested in some areas...

 

For an introduction to the public trust doctrine visit this web site:

 

http://www.ecy.wa.gov/programs/sea/SMA/laws_rules/public_trust.html

 

-----Original Message-----

From: Era Seek [mailto:EraSeek@msn.com]

Sent: Sunday, September 14, 2003 10:50 PM

To: Gates, Tim

Subject: Private tidelands access

 

Please tell me. I have always understood that there is a Washington law which, although allowing private ownership of tidal lands, states that public access (read- "walking across") across the shoreline must be allowed. Am I correct? Thanks.

 

 

"See the wonderous works of Providence! The uncertainty of human things!" Geo.Washington

[+EraSeek]

"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."

 

Also read the post above this one.

[+EraSeek]

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.

 

Best regards,

[+evergreenhiker!]

Great response...thanks for posting it, EraSeek.