Question: I am a South Beach waterfront property owner with a question that I need some help in clarifying. The issue is natural shoreline access.
I have lived and walked along the South Beach shoreline from Country Club to the fish farm for some 11 years. Recently one of the newly moved in neighbors informed us that we could no longer walk across “their beach property” as it was private and was a bird santuary.
I am of the understanding that if I make entry to the beach area from a public access or from our own property … not that of the specific property owner, that transit across their shoreline was permissible. I seem to recall something about the Public Trust Doctrine that I read in the BI Review some time ago.
I was hoping that you might help me clarify if my walking over the privately owned land (shoreline) violates anyones rights. Seems a shame that one owner could cut off our opportunity to enjoy our South Beach natural shoreline.
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Answer: In Washington State public beaches are public — and private beaches are private.
Here’s a link to the Dept. of Ecology web page with some info. Specifically, it says… “Don’t trespass. Many public access beaches are bordered by private property. Please stay within park boundaries.”
The folks at the Long Beach Penninsula Visitors Bureau tell a more complete story…
“Unlike some coastal states, Washington’s tidelands and beaches are not all in public ownership. The state Legislature elected to sell its tidelands and beaches in 1889.The practice continued for about 80 years, until the Legislature changed the law in 1971. Today, an estimated 60 to 70 percent of Washington’s tidelands are in private hands. Public access is available only to about 30 percent of the state’s shorelines… “
When we bought our property a few years ago, the surveyor’s map showed our property extending out into the tideland. Therefore, I assume that your new neighbor is correct. My wife and I don’t object to the occasional beach walker. The newbies might change their mind when they find out it’s not a big problem on Bainbridge, but it’s up to them.
Private tidelands only extend to the mean low water mark. So, if you wait for a negative tide and walk at the water line, you are technically not on private property. Also, if the tide is up and you boat across, you are on navigable waters and not trespassing. What I do is generally try to go around low tide and to walk nearer to the water than to the high tide zone. I’d ask your new neighbor if (s)he minds you just going at low tide, and let him know that he’s free to walk on your tidelands. Oregon is a state that has it right: the public has right of way on all tidelands.
For many years I have understood that the Wash. St Parks own the tidelands below mean high tide from the Fort Ward boat ramp to the crook in the road, most of the way down South Beach Dr.heading south to Toe Jamb.
Several others have confirmed this but a check with the county would answer it.
I was screamed at by the same owner. When I questioned whether she actually knew where her property line was she yelled at us to call her lawyer. I just laughed, kept walking and told her to call the cops.
Some people visiting the island were behind us and turned right around and went the other way. Later we caught up with them and apologized for them having to have to deal with that as visitors to the island. We invited them down for a drink and a place to hang out and enjoy the beach.
Maybe we should just keep a kayak on each side of the property in question and paddle by in a foot of water?
BTW, you can not only walk but you can have a picnic in front of our place any time!
Sorry, John, but KB has it right. Different sections of shoreline in Washington were sold with different definitions of tideland ownership. Fortunately, property owners are relived of liability for injuries incurred on their tidelands by folks who are simply out for a walk. Take a look at the Dept. of Ecology and Long Beach Visitors web pages for a bit more detail.
The woman in question probably could have shot you dead and claimed you were threatening her while trespassing. I hope she and hubby chill out and get over it, but it looks like the law is on her side.
Actually Knute is not correct, it depends on your title and legal description. If you own the 2nd class tidelands your property extends down to the extreme low tide mark (sometimes said to be -4.5 feet), in other words all land that bares from the tide is private. Most of us who own 2nd class tidelands do not mind people walking across the beach. But it is private property. Too bad we can’t all just agree to allow beach walking and be done with this issue.
Here’s an excerpt from a document on the web site of the Dept of Ecology (WA). Looks like it’s an open question.
Full doc at: http://www.ecy.wa.gov/pubs/93054.pdf
…
2. Interests Potentially Protected in Washington
a. Right of Public to Walk and/or Harvest shellfish on Privately Owned Tidelands
The Washington Supreme Court has not had an opportunity to consider whether the public
has a right to walk across privately owned tidelands, or whether the public may dig clams on
those tidelands. One commentator notes that nearly all states recognize that the public trust
doctrine provides the public a right to pass and repass over public trust tidelands.244 While
states’ courts have issued opinions which generally lend support to the public’s right of
access, precious few have directly addressed the issue of whether the public has a right to
walk across privately owned tidelands.
…
Washington has no ordinances similar to Massachusetts’ 1641-47 ordinance which gave
upland owners title to tidelands. Our court has also recently recognized a broad range of
recreational rights under the public trust doctrine.258 These facts suggest that the Washington
Supreme Court might support the public’s right to walk over privately held tidelands, but the
eventual outcome on this issue remains uncertain.
…
My legal description details my tide land ownership as being to “ordinary high tide”.
I’ll check into this some more, but my recollection from many years of having our salmon farm in front of our house, all the permits that went with it and having discussed this many times with adjacent land owners is that the Washington St Park owns the tidelands below “ordinary high water” from the boat ramp to the crook in the road, going south toward Toe Jamb.
There actually use to be a cyclone fence that ran along the beach from the boat ramp to that same crook in the road.
More will be revealed………….
Knute has it right. The question is not about whether beach and tidelands can be private property in WA – they can. The question is whether there is an implied easement for public access over such private tidelands when the tide is out based on the Public Trust doctrine (aka the state’s jus publicum interest). It is already settled law in this State that there is such an easement when the tide is in, e.g. for access via boat. Another possible legal argument is the doctrine of customary use.
In most states with significant shorelines – across the political spectrum from Oregon to Texas to Florida – there is a guarantee as well of pedestrian access when the tide is out, generally to the mean high tide line.
Absent legislative action to clarity the situation in WA, it will take a trespassing conviction working its way all the up through our court system before this gets definitively resolved.
Meanwhile it would seem we must each make our own judgments, hopefully erring on the side of being welcoming and considerate neighbors. Transiting a privately-owned beach below the mean high tide line seems reasonable to me, even if there are signs saying the beach is privately owned, since the principle here is not about private ownership but about the right of access. Hanging out on a privately-owned beach to have a picnic would be on much shakier legal and IMO anyway moral grounds. Shellfish gathering on a private beach without permission is theft.
I have no knowledge of how title is held from the condos to the west. But to my knowledge, and as the depicted on the Zillow.com site, all the homes to the east of the condos to a point where South Beach Drive is on the water side also own their beach out to the low tide line. Having said that, I have never even heard of issues with neighbors and their guests walking wherever they want regardless as to where the tide is. I’d suggest that whoever the new neighbor is that she reconsider her position or she’ll be really restricting her own access to a very small plot of beach.
On the other hand, we do have parks, public access and other non-private beaches for others to use. Suggesting that it’s possible to make it through that narrow area on the few days that daylight and minus tides permit makes me wonder why. Is doing so truly a nice walk or just to demonstrate someone can? I’d suggest that maybe one reason many guard their right to private property and privacy so closely is because they don’t want their beach to become like their yards on South Beach where many walkers either allow their dogs to run freely and/or don’t pick up after the piles of poop they leave. Unfortunately, we have to clean up after them, generally after we’ve stepped in it.
Al, it’s not about minus tides – in States where the right of pedestrian access is firmly established it is generally to the mean high tide line, which means beaches are walkable most of the time.
Wow! Finally a topic that sparked some interest from SMP. I am still not sure if it is ok to walk on someone’s beach. I live on Rockaway Beach. All are welcome to walk on my beach. There seem to be no shortage of data, laws, special studies and rulings that apply to our beaches. No matter how many laws are past, one thing is for certain, some people are just asses. Could someone please give me the address of this person? I think it is important that we protect our neighbor. It would be a shame if these lovely people were not able to enjoy their property due to others trespassing on their beach. So, please provide me with their address so I can share it with everyone I know. I think we owe it to our newbie neighbor. What can I say, I’m a giver.
Suggestion… I get the sentiment, but give the newbies some time. I was nervous about people walking on my beach until I found out that they couldn’t sue me for any injuries they might suffer while trespassing. Now, it’s live and let live. We were all newbies at one point or another.
It is interesting to see how much attention this article has received. As a walker, it’s probably best to remember the Dept. of Ecology’s advice. “Don’t trespass. Many public access beaches are bordered by private property. Please stay within park boundaries.”
It’s hard to ask the City and State to respect our property rights with respect to bulkheads, native vegetations zones, and very restrictive environmental designations, if we can’t respect our neighbor’s rights. Something to think about, isn’t it?
Bill, WA is not one of those states like CA.
Some people on the water have bought and own that property, some have not. Is it your opinion that someone should legally challenge the way the existing laws are interpreted? I sure hope, if successful, the landowners are appropriately compensated for their losses as well as all the extra expenses the City of Bainbridge Island requires waterfront homeowners pay for even repairing their own bulkheads in order to protect their homes. Will the city also pick up after all those people, or is that the homeowners new job as well?
Al,
There is no legally binding precedent about whether walking over privately-owned tidelands below mean high tide line is trespassing or legal access thanks to the Public Trust Doctrine and/or customary use. As this is unsettled law in WA that means there is no such standard “way the existing laws are interpreted”. Again it *is* settled law that it’s legal to *float* over such tidelands even when there’s an inch of water. There are also many other circumstances in WA where public easements over private property are well-established, riparian access for one. Entering private property is not always trespassing and the existence of public access rights does not imply any “taking” of such private property. Private property comes with responsibilities as well as rights and that is surely true for those of us with waterfront property.
More references… this is not an easy question to answer.
Beach-walkers are still waiting for a legal answer
July 8th, 2010 by cdunagan
http://pugetsoundblogs.com/waterways/2010/07/08/beach-walkers-are-still-waiting-for-a-legal-answer/
The Legal Dilemma of Beach Walking
July 5, 2010 by Christopher Dunagan
http://www.kitsapsun.com/news/2010/jul/05/the-legal-dilemma-of-beach-walking/
We have the similar issues on our beachfront in W Port Madison. We often have people anchor in their boats in the bay, and then see our sandy beach and/or shoreline and bring their dogs up for relief. We have had people trash our sandy beach as well. One does get pretty territorial.
We also often have people who want to walk around on the beach. Just this morning a group said they were meeting someone in kayaks who planned to land here. We told them they were on private property, but they just kept walking – although one gentleman tried to be reasonable. By this time my husband was seeing red. The kayakers did not come to our property but were over by the end of Skogen Lane. If people were reasonable and respectful of the fact that they are in our “backyard” I’d be much more receptive. However, so many think they know the law and are just plain rude. Besides, our beach is not that easy to walk on, so often it seems to be a case of “don’t tell me…” There is a beach access off of Broom St which people can use to launch kayaks or meet people..
I too was screamed at and, I felt, verbally assaulted by same person. I live on S Beach waterfront and was quickly walking (not loitering) from the park to home. I was still three (3) houses away from hers when she started screaming at me. Including obscenities. I turned back. I felt she might have had a gun – her language was so strong.
I acknowledge and respect it is her property. What saddened me was the verbal assault, and the fact that I wasn’t on her property.
Perhaps she has had a bad experience. There are people that don’t show respect for others property, unfortunately. It IS too bad we can’t all agree to allow beach walking, no loitering. There is nothing better than watching people enjoy the beach – minus the ‘trashing’ and lack of respect Dorothy mentioned.
So I’m Indian…per Judge Bolt’s decision i can walk on any tidelands at anytime i want……i don’t….but try that one on for size…just another topic for fun….i do get disgusted by the drug dealing, white trash leaving beer bottles and dirty diapers on the beach and letting their dogs freely shit all over the beach….i watch it all from up above….i pity the beach owner’s who have this going on in their faces all day long….i am 30′ up and have purposely grown bushes to hide the beach in places so as not to see it all…..now its worse since Kyak point charges $5. a person to walk on the beach thus forcing these people elsewhere….so the state beachs claim to be for all but charge an arm and a leg to use its beach front…what a sham thus forcing the poor to public access beaches. What a joke!