Letters to the Editor

LETTER TO THE EDITOR | Legal precedent would remove uncertainty

To the editor:

This letter is written in response to the Aug. 26, 2009 article “Beach Rights: This sand is your sand, this sand is my sand” which raises several complex issues.

I am not an attorney, so no one should consider what follows to be a legal opinion. However, I have been involved in land-use issues in Washington State for several decades, including the acquisition of miles of Puget Sound shoreline and tidelands for public agencies and, while not an expert on tidelands per se, have far more than a casual understanding of the issues.

When the state of Washington made the unfortunate decision to offer for sale the tidelands of Puget Sound to adjacent upland owners, the question of whether such sales would preclude the public from using tideland below mean low water was left unanswered, and remains so.

The sale of what were public tidelands was offered at token values to upland owners with no real clarity on what these acquired rights consist of. The assumption that a purchase gave the upland owners exclusive use of tidelands, including but not limited to those areas below the mean low water mark, is unclear. Based on research I did for a public agency several years ago, the issue has never been litigated in the state of Washington. Without legal precedent, it is difficult if not impossible to ascertain the rights of the public and the rights that are inherent in tideland ownership.

This, in turn, leaves the “trespassing” assertion, without answers.

During my research I found that even the Washington State Department of Natural Resources is not clear on this issue.

The question may come down to whether tidelands below the mean low water mark are to be interpreted through Common Law (a precursor to our real property laws) or the Public Trust Doctrine which holds that certain natural resources (such as air, waterways, etc.) may not be sold by the state and must be held in "trust” for use of the people. Those that fall on the side of Public Trust Doctrine argue that the token value paid for tidelands were never meant to convey exclusive use to the tideland purchaser.

Moreover, the state of Washington controls all navigable waterways within its boundaries. An additional question is: What are the lateral edges of the waterway – high water, mean water, low water?

Two summers I ago I circumnavigated Whidbey Island first by kayak and then swimming around it in 30 separate legs. I am respectful of private property rights so I tried to the best of my ability to understand the issues.

What I concluded was this: Until this issue is litigated and legal precedent is set, I am within my legal rights to respectfully walk from public property (parks or street ends) to another public property, provided I stay below mean low water, keep moving, and do not remove any objects (shellfish, beach objects, etc.) while in transit.

I should also mention that I took the time to learn how to identify mean low water, asked permission whenever possible, and respected the privacy of the adjacent property owners.

Needless to say, this issue is contentious, emotional and highly dependent on one’s perspective.

If you are a tidelands owner you want to believe that your interpretation of the law is correct and that anyone transiting across your tidelands is trespassing. If you are a beach user, you want access to that big beautiful body of water that you moved to the island to enjoy.

Meanwhile the potential consequences of a clear legal precedent – which would daylight this issue like never before - should leave people on both sides of the issue uneasy.

As is often the case, truth, fairness and lawfulness may lie somewhere in between polar opposites.

Phil Pearl

Flagstaff, Ariz.

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