Beach rights: This sand is your sand, this sand is my sand

There’s public property, and there’s private property. Then there’s beach property.

View down the beach from the public boat launch off Robinson Road near Freeland.

There’s public property, and there’s private property. Then there’s beach property.

There has been a steady, near constant cadence of complaints to police over unwanted activities by people using Whidbey beaches this summer, from reports of tidelands trespassers to large bonfires, loud parties and people having sex near the shore.

Emergency calls to 911 dispatchers have come from neighborhoods along Brighton Beach, Saratoga Beach, Columbia Beach, Mutiny Sands, Lagoon Point, Lancaster Terrace and beyond.

With roughly 200 miles of saltwater shoreline in Island County, it should come as no surprise that many people are drawn to Whidbey’s postcard-perfect beaches. But homeowners who have tried to draw a line in the sand by posting “Private Beach”-style signs on their property have found that — this year, at least — fewer folks are reading and heeding the warnings.

Officials say such trespassing is a reflection of an extremely complicated situation involving tideland ownership, ancient public rights and an especially good humpy run.

“I spoke with several disgruntled citizens, and they all say it’s worse this year than in the past,” Island County Sheriff Mark Brown said Monday.

“It appears to be going on all over the county,” he added, “and it seems like people have a lot more attitude.”

Unlike other states that allow nearly unlimited access to shorelines, laws in Washington state protect the private property rights of waterfront residents.

But only to a point.

“These are questions we get all the time,” Mike Rechner, assistant division manager for aquatic resources at the state Department of Natural Resources, said Monday.

“We usually have a pretty good idea where the line is, but pinning it down is an extremely difficult thing,” Rechner said.

Rechner said beachgoers have free reign on public tideland at state parks, and public beach access areas such as boat-launch ramps and other clearly marked areas. But stray from those areas, and people are likely to be on private property.

There may be more public tideland down the beach, but you’ll probably have to walk across private tideland to get to it, Rechner said.

And don’t think you’re on public property because you’re walking in the water, he added. Much private tideland stretches to the extreme low-tide mark, “something we hardly every have,” Rechner said.

Sheriff Brown said that while many trespassing complaints involve non-Whidbey residents, there also are a number of incidents involving neighbors, or their friends and relatives, who may or may not have been given permission to be on certain stretches of beach.

Brown also said he has been running into confusion among members of homeowners associations. He said many members mistakenly think that their memberships allow them to go on private beach property owned by other members.

There’s also wide variation on what actually constitutes a private beach, depending on the reading of individual property titles, Brown added.

He said once deputies respond to complaints, it’s up to a property owner to verify there has been a violation.

“It becomes difficult,” Brown said. “We don’t want deputies getting out tape measures to see if someone is on somebody else’s property.”

He said the issue is so complicated that there have mostly been warnings issued in trespassing incidents, and few arrests.

Brown also said he believes many of this year’s complaints are tied into a particularly good humpy (pink salmon) run currently in full swing in the area.

Humpies are typically three to five pounds, but can be as large as 14 pounds. In Washington, they tend to run heaviest in odd-numbered years, and at the height of summer.

They generally swarm within 60 feet of shore, and are often caught by casting “pink fuzz bombs” from the beach.

“So you can have a large amount of fishermen in a small area,” Brown said. “They encroach a little left or right, and are suddenly on somebody’s property.”

“We’ve been getting some complaints about people walking on a beach, but a lot more complaints about people walking and fishing,” he added.

Brown said tribal fishing rights also can come into play in reported trespassing cases. Some American Indians, by law, are granted access to certain traditional fishing grounds, regardless of who owns the property.

Janice Smith and her husband Karl live two houses north of the restaurant at Bush Point. Both the parking area of the restaurant and beach access to their home are clearly marked as private property, but that hasn’t stopped folks from trying.

“It hasn’t been too bad this year, maybe three or four a day during the humpy fishing season,” said Janice Smith. “In the past, I’ve had to call the sheriff, but usually I go and talk to them and they leave after a little grumbling.”

She added that in past years, people sometimes swore and became angry.

Smith noted that the biggest problem occurs on the beach south of the Bush Point boat-launch ramp.

“On some days, there can be dozens of people lining the beach in front of those homes, all fishing on someone’s private property,” she said.

Reta Worden lives on the water near the Clinton ferry dock. She said she hasn’t been disturbed by people walking in front of her beachfront property on Columbia Drive.

“Hey, it’s a beach and folks walk by, but no one’s tried to camp here,” she said. Worden noted that the beach near her house has clear signage regarding trespassing, however.

Likewise, Harry Scott, the president of the homeowners association for the Scatchet Head community, said complaints of trespassers on the neighborhood’s beach have been few and far between.

That may be due to the measures the association has taken in recent years to discourage unwanted interlopers in the beachfront community that has one of the best clamming beds in Puget Sound.

In recent years, the homeowners association has hired an off-duty sheriff’s deputy to stand guard — complete with uniform and patrol car — to keep a watchful eye out for unwanted clammers at the start of the season.

“We call them clam guards,” Scott said of the hired help.

Word seems to have gotten around, he said.

“After that we didn’t have too much of problem. We seem to have evolved,” Scott said.

The association didn’t hire anyone this year to guard the beach, he added, but it may be considered again in the future. A live-in caretaker and a key-card access system to the association’s facilities has also made a difference.

Brown said sheriff’s deputies attempt to respond to all beach trespassing complaints, but given recent staff and budget cuts, such incidents are a low priority unless violence breaks out.

Brown urges beach property owners who don’t want visitors to clearly mark their property with signs, and for people who are unsure where to walk to attempt to obtain proper permission.

Brown said he hopes the number of beach trespassing complaints will dwindle once the humpy run is over in a week or two.

“Most people are somewhat reasonable,” he said. “In the end, we’re trying to police people into being nice.”

Complex laws covering property ownership at the water’s edge is one reason authorities stress cooperation over confrontation.

Rechner of the DNR said tideland ownership is wrapped up in 19-year tidal averages, extreme high tide, extreme low tide, ancient common law, when a piece of beach property was purchased, and the language in the deed, Rechner said.

He said each ownership is a separate case, and that it isn’t uncommon for two neighbors side-by-side to own different amounts of tideland.

Added to that is the fact that courts in Washington so far haven’t clarified public beach-walking rights implied by the public trust doctrine, Rechner said.

The ancient doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain it for the public’s reasonable use.

The doctrine dates back the laws of the Roman Emperor Justinian, which held that the seashore that wasn’t appropriated for private use was open to all.

Rechner said the tideland ownership situation is so complex that the DNR won’t take action on a dispute without taking a survey of a property in question.

He said he would advise beach walkers to get as much permission from property owners as possible, and for property owners to communicate with walkers.

“People need to talk to people as much as they can to keep conflict to a minimum,” Rechner said. “But I don’t know how much that really happens.”

“It’s just a really complicated issue, one that hopefully in time will become clear,” he said. “But I’m not so sure it will.”

Record writers Jeff VanDerford and Brian Kelly contributed to this report.

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