Academic journal article Washington Law Review

Enjoys Long Walks on the Beach: Washington's Public Trust Doctrine and the Right of Pedestrian Passage over Private Tidelands

Academic journal article Washington Law Review

Enjoys Long Walks on the Beach: Washington's Public Trust Doctrine and the Right of Pedestrian Passage over Private Tidelands

Article excerpt

Abstract: Under Washington's public trust doctrine, the state retains a jus publicum interest in tidelands, regardless of ownership. This interest obligates the state to protect the public rights encompassed within the jus publicum: navigation, fishing, boating, swimming, water skiing, and corollary recreational activities. The state satisfies this duty so long as its actions do not circumscribe public access to those resources, including tidelands, traditionally protected by the public trust doctrine. The title to any tidelands property sold into private ownership is similarly burdened; a private tidelands owner may not utilize property in a way that would compromise the state's jus publicum interest and public rights protected thereby. This Comment argues that Washington's public trust doctrine encompasses a public right of pedestrian passage over unsubmerged private tidelands, at least where necessary to realize those jus publicum rights previously recognized by the judiciary. Judicial acknowledgment of such a right is a logical extension of the Washington State Supreme Court's holding in Caminiti v. Boyle that private construction on state tidelands does not impair the jus publicum where the private property owner permits public pedestrian passage as necessary to effectuate public trust rights. Furthermore, recognition of a right of public access to private tidelands harmonizes Washington's public trust doctrine with that of other states that also recognize the Institutes of Justinian as an ancient source of public trust principles. Finally, the state legislature's repeated identification of a dearth of public recreational access to tidelands also supports this premise, as the scope of Washington's public trust doctrine is shaped by the needs of the state's citizens.

Two Washington residents decide to go fishing, one on foot and the other by boat.1 The first individual accesses state-owned tidelands within a state park, but then continues walking beyond the state park boundary until he reaches a promising location on unsubmerged, privately-owned tidelands from which to cast his line. The second individual launches his boat from the state park and then tries his luck while floating over the same private tidelands on which the first fisherman stands just a few feet away. The owner of the tidelands, incensed by the presence of these strangers on his property, calls the police. Both individuals inform the arriving officer that the public trust doctrine protects the public right of fishing from both tidelands and tidewaters, regardless of the tidelands' private ownership. Yet, under the holding of a recent unpublished decision from the Washington State Court of Appeals,2 the officer would allow the second individual to continue fishing from his boat but arrest the first individual traveling on foot for trespass.

The majority of tidelands within Washington State are privately owned. Washington entered the Union with ownership of all tidelands within its borders up to and including the line of ordinary high tide, with the exception of those areas previously reserved by the federal government.3 The Washington Constitution, while establishing state ownership of the state's 2337 miles of tidelands,4 provides no guidance as to their management. Intent on encouraging development, the state transferred sixty-one percent of its tidelands into private ownership between 1890 and 1979.5 A recent study estimates that approximately seventy-three percent of the Puget Sound coastline is currently in private ownership.6 Yet approximately two-thirds of Washington's population lives in the counties bordering Puget Sound, with some eighty-five percent of this subpopulation residing within ten miles of the Puget Sound shoreline.7

In 1987, the Supreme Court of Washington-perhaps responding to the extensive transfer of tidelands into private ownership during the previous century-declared in Caminiti v. Boyle8 "that the [public trust] doctrine has always existed in the State of Washington. …

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