Unlike other states, many of Washington’s shorelines have a reputation as rocky, cold, salty shores where you’re better off wearing boots and a raincoat than sandals and swimsuits. Also unlike other states, public access to our shorelines is not a given.
The legality of crossing the intertidal area—the space between high and low tides—is often fuzzy in Washington State. Whether a beach is open to the public often depends on when the land was purchased and the specific language in the deed of the property.
Until 1971, people were able to purchase the tidelands extending from their property. That means that today there may be a mixture of public and private spaces in one continuous stretch of shore. The water itself is public: if the tide comes in, anyone can pass by on the water, regardless of low-tide rights. But a person walking along the beach at low tide can be refused entry once the space no longer has water over it. There is even some debate over whether a boater can rightfully step out of their boat to stand on the bottom. Confused? You’re not alone!
The Public Trust Doctrine
When Washington achieved statehood in 1889, the federal government deeded the new state ownership of its tidelands under the Equal Footing Doctrine. The Washington State Constitution included a section specifically about tidelands, asserting state ownership of “the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide.” However, just a few years later, the state began selling off those public lands to private owners. The state’s sale of public tidelands continued until 1971. By that point, about 60% of the tidelands on Puget Sound had been sold into private ownership, according to a 1991 study from the Washington State Department of Ecology.
The government reserved some rights over these now privately-owned tidelands through what is known as the “Public Trust Doctrine.” This legal principle protects certain cultural and natural resources for public use, empowering the government to preserve them on behalf of the citizenry. Other states like California and Oregon have used the Public Trust Doctrine to grant people access across all tidelands.
The State of Washington, however, never fully clarified what this doctrine means for our state’s intertidal zones. Between 1915 and 1971, dozens of court cases, legislative acts, environmental regulations, and statewide planning efforts created a confusing mess of legal precedents and rules. This has left people who made their living on the water—particularly shellfish farmers, who operate their businesses in the tidelands—as well as recreational users with pressing questions about the legality of the intertidal zone.
Photo Credit: Mark Downey
Oysters and Tribal Treaty Rights
Oyster farming has been an important industry for Washington since before statehood, and the question of who owns the oyster beds has come up repeatedly in Washington’s history. Just after statehood, the Washington State Legislature passed two acts that allowed oyster farmers to purchase the lands on which they were already working, provided that no natural oyster beds existed. However, if they used those lands for anything other than oyster farming, they would revert to the state. This led to a tremendous expansion of oyster farming in Washington State.
These acts, however, ran counter to the five treaties enacted decades prior with the Tribes that have existed in Washington State since time immemorial. These treaties affirmed the rights of Tribes to fish and gather shellfish in their usual and accustomed places. Over the next 70+ years, Tribes would have to fight oyster growers, game wardens, and private owners over their right to fish.
The 1974 Boldt Decision reaffirmed these rights and allocated 50% of the annual catch to treaty Tribes. Then, in 1994, Judge Edward Rafeedie affirmed that Tribes also retained the right to harvest from what had previously been “private” oyster beds. After extensive negotiation, the treaty Tribes and commercial growers signed an agreement in which the Tribes agreed not to harvest from commercial beds in exchange for $33 million to buy and lease tidelands for their own use. The Tribes also committed to “making enhancements to all shellfish resources on public beaches for the benefit of all,” according to the book Heaven on the Half Shell.
Today’s Tidelands
Today, Tribes continue to harvest shellfish for ceremonial and subsistence purposes, according to the Northwest Indian Fisheries Commission. Non-Tribal private property owners are also allowed to harvest commercially but must be licensed to do so by the Washington State Department of Fish and Wildlife. Treaty Tribes and the State of Washington work together to ensure that the total harvest will never go beneath the level needed to maintain the shellfish population into the future.
In 1971, Washington State’s legal code ended the sale of tidelands and shorelands into private hands. Instead, the new law provided opportunities for leases limited to 55 years.
By the time these new laws passed, an estimated 71% of tidelands had already been sold into private ownership. Today, most of these are private beaches. In addition, 2,100 acres of state-owned aquatic land are leased for aquaculture. According to the Department of Natural Resources, about 80% of the commercial aquaculture leases in Washington are held for oystering.
So, Can I Walk on the Beach or Not?
State law does impose some regulations on privately-owned tidelands (similar to building codes and environmental protection laws) but owners are legally able to prevent people from trespassing onto their beaches during low tides as they would any other part of their property. Many property owners don’t mind folks walking along their beaches as long as they don’t cause a disturbance and stay near the low tide line. Problems can arise, however, when beach walkers push above the high tide line onto lawns or linger too long on private lands.
The extensive legal and legislative history of tidelands in Washington makes “can I walk on this beach?” a complicated question. On one hand, Washington State has repeatedly affirmed private ownership of tidelands and provided opportunities for aquaculture to take place. On the other, it has also been guided by the Public Trust Doctrine and preserved the public use of tidelands and shores with the cessation of sale and protection of access to beaches.
If you’re planning a walk along the shore, finding a public beach is the safest bet. Visit one of the 95 Washington State Park properties within the Maritime Washington National Heritage Area or peruse the Washington State Department of Ecology’s map of all the public beaches in the state. When in doubt, look around for signage that governs specific access, and be aware of where you’re walking. Don’t linger in front of homes, stick towards the low tide line, and always practice responsible recreation.
