By WILSON BINGER

As an owner of tidelands, as well as someone who enjoys a walk on the beach, I have wondered about our rights, both as an owner and as a walker. What does owning tidelands mean? Do we have a legal right to walk on private tidelands? These are legitimate questions in Washington, but not in many other states where the tidelands are all publicly owned. Washington chose to sell its tidelands until 1967. Not all the tidelands were sold, which resulted in a mix of private and public tidelands around Whidbey Island.

Owning tidelands is not the same as owning uplands. Tidelands are defined by law as the land between the ordinary high tide and the extreme low tide. As such, it is land that is covered by water some of the time, perhaps even most of the time. And, unlike upland property, which is described very specifically with exact boundaries, tidelands are generally described relative to the adjacent upland property, and not with specific boundaries. Also, we really own tidelands only part of the time. When the tide is in, anyone can be on the water over “our” tidelands. When the tide goes out, the land again becomes private.

What does this private ownership mean for people wanting to walk the tidelands, including those of us who own tidelands? Generally, we will be walking across a mix of private and public tidelands. Obviously we all have a right to be on and use the public tidelands, so walking across them is okay. What about the private tidelands? This is a more difficult legal question, but there are two legal principles that could provide a basis for allowing the public to cross private tidelands. One is the Public Trust Doctrine, and the other is Prescriptive Easement.

The Public Trust Doctrine

• Under this principle of law, the state has a superior right to protect the public interest on all tidelands, including those in private ownership. This can include walking on private tidelands to reach public tidelands or the water.

Prescriptive Easement

• Under this principle of law, there exists a public easement across privately owned tidelands where it can be shown that the public has regularly used the tidelands. Since there are groups and individuals dedicated to walking all the beaches of Island County, it is clear that people have crossed all the privately owned tidelands around Whidbey Island, which would be the basis for a prescriptive easement.

Neither of these principles has been explicitly ruled on for the tidelands of Whidbey Island. By the same measure, neither principle has been challenged by the owners of tidelands of Whidbey Island. As with all things legal, trying to establish the right of people to walk across private tidelands would be expensive and time consuming, so it would be better for all if the courts didn’t get involved.

Many, perhaps most, tideland owners have no problem with people walking across their tidelands as long as the walkers show respect and are just walking. Some have posted signs telling people it is okay to use or walk on their tidelands. Others don’t post or mark their tidelands and don’t say anything except maybe a “hello” to people walking across. After all, we are all at the beach for the same reason — because we enjoy the beach. The public should respect privately owned tidelands; people should avoid doing more than just walking without express permission, and they should not leave or take anything from the tidelands.

If one wants to picnic or fish, make sure that the tidelands where you stop are public. When in doubt, don’t stop. And those of us who own tidelands shouldn’t let someone walking across our tidelands ruin our day, especially because a few hours later, when the tide is in, the same person could be in the same place in a boat and we wouldn’t and couldn’t say anything.

Editor’s note: Wilson Binger is a Greenbank resident.

Binger