Forbidden shores

After recently visiting Buccaneer Bay on the Sunshine Coast with his family, a friend and experienced sailor contacted us with a question.

With his wife and two young boys, he anchored near Grassy Point and went ashore to explore the beaches and tidal pools in the narrow drying pass between North and South Thormanby islands.

They had a marvelous time and the family considered expanding their adventure to Gill Beach at the south end of Buccaneer Bay. But surveying the beach by binoculars our boaters saw signs posted in front of holiday homes along the beach warning the property was private and to keep away. They worried that might mean the beach was private and cancelled plans to expand their explorations.

When he contacted us, he wondered if the land was private and, if so, why we had made no mention of it in our cruising guides. Of course, I made no mention of it because virtually all foreshore — the intertidal zone between high and low water — in British Columbia is owned by the province and is public land.

My sailing friend is American. He had thought public access to tidelands was permitted in BC, but had doubts when seeing the signs posted along the beach.

Indeed, some upland property owners in BC seem to resent pedestrian traffic within adjacent foreshore and put up somewhat threatening signs, but they have no right to block access from a seaward landing.

There are several anchorages in our Salish Sea Pilot guides where stern tying is recommended despite the land ashore being privately owned. The line to shore technically must be fastened to a rock or log within the foreshore. If at a high point within the tidelands, your point of tying will be submerged only briefly, if at all.

Tidelands in Washington and Oregon

In Washington, tidelands tend to be owned by whoever owns the adjacent upland property and they are within their rights to block pedestrian access to it. Like most everything in the US, things are different from state to state. Oregon is more like BC where foreshore ownership and access is concerned.

Wondering about the reasons for this, I looked into it a bit. I’m a sailor who wants to eat lunch on the beach, not a legal expert, and don’t pretend to be one. What I know about the law comes from reading documents online.

But the legal questions about aquatic land are a complex and fascinating weave of ancient and modern law. It gives people like me a hint of what people mean when they say they love the law.

When US territories achieved statehood, they were given the same deal that the original 13 colonies were granted — all tidelands belonged to the new state. There were some exceptions, such as tidelands previously reserved for federal use, but these were relatively insignificant in the overall picture.

Oregon was granted statehood in 1859. In the ensuing years, a relatively small amount of public tideland was sold to private landowners, mostly for resort development. However, the Oregon Beach Bill in 1967 reestablished public ownership of tidelands and prevented owners of adjacent upland property from blocking access.

In the interests of promoting private development, Washington took a different tact after it became a state in 1889. Over the next century, title to some 70 percent of tidelands was transferred to private landowners.

This complicates things for cruising boaters, with shore access generally restricted to parks and shoreline street ends. Some lovely anchorages offer no shore access at all.

But then comes the Public Trust Doctrine, a bit of British common law inherited by the US, and the same place from where BC gets its laws governing use of aquatic lands.

The doctrine states waters are a public resource for all to access and use. This right cannot be invalidated regardless of who holds title to the land beneath a waterway.

Rulings by the Washington Supreme Court have upheld the public’s right to navigate, fish and engage in activities such as waterskiing over aquatic lands affected by tides.

Currently, a landowner has the right to stop you from walking upon tidelands adjacent to his upland property, but cannot complain if your boat floats in a few inches of water over those same tidelands.

Some legal scholars believe that the doctrine logically also guarantees pedestrian access to tidelands to conduct water-based activities, perhaps including recreational use, but this has not been legally tested before Washington’s state supreme court.

It is conceivable that unrestricted pedestrian access to tidelands in Washington is only a court ruling away.

That would be good news for mariners who need to take their shih tzu for a walk.