7/11/2008 10:00:00 AM Public beach access grows contentious
Justin Burnett / The Whidbey Examiner
Greenbank resident Al Hall is a resident of Holmes Harbor Estates. For a fee, he is allowed to use keys to a gate that allows access to a private beach and tidelands. Public access to Whidbey Island shorelines is likely to become more contentious as the Island’s population continues to grow.
By Justin Burnett Examiner Staff Writer
A dispute over whether access to a public beach off Wonn Road in Greenbank is in public or private ownership has prompted growing concern over control of public access throughout Whidbey Island.
While disagreements over property boundaries and right-of-way issues have forced Island County to intervene and put the matter in the hands of the Island County Prosecutor's Office, the squabble boils down to one issue - public access to Whidbey Island's shorelines.
And as the Island's population continues to grow - and access to beaches becomes more difficult - some local residents warn this kind of conflict will happen more frequently and become more contentious than ever.
What's legal, what's not
When a public access issue comes up, conflict typically arises because people are unfamiliar with the law, said Erik Nedergard, a shoreline ownership research specialist for the Washington Department of Natural Resources.
"People are often acting on misinformation," Nedergard said.
Years ago, Nedergard said he and a co-worker were crossing tide flats when they were greeted by a man with a shotgun. They didn't realize it, but the man owned the tidelands and had every right to kick them off his property.
"It wasn't pointed at us, but he said 'get the hell off my tidelands,'" Nedergard said.
Unlike some coastal states, Washington's tidelands and beaches are not all in public ownership. The state Legislature elected to sell its tidelands and beaches in 1889.
The practice continued for about 80 years, until the Legislature changed the law in 1971. Today, an estimated 60 to 70 percent of Washington's tidelands are in private hands. Public access is available only to about 30 percent of the state's shorelines, Nedergard said.
A complicating factor is that boundary lines are different depending on when the property was transferred from public to private ownership. Tideland parcels sold by the state between 1889 and 1911 extended to the mean low tide - a little less than halfway between the highest and lowest tide lines. But parcels sold between 1911 to about 1971 extended to the extreme low tide - the farthest mean point of water recession.
When in doubt, people who want to visit local beaches should limit their beach visits to tidelands that are clearly in public ownership, such as those extending straight out from public parks or public boat ramps. Anyplace else and you may be trespassing on someone's property, no matter how long you have been doing it, Nedergard said.
"Just because you were doing it for 30 years doesn't make it right," he said.
Losing public access
While there is little public tideland left in Washington, the situation on Whidbey Island is a little different, according to Don Meehan, director of Island County Washington State University Extension.
"We don't know with precision, but it's probably about 50/50," Meehan said.
In 1994, extension office staff and volunteers embarked on the daunting task of sifting through county maps in an effort to identify just what is public and what is not. They pored over maps describing about 7,700 shoreline parcels in Island County.
Eventually, they identified 57 Whidbey Island public-access points, which were then published in a book titled Getting to the Water's Edge.
But about a fourth of the access points identified as within public ownership were left off the map, mostly because they're at road ends without public parking, or because the access leads to high-bank shoreline.
But according to Meehan, about 15 low-bank sites that would have provided convenient public access were left off the final map because the ownership of the land was in doubt.
"Wonn Road is obviously one of them," Meehan said.
In the Wonn Road case, Greenbank resident Glen Russell has argued that another resident, Bruce Montgomery, is trying to block access to a public beach and tidelands by building a wall.
Russell believes that the driveway access to Montgomery's land belongs to the county. He said the path is actually the end of Wonn Road, which was once called Greenbank Road and served as the historic connection to the old Greenbank wharf, which was removed years ago.
Under state law, any public road that abuts a shoreline is considered legal public access to the beach. The law also says the county may not abandon or vacate such a road.
The issue has yet to be resolved because both Russell's and Montgomery's claims are supported by different but conflicting legal county documents.
"It's probably going to take a court action to clear this up," said Bill Oakes, Island County Public Works director.
Another issue that has yet to have its day in court is the issue of walking across private tidelands, Island County Planning Director Jeff Tate said. The issue is whether property owners can legally keep people from crossing private tidelands to reach public tidelands. According to public trust doctrine, the answer is no, Tate said.
"It says you can't close them off so no one can walk on them," Tate said.
Under the doctrine, Tate claimed many of the signs that litter Whidbey's beaches that say, 'private tidelands and beach,' go beyond their authority.
However, the doctrine is an interpretation of state law and has yet to be challenged in court.
Access denied
The Wonn Road access issue is one of a number of ownership disputes on Whidbey Island. Whenever they come up, Oakes said, the county hopes to preserve public access because there are so few left.
"That's why we are willing to fight Wonn Road," Oakes said. "It's at least our opinion we own some of it."
The county has fought such battles before, one of which occurred over Hidden Beach, which is a few miles north of Greenbank off North Bluff Road. Shoreline landowners on the beach felt it was private property and sought to restrict public access.
But the road that leads to the beach, Hidden Beach Drive, is a county road paid for by taxpayers. The situation escaped a court battle but did require mediation from the state Department of Natural Resources.
They ruled in favor of the county and Oakes counts it as a victory for public access.
The county is also proactive when it comes to purchasing shoreline properties that come up for sale.
"The only way we're going to get more beach access is by buying it," Oakes said.
However, some low-bank beach access points that are in county ownership remain inaccessible for other reasons. For example, Trails End Lane, off North Bluff Road, is a county road that extends to the water and public tidelands but access is completely blocked off by trees and brush.
Beaches for the wealthy
Most agree that the challenges surrounding public beach access will likely only get worse.
"Is the problem going to go away? No. It's going to intensify," Nedergard said.
As population increases on Whidbey Island, so too will local property values. And with more demand than supply, only the wealthy can afford beachfront property, Meehan said. And if local government fails to protect public access to beaches, eventually only the wealthy will be able to enjoy the benefits of living on an island.
"It's not the poor people who live on the shorelines," he said.
Increasing controversy over beach access may be the inevitable result.
"Wonn Road might be the canary in the coal mine here," Meehan said.
Both Meehan and Nedergard said that things could be different if the state were to put a higher priority on the preservation of public access by funding projects that help resolve questions of property ownership.
"We didn't bring in the rocket scientists to put this thing together," Meehan said, referring to the guidebook developed by the WSU Extension office.
Put together with funding from a $10,000 state grant, the book is the only one of its kind in the state, and the research behind it also has provided information about public access points that Island County government didn't even know it owned.
"I wish we had the money to do more research to locate the beach accesses we missed," Meehan said.
