January 27, 2022
Keep walking, or keep off? Guemes beach-walking pushes question of private property versus public access
Lauren Gallup

Open beach, public access … or not? The courts are the next step toward resolving some heated disagreement on Guemes Island about whether tradition and public domain principles or private property law take precedence on tidelands around the Salish Sea. (Photo courtesy Pete Haase)

January 27, 2022
Keep walking, or keep off? Guemes beach-walking pushes question of private property versus public access
Lauren Gallup

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Folks walking along the Guemes Island shoreline lately are likely to spot “Keep on Walkin’ ” signs with a cartoon drawing of a person strolling on the sand.

The sign, however, isn’t encouraging light, outdoor exercise but is the slogan of Friends of Guemes Islands Shorelines [FOGIS], a community nonprofit suing property owner Kevin Duncan for the right to walk across his tidal shoreline property.

In the suit filed in Skagit County Superior Court, FOGIS argues that customary use and the Public Trust Doctrine allow the public to walk below the “ordinary high water mark [OHWM]” on Duncan’s private tidal shoreline.

How to define the area where the water meets the land is fairly simple: uplands are the portion of shorelands never covered by water; bedlands are portions that support and lie under bodies of water and are always covered by water; and tidelands are shorelands affected by tidal flow and covered and uncovered by water depending on tides.

On the state Department of Ecology website, OHWM is defined as the point where the high tide normally rises along the shoreline. According to Ecology’s Curt Hart, that “​​equates to a zone, below which is considered the aquatic environment, as indicated by the presence and action of water and/or water-tolerant vegetation.”

However, according to Ecology, determining OHWM is a complex, site-specific process depending on a wide range of variables. 

The underlying issue in the lawsuit is whether others have the right to walk along this area when it is part of private property — something that has been decided for all other Pacific Coast states and for the state’s oceanfront beaches, but not yet those that surround the Salish Sea.

‘A Northwest tradition’

“The legal doctrine of customary use would recognize that the practice of walking along the shoreline is a Northwest tradition,” according to Pete Knutson, a member of FOGIS. The organization contends that their members have walked the shorelines along or adjacent to Duncan’s property for decades. 

The Public Trust Doctrine, derived from English common law, “protects public ownership interests in certain uses of navigable waters and underlying lands,” notes Ecology’s website. FOGIS argues that this means the public has access to shorelines.

Hart couldn’t comment on the specific case on Guemes, but he said the Public Trust Doctrine at least makes it clear that someone in a boat has access to land when navigating, as long as they stay in the boat. 

“It’s not real clear whether or not you have access to walk on somebody’s private tidelands,” Hart said. 

Public-private patchwork

According to the suit, Duncan purchased the property in summer 2018. Beginning in about 2020, the suit claims,Duncan has barred members of the public from crossing his private tidelands.

The suit cites as precedent a state attorney general decision in 1970 recognizing the right of the public to use ocean beaches according to customary use. FOGIS argues that walking along Guemes Island shorelines should be protected as customary use.

The attorney general, however, later qualified his decision as not applying to Puget Sound, Knutson said.

Chad Yunge, Ecology’s senior shoreline planner for the Northwest region, said there’s a patchwork of private and public ownership for tidelands below the OHWM because the state sold aquatic areas up until the 1970s.

“Whether or not the public has the right to walk on those tidelines, let’s say at a low tide, is something that in Washington state is a matter of unsettled law, at least within the Salish Sea,” Yunge said.

Customary use has been recognized to allow beach access in other states, including Florida. Washington is the only state on the Pacific coast that does not protect the public’s right to access the beach.

“We are in sort of a limbo state, as far as the public’s right to walk the beach,” Knutson said. “We want to get the same thing that all the other Pacific states have.”

Complaints

The FOBIS suit also argues that Duncan has prevented members of the public from walking along the shoreline using “means of force and threatened violence.”

Duncan filed a complaint with the Skagit County Sheriff’s Department about a trespassing violation that he said occurred in May 2020.

According to the Skagit County sheriff’s incident report, Duncan reported two individuals trespassing and told Skagit County deputy sheriff Steve Gonzales that one “chest bumped” him when he confronted her. 

In the incident report, Gonzales said he had received an email earlier in May from a woman who said she had heard a shot when walking in the area, and who said other people had reported that the property owner regularly fired shots, they contended, to intimidate people walking on the beach. Duncan told Gonzales that he does target practice on his property but did not on the day of the trespassing. He later sent an email saying he would have been at work that day and could not have been shooting.

In the incident report, Duncan told the deputy sheriff that “he owns the entire beach and he’s tired of people being on the beach and stated he wants his privacy and wants nobody on it.”

According to court documents obtained by Salish Current, Duncan is currently facing a citation for malicious mischief in the third degree in Skagit County district court for an incident with another island resident in January 2021.

The resident said in her complaint that she had been walking along the beach when Duncan’s dog approached her. Duncan confronted the resident and said she was trespassing. The woman told Duncan she did not know she was trespassing and claimed that, when she tried to walk away, Duncan “body-blocked her” and “chest-bumped” her, and threw her cell phone in the water, too deep for her to retrieve.

Duncan had also reported the resident trespassing on his property, and denied touching her or having any involvement with the cell phone. 

The beach walker was not cited for trespassing in the second degree by the prosecuting attorney, who determined that she did not know she was trespassing. However, Duncan was cited for malicious mischief in the third degree. A trial date has been set for April.

Island culture and legal definitions

Knutson’s said his family has lived on Guemes Island since the 1930s. From that time, he said “it was always understood that walking the beach was encouraged, and was part of island culture” — and that the public could walk below the high-tide line even though the state had sold tideland rights.

“My family owns tidelands, and we would never consider interfering with somebody’s afternoon stroll on the beach,” Knutson said.

Duncan owns his shorelands by virtue of owning his tidelands. In a cross motion, his attorneys claim that members of the public have violated the Duncan family’s privacy rights, and that a protective order that Duncan had obtained against a neighbor has been violated.

His cross motion also says that members of the public have left trash and human and pet feces on his property, have removed his “No Trespass” signs and have confronted Duncan and his wife.

The defense argues against any customary use of “privately owned inland shorelines” by referencing Washington’s history of selling tidelands, and concludes that “FOGIS perverts the concepts of good will and community in order to impose on Duncan’s personal life and private property, and it distorts ancient legal doctrines to suit its needs.” 

The judge has ruled for a jury trial. Knutson said attorneys for FOGIS and Duncan are in discussions, and there is also a possibility for a direct appeal to the appellate level.

Knutson feels this case has statewide significance, and therefore, should be decided at the highest level.

When Salish Current reached Duncan, he said he had no comment as the legal matter was ongoing.

— Reported by Lauren Gallup

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photo: Amy Nelson © 2022
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