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AGO 1970 No. 27 - December 14, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington

WATER - PUBLIC LANDS - RIGHTS OF PUBLIC TO USE OF OCEAN BEACHES

(1) Without regard to any other property interests or rights which the state may have, members of the public have the right to use and enjoy the wet and dry sand areas of the ocean beaches of the state of Washington by virtue of a long-established customary use of those areas. 

(2) The right of members of the public to use and enjoy the wet and dry sand areas of the ocean beaches of Washington by virtue of a long-established customary use of those areas does not presently extend to such ocean beach areas as are within the exterior boundaries of the Quinault Indian Reservation.

                                                              - - - - - - - - - - - - -

                                                               December 14, 1970

Honorable Jonathan Whetzel
State Representative, 43rd District
1411 Fourth Avenue Building
Seattle, Washington 98101

                                                                                                                 Cite as:  AGO 1970 No. 27

Dear Sir:

            You have requested the opinion of this office on a question which we have subdivided and paraphrased as follows:

            (1) Without regard to any other property interests or rights the state may have, does the public have the right to use and enjoy the wet and dry sand areas of the ocean beaches of the state of Washington by virtue of customary use?

            (2) To the extent that question (1) is answered in the affirmative, does this conclusion presently apply to such ocean beach areas as are within the exterior boundaries of the Quinault Indian Reservation?

            We answer your first question in the affirmative as explained in our analysis, and your second question in the negative.

                                                                     ANALYSIS

            Question (1):

             [[Orig. Op. Page 2]]

            By your letter you have limited your request to the application of the doctrine of customary rights to the ocean beaches of this state.  Accordingly, we will not discuss in this opinion any of the other theories which might also support the right of the public to the free use and enjoyment of the ocean beaches.  Likewise, consistent with the limitations expressed in your question, we shall not deal with any other area of the state save the beaches of the Pacific Ocean, from Cape Disappointment at the mouth of the Columbia River north to Cape Flattery.  Furthermore, we shall not deal with any questions of title, nor of the location of the line dividing the state owned tidelands from the uplands, whether in private or public ownership.  We shall limit ourselves, in other words, strictly to discussing the public's customary use of the ocean beaches, and whether such use can be enjoyed free from any hindrance or restriction on the part of private landowners.

            You have asked whether the public has the right to use and enjoy "the wet and dry sand areas of the ocean beaches."  For purposes of this opinion we adopt the following definitions of the areas concerned:1/

             Wet Sand Area That area over which the tide ebbs and flows on a regular, daily basis; generally below, or seaward of, the line of mean high tide.

            Dry Sand Area That area lying between the line of mean high tide and the line of permanent visible vegetation.

            Your request, as you point out in your letter, is prompted by the recent decision of the Oregon Supreme Court in State ex rel. Thornton v. Hay, 89 Ore. 887, 462 P.2d 671 (1969).2/   That case is, therefore, the logical jumping off point in our discussion.  InHay, the Oregon Supreme Court affirmed a decree of the Circuit Court for Clatsop County enjoining the defendants Hay from constructing fences or other improvements ". . . in the dry-sand area between the sixteen-foot  [[Orig. Op. Page 3]] elevation contour line and the ordinary high-tide line of the Pacific Ocean,"3/ on the basis of the English doctrine of custom.  In essence, the Oregon Supreme Court held that because the public had customarily and habitually used the beaches of the Pacific Ocean in that state as a public recreational area at least since the advent of recorded history in the Pacific Northwest, such use had ripened into the status of law, applicable along the entire coast of the state of Oregon from the mouth of the Columbia River to the California border.4/

             Before proceeding further, we should note the historical fact of the public use of the beaches which the Oregon Supreme Court found to exist.  The court said:

            "In order to explain our reasons for affirming the trial court's decree, it is necessary to set out in some detail the historical facts which lead to our conclusion.

            "The dry-sand area in Oregon has been enjoyed by the general public as a recreational adjunct of the wet-sand or foreshore area since the beginning of the state's political history.  The first European settlers on these shores found the aboriginal  [[Orig. Op. Page 4]] inhabitants using the foreshore for clam-digging and the dry-sand area for their cooking fires.  The newcomers continued these customs after statehood.  Thus, from the time of the earliest settlement to the present day, the general public has assumed that the dry-sand area was a part of the public beach, and the public has used the dry-sand area for picnics, gathering wood, building warming fires, and generally as a headquarters from which to supervise children or to range out over the foreshore as the tides advance and recede.  In the Cannon Beach vicinity,5/ state and local officers have policed the dry sand, and municipal sanitary crews have attempted to keep the area reasonably free from man-made litter.

            "Perhaps one explanation for the evolution of the custom of the public to use the dry-sand area for recreational purposes is that the area could not be used conveniently by its owners for any other purpose.  The dry-sand area is unstable in its seaward boundaries, unsafe during winter storms, and for the most part unfit for the construction of permanent structures.  While the vegetation line remains relatively fixed, the western edge of the dry-sand area is subject to dramatic moves eastward or westward in response to erosion and accretion.  For example, evidence in the trial below indicated that between April 1966 and August 1967 the seaward edge of the dry-sand area involved in this litigation moved westward 180 feet.  At other points along the shore, the evidence showed, the seaward edge of the dry-sand area could move an equal distance to the east in a similar period of time."  (462 P.2d at pp. 673-674.)

             [[Orig. Op. Page 5]]

            The public's use of the ocean beaches in this state has been substantially the same as that found to exist by the Oregon Supreme Court on the beaches of that state.  The fact of such use, along with its nature and continuity, is a matter of such general public knowledge in this state, that we have no hesitation in taking notice of its existence.6/

            The requirements for the application of the doctrine of custom are set out in 1 Blackstone, Commentaries 75-78.  They can be summarized as follows:  A custom, in order to achieve the status of law, must be ancient, continuous, peaceable, reasonable, certain, general (that is, obligatory on each member of a class to which it has reference), and not repugnant to or inconsistent with other customs or other law.7/   The public use of the wet and dry sand areas of the ocean beaches in this state meets those requirements.

            The customary public use of our beaches is ancient.  In making this statement we are aware that some English courts have indicated that a custom, to be applicable as law, must have existed from the time of legal memory in the British Isles, or the commencement of the reign of Richard I, the year 1189, (see,Mounsey v. Osmay, 159 Eng. Reprint 621) but such a rule is obviously inappropriate in a nation which has not yet celebrated the 200th anniversary of its political existence.  In that regard we think the reasoning of the Oregon Supreme Court in Hay, supra, to be more correct.  That court said:

             [[Orig. Op. Page 6]]

            ". . .  In any event, the record in the case at bar satisfies the requirement of antiquity.  So long as there has been an institutionalized system of land tenure in Oregon, the public has freely exercised the right to use the dry-sand area up and down the Oregon coast for the recreational purposes noted earlier in this opinion."  (Emphasis supplied.)  (462 P.2d at 677.)

            The Oregon court further said, in recognizing and rejecting the argument that the doctrine of custom was inappropriate because of the relative youth of that state:

           "On the score of the brevity of our political history, it is true that the Anglo-American legal system on this continent is relatively new.  Its newness has made it possible for government to provide for many of our institutions by written law rather than by customary law.  This truism does not, however, militate against the validity of a custom when thecustom does in fact exist.  If antiquity were the sole test of validity of a custom, Oregonians could satisfy that requirement by recalling that the European settlers were not the first people to use the dry-sand area as public land."  (Emphasis supplied.)  (462 P.2d at pp. 677-678.)

            The Oregon court's preference for a less restrictive definition of antiquity finds support from the United States Supreme Court.  In the early case ofStrother v. Lucas, 37 U.S. (12 Pet.) 410, 9 L.Ed. 1137 (1838), the court, in construing deeds to land situated in the city of St. Louis, granted prior to the Louisiana Purchase, and based in part on local customs which were followed during Spanish sovereignty over the area, said:

            ". . . in the term 'laws' is included custom and usage, when once settled;though it may be 'comparatively of recent date, and is not one of those to the contrary of which the memory of man runneth not, . . .'"  (Emphasis supplied.)  (37 U.S. at 435.)

            The requirements of continuity, peaceableness, reasonableness,  [[Orig. Op. Page 7]] certainty and generalness are satisfied.  We have previously taken notice of the public's habitual use of the wet and dry sands area of the ocean beaches from the time of the earliest settlement of the Pacific Northwest to date.  Such use has been continuous; that is, it has been exercised "without an interruption caused by anyone possessing a paramount right."8/   462 P.2d at p. 677.  Such use has been peaceable; that is, no member of the public has ever been required to resort to any but peaceable means to participate in whatever recreational endeavor he desired in the wet and dry sand areas of the beaches.  The public's use of the area concerned has been reasonable.  It is clear that the most appropriate use of the beaches is as a public recreational area.  A customary use consistent with that appropriateness clearly satisfies the requirement of reasonableness.

            We find support for that statement in legislative expression.  In adopting the Seashore Conservation Act (chapter 120, Laws of 1967; RCW 43.51.650-43.51.685, as amended by chapter 55, Laws of 1969, Ex. Sess.), the legislature said, in RCW 43.51.650:

            "The beaches bounding the Pacific Ocean from the Straits of Juan de Fuca to Cape Disappointment at the mouth of the Columbia River constitute some of the last unspoiled seashore remaining in the United States.  They provide the public with almost unlimited opportunities for recreational activities, like swimming, surfing and hiking; for outdoor sports, like hunting, fishing, clamming, and boating; for the observation of nature as it existed for hundreds of years before the arrival of white men; and for relaxation away from the pressures and tensions of modern life.  In past years, these recreational activities have been enjoyed by countless Washington citizens, as well as by tourists from other states and countries.  The number of people wishing to participate in such recreational activities grows annually.  This increasing public pressure makes it necessary that the state dedicate the use of the ocean beaches to public recreation and to provide certain recreational and sanitary facilities.  Nonrecreational use of  [[Orig. Op. Page 8]] the beach must be strictly limited.  Even recreational uses must be regulated in order that Washington's unrivaled seashore may be saved for our children in much the same form as we know it today."

            RCW 43.51.655 establishes the Washington state seashore conservation area between the lines of ordinary high tide and extreme low tide, or, where applicable, between the seashore conservation line and the line of extreme low tide.9/

             RCW 43.51.665, which provides for the principles to be followed in administering the seashore conservation area, states, in pertinent part:

            ". . .  Where feasible, the area shall be preserved in its present state; everywhere it shall be maintained in the best possible condition for public use.  All forms of public outdoor recreation shall be permitted and encouraged in the area, unless specifically excluded or limited by the commission.  While the primary purpose in the establishment of the area is to preserve the coastal beaches for public recreation, other uses shall be allowed as provided in RCW 43.51.650 through 43.51.685, or when found not inconsistent with public recreational use by the Washington state parks and recreation commission."

            The requirement of certainty is present.  It is satisfied both by the length and continuity of the public's use of the beaches, by the numbers of people so using the area, as well  [[Orig. Op. Page 9]] as by the character of the land itself, which as a practical matter limits the use thereof to recreational purposes.

            The public's use of the ocean beaches of our state as a matter of right has been general.  Its quality has been the same throughout the length of the seashore of this state, and no individual landowner has ever felt free to exclude the public from the dry sand area fronting on his property, nor are we aware of any other action taken by any individual landowner which in any way evidenced a nonrecognition of the public's rightful use of the wet and dry sand areas fronting on his property.

            The public's use of our beaches is neither repugnant to, nor inconsistent with, any other custom or law.  Rather, it is entirely consistent with, and indeed in part based upon, statutes which have been a part of the law of this state since the turn of the century.  Section 1, chapter 110, Laws of 1901 (RCW 79.16.170), reads as follows:

            "The shore and beach of the Pacific Ocean, including the area or space lying, abutting or fronting on said ocean and between ordinary high tide and extreme low tide (as such shore and beach now are or hereafter may be) from the Columbia River or Cape Disappointment on the south to a point three hundred feet southerly from the south line of the government jetty on Peterson's Point, state of Washington on the north, be and the same are hereby declared a public highway forever, and as such highway shall remain forever open to the use of the public."

            Section 2 of the same act (RCW 79.16.171) provides that no part of the lands mentioned shall ever be sold, conveyed, leased or otherwise disposed of.

            By §§ 1 and 2 of chapter 105, Laws of 1901 (RCW 79.16.160 79.16.161), the same declaration was made applicable to the area between Damon's Point on the north side of the entrance to Grays Harbor, to the mouth of the Queets River; and by §§ 1 and 2 of chapter 54, Laws of 1935 (RCW 79.16.130 79.16.140) from the mouth of the Queets River north to Cape Flattery.   [[Orig. Op. Page 10]] The legislature reaffirmed those highway reservations by § 1, chapter 212, Laws of 1963 (RCW 79.16.172), which reads as follows:

            "That portion of the public highway as established by chapter 54, Laws of 1935, chapter 105, Laws of 1901, and chapter 110, Laws of 1901, lying between the line of vegetation and the line of mean high tide, as such lines now are or may hereafter be, is hereby declared a public recreation area and is hereby set aside and forever reserved for the use of the public."

            While it is true that the legislature, in enacting these statutes, may have held an incorrect understanding as to ownership of part of the land involved (see,Hughes v. Washington, 389 U.S. 290, 19 L.Ed.2d 530, 88 S.Ct. 438 (1968)), it is also true that in so acting the legislature is presumed to have had in mind the immemorial customs of the people of this state.  See,Kreeger's Estate, 277 Pa. 326, 121 A. 109 (1923).  In our state supreme court's decision in the Hughes case cited above, that court, indictum, reached the same conclusion when it said:

            "It was not until the laws of 1901, ch. 105, p. 217, and ch. 110, p. 225, that thepublic's interest in tide and shoreland received legislative recognition."  Hughes v. State, 67 Wn.2d 799, 806, 410 P.2d 20 (1960); rev'd. on other grounds, 389 U.S. 290, 19 L.Ed.2d 530, 88 S.Ct. 438 (1968).

            The court inHughes seems clearly to have been saying that in 1901 the legislature, in enacting the highway reservations, was merely declaring what already existed as a public right.

             [[Orig. Op. Page 11]]

            The public's rights in the ocean beaches have received more recent legislative recognition.  In the seashore conservation act, cited and discussed earlier in this opinion, the legislature again reaffirmed and restated the public's time honored rights to the use and enjoyment of the ocean beaches of this state.  In so far as it dealt with the public's use of the ocean beaches this act must also be held to have been merely declarative of existing rights.

            First, § 8, chapter 55, Laws of 1969, Ex. Sess. (uncodified), provides that:

            "No provision of this 1969 amendatory act shall be construed as affecting any privateor public property rights."  (Emphasis supplied.)

            Secondly, we must keep in mind the rule of law already alluded to, that the legislature when acting is presumed to have in mind the immemorial customs of the people.  Kreeger's Estate,supra.  If the public's use of the ocean beaches in this state has met the requirements for the doctrine of custom, and we have previously stated that it has, then that public use has ripened into the status of law, and as such becomes a part of the common law of this state.  State ex rel. Thornton v. Hay, supra.  It is the rule in this state, as well as every other jurisdiction which has accepted the English tradition, that the common law must be allowed to stand unaltered as far as it is consistent with a reasonable interpretation of any new law, and it must not be presumed that the legislature, in enacting a new law, intended to make any innovation on the common law without clearly manifesting such intent.  See,Green Mountain School District No. 103 v. Durkee, 56 Wn.2d 154, 351 P.2d 525 (1960).

            The doctrine of custom is not foreign to this state, and its application in these circumstances is not without clear precedent in other jurisdictions.

            It is fundamental that the common law of England has been  [[Orig. Op. Page 12]] received by, and is a part of the law of this state.  See, Laws 1862, p. 83, § 1; Laws 1877, p. 3, § 1; Code 1881, § 1; § 1, chapter 17, Laws of 1897; and RCW 4.04.010, which presently reads as follows:

            "The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and conditions of society in this state, shall be the rule of decision in all the courts of this state."

            Further, its precepts are capable of being noticed by our courts.  RCW 5.24.010.  At the time of its reception by this jurisdiction, custom, and in particular, the public's right to use certain beaches of England and Scotland by virtue of custom, was a part of the English common law.  In the early case ofSmith v. Earl of Stair, 6 Bell. 487, also reported in the Scots Revised Reports, House of Lords Series, Vol. VII, p. 878 (House of Lords 1849), a question similar to ours was presented to the highest court of Great Britain.  In that case, the landowner had erected a wall "within the belt of loose sand" (read dry sand) on a beach in Scotland.  The residents of the neighboring town of Porto Bello and of the surrounding countryside had "for time immemorial been in the habit of using the sands for the purpose of bathing, riding, and walking, and the Royal Troops have been in use to be exercised and reviewed upon them."  6 Bell., p. 488.  The House of Lords, in holding that the wall was wrongfully erected and ordering that it be removed, said, speaking through Lord Campbell:

            ". . .  Therefore, as often as the ordinary spring-tides rise to it, the inhabitants of Porto-Bello, Leith, Musselburgh, and the adjacent villages, are cut off, not only from the means of recreation but from the right of way which they have immemorially enjoyed.

            ". . . looking only to the record, it is quite clear that the public are, and have long been, in the enjoyment of these rights.  But it has often been held in England, and the doctrine resting on sound principles it must be equally applicable to Scotland, that a party in possession, even with a doubtful title, shall be  [[Orig. Op. Page 13]] protected against a wrong-doer by an injunction.  Therefore, irrespective of the right of the Crown to the property of the sea-shore, and without touching the question whether the sea-shore extends to the flood-mark of ordinary spring-tides, or only of neap-tides, I am of opinion that, by reason of the easement enjoyed by the public over the locusinquofrom which they are now excluded, the Officers of State had a right to apply for this interdict, and that it was properly granted in their favour."  (Emphasis supplied.)  (6 Bell. pp. 499-500.)

            In another English case, decided subsequent to our statehood, the English Court of Chancery recognized the right of a group of fishermen to dry their nets on the "beach ground" next to the foreshore, based on long and customary use.  See, Mercer v. Denne, 2 Chancery Div. 538 (1905).

            The doctrine of custom is not unknown to the courts of this state.  Its recognition in other circumstances is, in fact, as old as the state itself.  In the early case ofThorpe v. Tenem Ditch Co., 1 Wash. 566, 20 Pac. 588 (1889), decided nine months before Washington became a state, the Territorial Supreme Court found the doctrine of prior appropriation in the field of water rights to have been based on a local custom adhered to by all in the locality, and recognized by the United States.  The court further held that statutes which extended the right to appropriate water only to landowners did not restrict the right of prior appropriation where it existed by local customs and the decisions of the courts, where such local customs and laws extended the right not only to landowners but to any others who actually made the appropriation.  In so holding, the court said, at 1 Wash. p. 570:

            ". . .  Local customs of appropriating water may be established by miners' meetings, or by common agreement of all the people in the locality, which latter was its manner of adoption in this case, and the defendants cannot claim that the doctrine of relation shall be given effect against this local custom, to which they agreed in common with all the people then in that locality. . . ."

             [[Orig. Op. Page 14]]

            That decision was followed and adhered to in Isaacs v. Barber, 10 Wash. 124, 38 Pac. 871 (1894), which held that:

            ". . . this state, or at least that portion of it east of the Cascade mountains, was included within the territory where the right to prior appropriation of water for mining and other beneficial purposes was recognized by the courts and the law-making power, and that such right was established by a custom so universal that courts must take judicial notice thereof.

            "We therefore hold that the right to prior appropriation as recognized by said act of congress existed as a part of the laws and customs of the locality. . . ."  (Emphasis supplied.)10/

             The same doctrine had earlier been recognized by the United States Supreme Court, again in the water law field, as giving rise to vested private rights, except as against the government.11/   See,Atchison v. Peterson, 87 U.S. (20 Wall.) 507 (1874); and Basey v. Gallagher, 87 U.S. (20 Wall.) 670 (1874).12/

             It is clear, therefore, that although the Oregon Supreme Court in the Hay case, supra, may have been the first to apply the doctrine of custom in the circumstances here presented, that the doctrine itself, and the vesting of important  [[Orig. Op. Page 15]] rights, both private and public, under it, is neither new nor strange to the courts of this jurisdiction.

            Question (2):

            The secondary question which must be considered in this opinion is, does the doctrine of custom apply in this state so as to support the public's right to use the beaches within the exterior boundaries of the Quinault Indian Reservation at the present time.  We conclude that it does not.

            While this question was not explicitly set forth in your request, the reason that it has been raised in our paraphrasing of your question is obvious.  The public is presently denied the use of both the wet and dry sands area of the beaches fronting on the Quinault Indian Reservation.  Although the public had long been accustomed to use those beaches, the Quinault Tribal Affairs Council, on August 23, 1969, ordered the beaches fronting on its reservation closed to all nonmembers of that tribe.  Its reasons for so doing are not pertinent to this opinion and will therefore not be discussed.

            The Quinault and Quillayute Indians, on July 1, 1855, and again on January 25, 1856, signed a treaty with the United States, which was proclaimed by President James Buchanan on April 11, 1859.  Article II of the treaty provides, in pertinent part, as follows:

            ". . . shall, however, be reserved, for the use and occupation of the tribes and bands aforesaid, a tract or tracts of land sufficient for their wants within the Territory of Washington, to be selected by the President of the United States, and hereafter surveyed or located and set apartfor their exclusive use, and no white man shall be permitted to reside thereon without permission of the tribe and of the superintendent of Indian affairs or Indian agent. . . ."  (Emphasis supplied.)  12 Stat. 971.

            Pursuant to that treaty, President Grant, by Executive Order dated November 4, 1873, withdrew from sale and reserved for the use of the Indians the present Quinault Indian Reservation.  That Executive Order reads, in pertinent part, as follows:

             [[Orig. Op. Page 16]]

            "In accordance with the provisions of the treaty with the Quinaielt and Quillehute Indians, . . . it is hereby ordered that the following tract of country in Washington Territory . . . be withdrawn from sale and set apart for the use of the Quinaielt, Quillehute, Hoh, Quit, and other tribes of fish-eating Indians on the Pacific coast, viz:  Commencing on the Pacific coast at the southwest corner of the present reservation, . . . thence due east, and with the line of said survey, 5 miles to the southeast corner of said reserve thus established; thence in a direct line to the most southerly end of Quinaielt Lake; thence northerly around the east shore of said lake to the northwest point thereof; thence in a direct line to a point a half mile north of the Queetshee River and 3 miles above its mouth; thence with the course of said river to a point on the Pacific coast,at low-water mark, a half mile above the mouth of said river; thence southerly,at low-water mark, along the Pacific to the place of beginning."  (Emphasis supplied.) 1 Kapp. 923.

            The term "low water mark," as used in Indian treaties and executive orders, has been defined as the line of extreme low tide.  See,State v. Edwards, 188 Wash. 467, 62 P.2d 1094 (1936).  That line is the seaward boundary of the Quinault Reservation.  See, also,U.S. v. Moore, 62 Fed. Supp. 660, aff'd., 157 F.2d 760, cert. den., 330 U.S. 827, 67 S.Ct. 867, 91 L.Ed. 1277 (D.C. W.D. Wn. 1945).

            There is no doubt then from the language of the Executive Order that the beaches, including the tidelands, of the Pacific Ocean were included within the exterior boundaries of the reservation set aside for the Quinault Indians.

            The effect of that Executive Order was to withdraw those lands from the public domain, and to reserve them for the exclusive use and occupancy of the Quinault and other named Indian tribes.  If the public had any rights in the beaches fronting on the Quinault Reservation on November 4, 1873, those rights were extinguished by that Executive Order.  InMcFadden v. Mountain View Min. & Mill Co., 97 Fed. 670, rev'd. on other grounds, 180 U.S. 533, 21 S.Ct. 488, 45 L.Ed. 656 (9th Cir. 1899), the court, in holdinginteralia, that a  [[Orig. Op. Page 17]] mining claim could not be filed within the boundaries of an Indian reservation, indicated that the effect of the establishment of such a reservation ". . . was to exclude all intrusion upon the territory thus reserved by any and every person, other than the Indians for whose benefit the reservation was made, for mining as well as other purposes. . . ."  (Emphasis supplied.)  97 Fed. at p. 673.  See, also,Gibson v. Anderson, 131 Fed. 39 (9th Cir. 1904);Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030 (1904); 29 Op. A.G. 171 (1924).  Subsequent to the establishment of the Quinault Reservation, any activity by nonmembers of the tribe within the boundaries of the reservation, including the beaches, must be considered to have been carried out at the sufferance of the tribe.13/

             In saying this we are mindful of the fact that § 1, chapter 105, Laws of 1901 (RCW 79.16.160) and § 1, chapter 54, Laws of 1935 (RCW 79.16.130), discussed earlier in this opinion, and declaring certain beaches a "public highway forever and as such highway shall remain forever open to the use of the public," included beaches fronting on the Quinault Indian Reservation.  As to those beaches, however, we must conclude that these statutes had no effect.  The Quinault beaches were lands over which our state legislature had no jurisdiction or control at the time it spoke.  They were not a part of the public domain at the time Washington became a state in 1889, and no rights to those beaches, or tidelands, passed to the state upon its admission to the Union.14/   They were  [[Orig. Op. Page 18]] owned in fee by the United States of America, and held in trust for the exclusive use and occupation of the Indian residents of the Quinault Reservation.  Nothing this state's legislature did, or could do, could in any way alter that status or diminish the rights of the Indians within the reservation.  InU.S. v. Moore, supra, that question arose in a similar vein.  We quote from the language of that court in its opinion:

            "It is the contention of the defendants herein that since the state and its subdivisions have spent money in schools, roads, harbor improvements, etc., the Federal government, appearing on behalf of the Indians, at this late date can not be heard to question the boundary lines of the Indian Reservation.  This argument was advanced in the Taylor case before Judge Cushman, and was very effectively answered by him in his written decision, wherein he said [33 F.2d 613]:

            "'The expenditure of money by state agencies improving the navigation of the river, the roads upon the reservation, and the government school house, and in payment of a teacher teaching therein, does not affect the question involved.

            "'The authority of the United States necessary to the administration of an Indian reservation does not ooze away or become lost in the mesh of estoppels.'

            "The rights of these Indians were established at the time they became parties to the treaty of 1855.  They became fixed by the promulgation of the presidential proclamation of February 19, 1889, [establishing the Quillayute Reservation] and anything that has occurred from that date on could in no way modify or alter those rights."  (Emphasis supplied.)  62 F.Supp. at p. 668.

            Nor does the partial assumption of jurisdiction over Indian  [[Orig. Op. Page 19]] reservations by this state alter the answer to this immediate question.  In 1953, the United States Congress enacted Public Law 83-280 (67 Stat. 588, 18 U.S.C. 1162, 28 U.S.C. 1360), §§ 6 and 7 of which allowed states to assume civil and criminal jurisdiction over Indians and Indian reservations under certain conditions.  Washington responded to that federal act in 1957, with the enactment of chapter 240, Laws of 1957 (chapter 37.12 RCW),15/ which authorized the assumption of state criminal and civil jurisdiction over Indian tribes and reservations under certain conditions.  This statute was amended by chapter 36, Laws of 1963, to provide for a partial assumption of state jurisdiction over all Indians and Indian reservations, and a complete assumption of such jurisdiction in those instances where a petition signed by the tribal council or governing body of the affected tribe is presented to the governor requesting the assumption of the state jurisdiction.  The partial assumption of jurisdiction was qualified by the following language of RCW 37.12.010:

            ". . . but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, . . ."

            Further, § 6, chapter 240, Laws of 1957, as amended by § 6, chapter 36, Laws of 1963 (RCW 37.12.060), provides, in pertinent part, as follows:

            "Nothing in this chapter shall authorize the alienation, encumbrance, or taxation of any real or personal property, including  [[Orig. Op. Page 20]] water rights and tidelands, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the state to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein; . . ."  (Emphasis supplied.)

            The language of RCW 37.12.060 quoted above was taken directly from 28 U.S.C. 1360 and applies whether the assumption of state jurisdiction over particular Indians or a particular Indian reservation is partial or complete.

            Without going into the history of state jurisdiction over the Quinault Reservation or discussing various instances of litigation which have involved that jurisdiction,16/ it is sufficient for purposes of this opinion to say that the assumption of jurisdiction by this state over the Quinault Indian Reservation is presently only partial, and thus is limited in its application to tribal or allotted land within the Quinault Reservation to the specific areas enumerated in RCW 37.12.010, that is, (1) compulsory school attendance; (2) public assistance; (3) domestic relations; (4) mental illness; (5) juvenile delinquency; (6) adoption proceedings; (7) dependent children; and (8) operation of motor vehicles upon the public streets, alleys, roads and highways.  Nothing in chapter 37.12 RCW would, therefore, support the assertion of any public rights to the use and enjoyment of the Quinault tidelands, which we are informed have never been alienated and are still held in trust by the United States.

            Moreover, while much of thedry sand area within the Quinault Reservationhas been alienated by the Quinaults, and is now held, free of any trust, by non-Indian owners, we cannot say at this time that any customary rights have  [[Orig. Op. Page 21]] been established by the public over those areas.  It is clear that prior to 1963 no such rights could have existed, since the dry sand area, whether held in trust or not, enjoyed the same status vis-a-vis state law as did the wet sand area.  By this state's partial assumption of jurisdiction over the Quinault Indian Reservation in 1963, those areas which were no longer held as tribal or allotted land, nor held in trust by the United States, became subject to state law.  Theoretically, then, public rights based on custom could have begun to ripen at that time.17/   We do not decide whether such rights did begin to ripen at that time, nor what effect the Quinault Tribal Council's closure of their beaches might have had if such were the case.  We do say, however, that a period of seven years is not sufficient to satisfy the requirement of antiquity, regardless of the nature or extent of the public use of these areas.  Thus, even though a customary public use of the dry sand area within the Quinault Indian Reservation may have begun in 1963, and even though the rights which such use could give rise to may still be ripening today, that use has not achieved the status of law in 1970.18/

                        CONCLUSION

            In summary, we conclude that the public, vis-a-vis the  [[Orig. Op. Page 22]] private upland owner, has the right to the free and unhindered use and enjoyment of the wet and dry sands area of the Pacific Ocean beaches, by virtue of a long established customary use of those areas.  In so concluding, we, as expressed earlier in this opinion, limit ourselves specifically to the wet and dry sand areas of the beaches.  We express no opinion whatsoever as to whether the public's customary rights to the use and enjoyment of the ocean beaches might extend inland from the line of vegetation, or if so, how far inland those rights go.  We wish further to make it perfectly clear that by this opinion we in no way mean to say that whatever rights the public might have to the free use and enjoyment of the ocean beaches are based solely on the doctrine of custom.  There are several other legal theories which could support those rights.  We have not treated those theories in any way in this opinion, but that should not be taken to indicate that none of those theories would apply to the area involved.  Furthermore, by this opinion we intend in no way to indicate that the public's right to use and enjoy the ocean beaches by virtue of custom in any way restricts the state's power, as sovereign, to modify, alter, or regulate the exercise of those rights by the public.

            Finally, we conclude that the rights which we have found to lie in the public to the use and enjoyment of the ocean beaches do not extend over the wet and dry sand areas within the external boundaries of the Quinault Indian Reservation.19/

             [[Orig. Op. Page 23]]

            Because the situation which prompted our discussion of the status of the Quinault beaches is present only within that reservation, we have not examined, and express no opinion as to, the status and rights of the other Indian tribes, the Makah, Quillayute, and Hoh, whose established reservations abut the Pacific Ocean.

            We trust the foregoing will be of assistance to you.

 

Very truly yours,

SLADE GORTON
Attorney General

 

MALACHY R. MURPHY
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/These areas have never been defined by the Washington courts.  We take these definitions from a variety of sources, but principally from theHay case,supra.

2/The Oregon court's decision in Hay is presently under attack on constitutional grounds in the United States District Court for the District of Oregon, in Hay v. Bruno, et al., U.S. D.C., Ore. Civil No. 68-300.  We are, however, confident of the validity of that decision.  Furthermore, although we rely heavily on that decision, it is not essential to the conclusion reached herein.

3/The 16' elevation contour line is the line which is intended to correspond roughly with the line of vegetation, and beyond which permits are required for any construction under ORS 390.640, ORS 390.650 and ORS 390.770.  In Oregon, as in this state, the actual "tidelands," which correspond generally to the wet sand area, are owned by the state.

4/The Circuit Court for Clatsop County had reached the same result, but based on a theory of prescription and thus applicable only to the property before the court.  The Oregon Supreme Court, while not rejecting the prescriptive easement theory, preferred the doctrine of custom because "doubtful prescription cases could fill the courts for years with tract-by-tract litigation.  An established custom, on the other hand, can be proven with reference to a larger region.  Ocean-front lands from the northern to the southern border of the state ought to be treated uniformly."  (462 P.2d at p. 676.)

5/The Hays' property is located at Cannon Beach, in Clatsop County, Oregon.

6/One element of the doctrine of custom is its capability of being noticed without proof.  See, 21 Am.Jur.2d, Customs and Usages, § 1; Isaacs v. Barber, 10 Wash. 124, 38 Pac. 871 (1894).  This office has previously taken notice of local customs.  In AGO 1897-98, p. 192, in defining the eastern limits of the Straits of Juan de Fuca, we took notice that the Straits, "by local custom, are generally presumed to begin immediately west of Victoria Roadstead."

7/The modern commentators agree substantially with Blackstone.  See, 21 Am.Jur.2d, Customs and Usages, §§ 1 through 10; 6 Powel, Real Property, § 934.  The Oregon court in Hay, supra, adopted these requirements, and found each to have been satisfied.

8/The interruption of the public's use of the beaches within the Quinault Indian Reservation will be discussed in our analysis of Question (2).

9/The seashore conservation line is a line, agreed to by the upland property owners and surveyed and monumented by the Washington state parks and recreation commission.  It generally parallels and lies slightly inland from the line of visible vegetation.  The seashore conservation line has been established on the Long Beach Peninsula in Pacific county, and at one location in the vicinity of Ocean City in Grays Harbor county.  It is established by coordinates and is recorded with the appropriate county auditor.  See, Book I of Plats, pages 1 through 13, Records of Pacific County, and Vol. 51, page 457, Records of Grays Harbor County.

10/10 Wash. at p. 128.  See, also, Offield v. Ish, 21 Wash. 277, 57 Pac. 809 (1899).

11/A similar qualification must obviously apply to the conclusion we reach here.  Although the public has used publicly owned land along the beaches in the same manner as all other lands, and this use has been recognized, sanctioned and encouraged by legislative expression, the customary rights thus acquired, while secure against interference by private landowners, are capable of being altered or regulated by the state.  See, e.g.,Creekmore v. F. T. Justice & Co., 152 Ky. 514, 153 S.W. 738 (1913).

12/These cases also held that the Act of July 26, 1866 (14 Stat. 253), was in part declarative of existing rights based on custom.

13/This conclusion is supported by an opinion of the solicitor of the department of interior, saying:

            "Over tribal lands, the tribe has the rights of a landowner as well as the rights of a local government, dominion as well as sovereignty.  But over all the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders, the tribe has the sovereign power of determining the conditions upon which persons shall be permitted to enter its domain, to reside therein, and to do business, provided only such determination is consistent with applicable Federal laws and does not infringe any vested rights of persons now occupying reservation lands under lawful authority."  55 I.D. 14, 50.

14/That was, in fact, the holding in U.S. v. Moore,supra.

15/The provisions of this act have been frequently litigated, and are the subject of a wealth of legal writing.  See, AGO 1970 No. 11 [[to Bill Kiskaddon, State Representative on June 4, 1970]], and the cases cited therein, in which we recently held that a county could zone fee patent land within the exterior boundaries of an Indian reservation, but could not so encumber tribal or allotted lands which were still held in trust or subject to a restriction against alienation, even though the particular tribe might have petitioned for complete state civil and criminal jurisdiction, and such jurisdiction had been assumed.

16/See, State v. Bertrand, 61 Wn.2d 333, 378 P.2d 427 (1963);Quinault Tribe of Indians v. Gallagher, 368 F.2d 648 (9th Cir. 1966), cert. den. 387 U.S. 907 (1967).

17/To say that customary public rights immediately sprang up in 1963 would require the application of some theory of relation back.  We have found no authority to support such a theory in connection with the doctrine of custom, and we question whether any exists.  In that connection, although the two doctrines are based on different legal concepts, we would point to cases holding that the doctrine of adverse possession does not apply to Indian trust land, and that the statutory period for holding adversely to an owner does not begin to run until land is removed from the trust status.  See, e.g.,Lewis v. Moore, 199 F.2d 745 (10th Cir. 1952) and United States v. Russell, 261 F.Supp. 196 (U.S. D.C., E.D. Okla. 1966).

18/Because the question presented deals only with the rights of the public in general to use and enjoy the ocean beaches, we take no position on whatever rights, if any, private, non-Indian owners of fee patent beach front land within the Quinault Reservation might have to the use of the beaches contiguous to their land, or of the tribe to regulate such use.  That is a question which should be settled between the Quinaults and the fee patent owners and is not one which affects the rights of the general public in this state.

19/We should add one caveat.  The laws affecting Indians and Indian tribes are in an almost constant state of flux and development.  Furthermore, the direction which this development will take, particularly in the area of the retained sovereignty and governmental powers of Indian tribes, is the almost exclusive province of the federal congress.  By our conclusion we intend only to express our opinion as to the status and rights of the Quinaults in view of the state of the law today.  A significant change in federal Indian law or policy in the future could dictate our reaching a different conclusion than the one expressed herein.

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