WATERS ‑- PUGET SOUND AND OCEAN BEACHES ‑- RIGHT OF PUBLIC TO USE OF PUGET SOUND BEACHES
Because the factors upon which AGO 1970 No. 27 [[to Jonathan Whetzel, State Representative on December 14, 1970]], relating to the right of the public to use the ocean beach areas of the state, are not present in the case of Puget Sound beach areas, members of the public do not have the same right to use the Puget Sound beaches as they do the ocean beaches.
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June 24, 1976
Mr. Rick Smith
State Representative, 23rd District
Route 4, Box 951 F
Bremerton, Washington 98310 Cite as: AGLO 1976 No. 41
By recent letter you requested our opinion on the following two questions:
"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 Puget Sound beaches by virtue of customary use?
"2. To the extent that the above question is answered in the affirmative, how does this conclusion apply to Puget Sound beaches which have been sold or leased by the State of Washington to private parties and how does it apply to lands within the exterior boundaries of Indian reservations?"
For the reasons set forth below we answer the first of these two questions in the negative; consideration of the second question is thereby rendered unnecessary.
In posing the above questions you have made note of the fact that this office, in 1970, issued an opinion (AGO 1970 No. 27 [[to Jonathan Whetzel, State Representative on December 14, 1970]]) regarding the right of members of the public to ". . . use and enjoy the wet and dry sand areas of theocean beaches of the state of Washington by virtue of a long-established customary use of those areas." (Emphasis supplied.) With the exception of those ocean beaches situated within the boundaries of the Quinault Indian Reservation (or, possibly, the Makah, Quileute and Hoh Reservations as well if covered by similar treaties ‑ a point which we did not there specifically determine) we concluded that such a right should be deemed to exist. Your present question, in essence, is whether the same conclusion is properly to be reached in connection [[Orig. Op. Page 2]] with the use and enjoyment, by the public, of beach areas along Puget Sound.
Since our issuance of AGO 1970 No. 27, supra, we have been repeatedly asked much this same question by others. Although no formal attorney general's opinion has previously been rendered on the question there has never been any doubt in our minds as to what the answer would have to be if such an opinion were formally to be requested.
The basically affirmative answer which we reached in AGO 1970 No. 27 to the question there posed was, as you will readily note from a reading of that opinion, based upon several distinct factors. First, and perhaps most important, we were there able to find the existence of a general, customary and habitual use of the ocean beach areas by the public, continuously over the years, since long before statehood. Secondly, we found an express legislative acknowledgment of the "public" nature of the ocean beach areas set forth in several statutes declaring those beach areas to be public highways. See, RCW 79.16.170 and 79.16.171, RCW 79.16.160 and 79.16.161, RCW 79.16.130 and 79.16.140, and RCW 79.16.172. And thirdly, we also found a further legislative recognition of this same general status of our ocean beaches in the Washington Seashore Conservation Act, chapter 120, Laws of 1969 (RCW 43.51.650-43.51.685) as amended.
Conversely, none of these factors upon which we relied in our earlier opinion may be said to exist with respect to the beach areas along Puget Sound. Although such usage as is necessary to give rise to some form of prescriptive easement may, possibly, have occurred over the years with respect to individual parcels of beach areas along the sound (see, RCW 7.28.050, et seq.) there appears to be no basis for a finding of such general, customary and habitual, continuous, use of Puget Sound beaches,perse, as would be necessary in order to support a claim of public right under, for example, a case such as State ex rel. Thorton v. Hay, 89 Ore. 887, 462 P.2d 671 (1969), upon which we principally relied in AGO 1970 No. 27. Likewise, there is in the case of Puget Sound beaches no statutory pattern similar to that contained in chapter 79.16 RCW, with respect to our ocean beaches. And by the same token, of course, since the Seashore Conservation Act does not apply to Puget Sound beach areas the reliance which we were able to place upon that legislation in our earlier opinion cannot be duplicated here.
Therefore, for all these reasons, it is the opinion of this office that (contrary to the situation which exists on our ocean beaches) members of the public in this state donot ". . . have the right to use and enjoy the wet and dry sand [[Orig. Op. Page 3]] areas of Puget Sound beaches by virtue of customary use."
Accordingly, we must here answer the first question posed in your opinion request in the negative ‑ thereby, of course, rendering any consideration of your second question unnecessary.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General