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Copyright © 2006 by Washington Law Review Association
813
ENJOYS LONG WALKS ON THE BEACH:
WASHINGTON’S PUBLIC TRUST DOCTRINE AND THE
RIGHT OF PEDESTRIAN PASSAGE OVER PRIVATE
TIDELANDS
Ewa M. Davison, Ph.D.
Abstract: Under Washington’s public trust doctrine, the state retains a jus publicum
interest in tidelands, regardless of ownership. This interest obligates the state to protect the
public rights encompassed within the jus publicum: navigation, fishing, boating, swimming,
water skiing, and corollary recreational activities. The state satisfies this duty so long as its
actions do not circumscribe public access to those resources, including tidelands,
traditionally protected by the public trust doctrine. The title to any tidelands property sold
into private ownership is similarly burdened; a private tidelands owner may not utilize
property in a way that would compromise the state’s jus publicum interest and public rights
protected thereby. This Comment argues that Washington’s public trust doctrine
encompasses a public right of pedestrian passage over unsubmerged private tidelands, at least
where necessary to realize those jus publicum rights previously recognized by the judiciary.
Judicial acknowledgment of such a right is a logical extension of the Washington State
Supreme Court’s holding in Caminiti v. Boyle that private construction on state tidelands
does not impair the jus publicum where the private property owner permits public pedestrian
passage as necessary to effectuate public trust rights. Furthermore, recognition of a right of
public access to private tidelands harmonizes Washington’s public trust doctrine with that of
other states that also recognize the Institutes of Justinian as an ancient source of public trust
principles. Finally, the state legislature’s repeated identification of a dearth of public
recreational access to tidelands also supports this premise, as the scope of Washington’s
public trust doctrine is shaped by the needs of the state’s citizens.
Two Washington residents decide to go fishing, one on foot and the
other by boat.1
 The first individual accesses state-owned tidelands within
a state park, but then continues walking beyond the state park boundary
until he reaches a promising location on unsubmerged, privately-owned
tidelands from which to cast his line. The second individual launches his
boat from the state park and then tries his luck while floating over the
same private tidelands on which the first fisherman stands just a few feet
away. The owner of the tidelands, incensed by the presence of these
strangers on his property, calls the police. Both individuals inform the
arriving officer that the public trust doctrine protects the public right of
fishing from both tidelands and tidewaters, regardless of the tidelands’
private ownership. Yet, under the holding of a recent unpublished

1. Hypothetical created by the author. 
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decision from the Washington State Court of Appeals,2
 the officer would
allow the second individual to continue fishing from his boat but arrest
the first individual traveling on foot for trespass.
The majority of tidelands within Washington State are privately
owned. Washington entered the Union with ownership of all tidelands
within its borders up to and including the line of ordinary high tide, with
the exception of those areas previously reserved by the federal
government.3
 The Washington Constitution, while establishing state
ownership of the state’s 2337 miles of tidelands,4
 provides no guidance
as to their management. Intent on encouraging development, the state
transferred sixty-one percent of its tidelands into private ownership
between 1890 and 1979.5
 A recent study estimates that approximately
seventy-three percent of the Puget Sound coastline is currently in private
ownership.6
 Yet approximately two-thirds of Washington’s population
lives in the counties bordering Puget Sound, with some eighty-five
percent of this subpopulation residing within ten miles of the Puget
Sound shoreline.7
In 1987, the Supreme Court of Washington—perhaps responding to
the extensive transfer of tidelands into private ownership during the
previous century—declared in Caminiti v. Boyle8
 “that the [public trust]
doctrine has always existed in the State of Washington.”9
 Regardless of
actual ownership, Washington retains sovereignty and dominion over all

2. City of Bainbridge Island v. Brennan, No. 31816-4-II, 2005 Wash. App. LEXIS 1744, at *63
(Wash. Ct. App. July 20, 2005), review denied, No. 77713-6, 2006 Wash. LEXIS 448 (Wash. May
31, 2006). See infra notes 115–121 and accompanying text for an explanation of the error
underlying this holding.
3. WASH. CONST. art. XVII, §§ 1–2; see also infra notes 53–60 and accompanying text.
4. WASH. CONST. art. XVII, § 1; see WASH. STATE DEP’T OF ECOLOGY, PUBL’N NO. 00-06-029,
MANAGING WASHINGTON’S COAST: WASHINGTON STATE’S COASTAL ZONE MANAGEMENT
PROGRAM 21 (2001), available at http://www.ecy.wa.gov/pubs/0006029.pdf.
5. Kenan R. Conte, The Disposition of Tidelands and Shorelands, Washington State Policy 1889–
1982, at 55–56 (Dec. 7, 1982) (unpublished M.P.A. thesis, The Evergreen State College) (on file
with The Evergreen State College); see also JAMES W. SCOTT, WASH. STATE DEP’T OF ECOLOGY,
AN EVALUATION OF PUBLIC ACCESS TO WASHINGTON’S SHORELINES SINCE PASSAGE OF THE
SHORELINE MANAGEMENT ACT OF 1971, at 10 (1983) (estimating that forty-five percent of the
saltwater shoreline remains in public ownership).
6. THE TRUST FOR PUBLIC LAND, PUGET SOUND SHORELINE STRATEGY: A CONSERVATION
VISION FOR PUGET SOUND 14 (2005), http://www.tpl.org/content_documents/puget_sound_
shoreline_screen.pdf.
7. Id. at 10.
8. 107 Wash. 2d 662, 732 P.2d 989 (1987).
9. Id. at 670, 732 P.2d at 994. 
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tidelands within its borders.10 This public property interest, known as the
jus publicum, requires the state to protect public access to resources and
activities encompassed by the public trust doctrine.11 Specifically, the
state must protect “the right ‘of navigation, together with its incidental
rights of fishing, boating, swimming, water skiing, and other related
recreational purposes generally regarded as corollary to the right of
navigation and the use of public waters.’”12 The state’s jus publicum
interest in effect limits the property rights conveyed with the title to any
Washington tidelands, preventing private owners from substantially
impairing protected public rights in any way.13
This Comment argues that the public trust doctrine in Washington
encompasses public access to private tidelands, at least where pedestrian
passage is necessary to effectuate currently protected jus publicum
rights. The Supreme Court of Washington’s opinion in Caminiti strongly
suggests that where private ownership obstructs public access to
resources protected by the public trust doctrine, the jus publicum is
impermissibly impaired if the owner does not in some way allow
pedestrian passage across the impeding property.14 Judicial protection of
public access to private tidelands is also consistent with the scope of the
doctrine in states that, like Washington, recognize the Institutes of
Justinian as a source of public trust principles.15 Furthermore, the courts
have recognized that application of the Washington public trust doctrine
must be responsive to the needs of its citizens.16 The Washington
Legislature, the arbiter of public need, has enacted legislation to correct
a perceived deficiency in recreational access to tidelands.17
Part I of this Comment establishes that the public trust doctrine
protects all tidelands within Washington State and examines the
responsibilities this doctrine imposes upon both the state and private

10. Id. at 669, 732 P.2d at 994.
11. Id. at 668–70, 732 P.2d at 994.
12. Id. at 669, 732 P.2d at 994 (quoting Wilbour v. Gallagher, 77 Wash. 2d 306, 316, 462 P.2d
232, 239 (1969)).
13. Orion Corp. v. State, 109 Wash. 2d 621, 640, 747 P.2d 1062, 1072–73 (1987) (observing that
“[t]he public trust doctrine resembles ‘a covenant running with the land . . . for the benefit of the
public’” (quoting Scott W. Reed, The Public Trust Doctrine: Is it Amphibious?, 1 J. ENVTL. L. &
LITIG. 107, 118 (1986))).
14. See infra Parts I.A.3, IV.A.
15. See infra Part II.
16. Orion, 109 Wash. 2d at 640–41, 747 P.2d at 1073.
17. See infra Part III for a discussion of the significance of the Shoreline Management Act
(SMA), the Seashore Conservation Act (SCA), and the Aquatic Lands Act (ALA). 
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tidelands owners. Part II discusses the relationship between judicial
recognition of public access to private tidelands and judicial recognition
of the Institutes of Justinian as an ancient codification of public trust
principles. Part III examines the role of the Washington Legislature in
determining the scope of the public trust doctrine. Finally, Part IV
argues that the public trust doctrine in Washington encompasses a public
right to pedestrian passage over private tidelands, at least where such
access is required to effectuate uses already judicially recognized as
protected by the public trust.
I. THE PUBLIC TRUST DOCTRINE PROTECTS
WASHINGTON’S TIDELANDS
Although vested with ownership of most tidelands within its borders
upon entry into the Union, Washington has since sold the majority of
this valuable property into private ownership.18 Under the public trust
doctrine, the title to any tidelands consists of two separable interests—
the jus privatum and the jus publicum. Although Washington may sell
the jus privatum interest in the title into private ownership, the state
retains a jus publicum interest in any such property, regardless of the
identity of the titleholder.19 Federal case law—later adopted explicitly by
the Washington State Supreme Court20—suggests that a state may not
cede all control of the jus publicum.
21 Furthermore, under its own case
law, the jus publicum interest obligates Washington State to protect the
public rights encompassed within the public trust doctrine: “the right ‘of
navigation, together with its incidental rights of fishing, boating,
swimming, water skiing, and other related recreational purposes
generally regarded as corollary to the right of navigation and the use of
public waters.’”22 The state satisfies this duty so long as it either:
(1) promotes the overall public interest in the jus publicum; or (2) does
not substantially circumscribe public access to resources, including

18. See Ralph W. Johnson et al., The Public Trust Doctrine and Coastal Zone Management in
Washington State, 67 WASH. L. REV. 521, 552–53 (1992) (citing Conte, supra note 5, at 55–56).
19. Caminiti v. Boyle, 107 Wash. 2d 662, 668–70, 732 P.2d 989, 993–94 (1987).
20. See id. at 670, 732 P.2d at 994–95; see also infra notes 62–66 and accompanying text.
21. See Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 453 (1892) (holding that the Illinois
Legislature lacked authority to grant the Illinois Central Railroad title in the lands underlying most
of the Chicago waterfront on Lake Michigan).
22. Caminiti, 107 Wash. 2d at 669, 732 P.2d at 994 (quoting Wilbour v. Gallagher, 77 Wash. 2d
306, 316, 462 P.2d 232, 239 (1969)). 
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tidelands, protected under the jus publicum.
23 Similarly, the public trust
doctrine also burdens the title to tidelands transferred into private
ownership.24 A private tidelands owner thus may not undertake any
property usage that would substantially compromise the state’s jus
publicum interest and public rights protected thereby. 25
A. Judicial Interpretation of the Public Trust Doctrine Prohibits the
State of Washington from Ceding Control of Its Jus Publicum
Interest in Tidelands
Each state holds in trust for the benefit of its people an interest in any
property protected by the public trust doctrine.26 Although federal case
law may prohibit a state from entirely ceding control of this trust,27 each
state determines the scope of public rights protected thereby.28 Under
Washington’s public trust doctrine, the state may not cede its jus
publicum interest in any individual parcel unless doing so either
promotes or does not substantially impair the public rights protected
thereby:29 navigation, fishing, boating, swimming, water skiing, “and
other related recreational purposes generally regarded as corollary to the
right of navigation and the use of public waters.”30 Washington case law

23. See Weden v. San Juan County, 135 Wash. 2d 678, 698–99, 958 P.2d 273, 283 (1998);
Caminiti, 107 Wash. 2d at 670, 732 P.2d at 994-95; Wash. State Geoduck Harvest Ass’n v. Wash.
State Dep’t of Natural Res., 124 Wash. App. 441, 451–52, 101 P.3d 891, 896–97 (2004).
24. See Orion Corp. v. State, 109 Wash. 2d 621, 640, 747 P.2d 1062, 1072–73 (1987) (quoting
Reed, supra note 13, at 118).
25. See Orion, 109 Wash. 2d at 640, 747 P.2d at 1073 (holding under the public trust doctrine that
a developer never possessed the right to fill and dredge navigable tidelands); see also Esplanade
Props., LLC v. City of Seattle, 307 F.3d 978, 986–87 (9th Cir. 2002) (holding under Washington
law that denial of a developer’s application to construct homes over Puget Sound tidelands did not
constitute a regulatory taking because such construction was inconsistent with public trust
principles); Wilbour, 77 Wash. 2d at 316, 462 P.2d at 239 (ordering the owners of littoral property
to remove fills that prevented annual submergence of their shoreline and thus impeded their
neighbors’ access to the adjoining lake).
26. Ill. Cent., 146 U.S. at 435.
27. Id. at 452–53.
28. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 475 (1988) (noting that “it has been
long established that the individual States have the authority to define the limits of the lands held in
public trust and to recognize private rights in such lands as they see fit”); Shively v. Bowlby, 152
U.S. 1, 26 (1894) (“[E]ach State has dealt with the lands under the tide waters within its borders
according to its own views of justice and policy . . . . Great caution, therefore, is necessary in
applying precedents in one State to cases arising in another.”).
29. Caminiti v. Boyle, 107 Wash. 2d 662, 670, 732 P.2d 989, 994–95 (1987).
30. Id. at 669, 732 P.2d at 994 (quoting Wilbour, 77 Wash. 2d at 316, 462 P.2d at 239). 
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further establishes that so long as state regulation either promotes or
does not circumscribe public access to protected resources, the state has
not ceded control over the jus publicum.
31
1. Federal Case Law Suggests that No State May Cede All Control
over its Tidelands, but that Individual Parcels May Sometimes Be
Transferred into Private Ownership
The United States inherited the public trust doctrine from English
common law,32 whereby the Crown retained an interest in the nation’s
ports, seas, and navigable rivers for the benefit of the people.33 Early
U.S. Supreme Court decisions developing American public trust doctrine
explicitly referred to Lord Hale’s treatises on the foreshore and adopted
his concepts of the jus privatum and jus publicum.
34 Discussing the
Crown’s “right of propriety or ownership in the sea and soil thereof,”35
Lord Hale explained:
But though the king is the owner of this great wast, and as a
consequent of his propriety hath the primary right of fishing in
the sea and the creeks and arms thereof; yet the common people
of England have regularly a liberty of fishing in the sea or creeks
or arms thereof . . . .36
Although tidelands belonged prima facie to the Crown, they could also
belong to a subject, as where transferred by the king through charter or
grant.37 But even upon such transfer of title,

31. See Weden v. San Juan County, 135 Wash. 2d 678, 699, 958 P.2d 273, 283–84 (1998)
(holding that San Juan County did not cede control of the public trust by banning use of motorized
personal watercraft because the regulated waters remained accessible to all individuals); Caminiti,
107 Wash. 2d at 674, 732 P.2d at 996 (holding that a statutory provision eliminating fees for
construction and maintenance of private docks on state tidelands did not interfere with public access
to affected tidelands because a regulation required that the public “be able to get around, under or
over” the docks); Wash. State Geoduck Harvest Ass’n v. Wash. State Dep’t of Natural Res., 124
Wash. App. 441, 452, 101 P.3d 891, 897 (2004) (holding that the state did not cede control of the
public trust by regulating commercial geoduck harvesting because such regulation promoted
regeneration of this resource).
32. See Shively, 152 U.S. at 14.
33. See id. at 11–13.
34. See, e.g., id. at 11, 12; Martin v. Waddell, 41 U.S. 367, 412, 16 Pet. 234, 264 (1842).
35. Sir Matthew Hale, De Jure Maris, in A HISTORY OF THE FORESHORE AND THE LAW
RELATING THERETO 370, 376 (Stuart A. Moore ed., 3d ed., 1888).
36. Id. at 377.
37. Id. at 379, 384. 
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the jus privatum of the owner or proprietor is charged with and
subject to that jus publicum which belongs to the king’s
subjects; as the soil of an highway is, which though in point of
property it may be a private man’s freehold, yet it is charged
with a publick interest of the people, which may not be
prejudiced or damnified.38
The U.S. Supreme Court summarized the public trust doctrine under
English common law in Shively v. Bowlby:
39 (1) “the title, jus privatum,
in [tidelands] . . . belongs to the King as the sovereign”; and (2) “the
dominion thereof, jus publicum, is vested in him as the representative of
the nation and for the public benefit.”40
American public trust doctrine at its most basic level constitutes “a
title held in trust for the people of the State that they may enjoy the
navigation of the waters, carry on commerce over them, and have liberty
of fishing therein freed from the obstruction or interference of private
parties.”41 Yet each state is otherwise free to individually determine the
lands and rights protected under the jus publicum.
42 Although the reach
of the public trust doctrine must therefore be determined independently
for each state, early federal case law reveals several overarching
principles.43

38. Id. at 404–05.
39. 152 U.S. 1 (1894).
40. Id. at 11.
41. Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892).
42. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 475 (1988) (noting that “it has been
long established that the individual States have the authority to define the limits of the lands held in
public trust and to recognize private rights in such lands as they see fit”); Shively, 152 U.S. at 26
(“[E]ach State has dealt with the lands under the tide waters within its borders according to its own
views of justice and policy . . . . Great caution, therefore, is necessary in applying precedents in one
State to cases arising in another.”).
43. Commentators disagree as to whether Illinois Central, 146 U.S. 387, establishes a federal
basis for the public trust doctrine. See, e.g., Joseph D. Kearney & Thomas W. Merrill, The Origins
of the American Public Trust Doctrine: What Really Happened in Illinois Central, 71 U. CHI. L.
REV. 799, 803 (2004) (questioning whether the holding of Illinois Central rests on federal or state
law); William D. Araiza, Democracy, Distrust, and the Public Trust: Process-Based Constitutional
Theory, the Public Trust Doctrine, and the Search for a Substantive Environmental Value, 45
U.C.L.A. L. Rev. 385, 396 n.39 (1997) (discussing the uncertainty). In fact, the U.S. Supreme Court
itself later noted with respect to its decision in Illinois Central that “the conclusion reached was
necessarily a statement of Illinois law.” Appleby v. City of New York, 271 U.S. 364, 395 (1926).
Although this is true in that each state independently determines the scope of the public trust
doctrine, the words of the U.S. Supreme Court in Illinois Central nonetheless indicate that certain
public trust principles transcend state borders:
It is the settled law of this country that the ownership of and dominion and sovereignty over
lands covered by tide waters, within the limits of the several States, belong to the respective 
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Most significantly, Illinois Central Railroad Co. v. Illinois44 suggests
that no state may entirely cede control of the jus publicum. In this
seminal public trust decision, the U.S. Supreme Court held that the
Illinois Legislature lacked authority to grant to the railroad both
“ownership and control” of the submerged lands underlying most of the
Chicago waterfront on Lake Michigan.45 Although the terms of the sale
prohibited the railroad from impairing the public right of navigation, the
transfer nonetheless deprived the state of any meaningful control over
development of this important harbor.46 The Court declared that
[t]he State can no more abdicate its trust over property in which
the whole people are interested, like navigable waters and soils
under them, so as to leave them entirely under the use and
control of private parties . . . than it can abdicate its police
powers in the administration of government and the preservation
of the peace.47
In so holding, the Court enunciated the general rule that with respect
to the lands beneath navigable waters, “control of the State for the
purposes of the [public] trust can never be lost.”48 It further found
exceptions to this general rule for only two property categories:
(1) “such parcels as are used in promoting the interests of the public
therein,” and (2) “such parcels as . . . can be disposed of without any
substantial impairment of the public interest in the lands and waters
remaining.”49 Thus, the Illinois Central opinion suggests that no state
may transfer into private ownership individual tidelands parcels unless

States within which they are found, with the consequent right to use or dispose of any portion
thereof, when that can be done without substantial impairment of the interest of the public in
the waters . . . .
146 U.S. at 435 (emphasis added). See also Joseph L. Sax, The Public Trust Doctrine in Natural
Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 489 (1970) (“The Court’s
decision [in Illinois Central] makes sense only because the Court determined that the states have
special regulatory obligations over shorelands . . . .” (emphasis added)). Ultimately, however,
whether Illinois Central establishes federal underpinnings for the public trust doctrine is here moot
because the Washington State Supreme Court has explicitly adopted the Illinois Central standard.
Caminiti v. Boyle, 107 Wash. 2d 662, 670, 732 P.2d 989, 994–95 (1987); see also infra notes 62–66
and accompanying text.
44. 146 U.S. 387 (1892).
45. See id. at 460.
46. Id. at 450–51.
47. Id. at 453.
48. Id. In discussing the public trust obligations of the states, the Court referred specifically to
“lands under the navigable waters of an entire harbor or bay, or of a sea or lake.” Id. at 452–53.
49. Id. at 453. 
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such transfer either promotes the public interest in that same property or
does not substantially impair public interest in remaining public trust
lands.50 Subsequent to its decision in Illinois Central, the Court held that
New York lost its authority to regulate navigation over two Hudson
River lots sold under condition that the private owner construct
bulkheads, wharves, and streets upon request.51 Similarly, the Court
affirmed Oregon’s ability to sell tidelands into private ownership under
conditions that encouraged expensive improvements necessary to
prevent ongoing shore erosion and harbor shoaling.52
2. Washington State Retains the Jus Publicum Interest in All
Tidelands Property Transferred into Private Ownership
Upon its admission into statehood in 1889, the equal footing doctrine
vested Washington with title to its tidelands.53 Each state receives title to
the tidelands within its borders upon entry into the Union.54 For states
formed from the original thirteen colonies, such title can be traced to
royal charters;55 the equal footing doctrine ensures that states
subsequently admitted into the Union similarly receive title to the
tidelands within their borders.56 The U.S. Supreme Court reaffirmed in
its most recent public trust case that “all lands under waters subject to
the ebb and flow of the tide”—regardless of actual navigability—
became property of each respective State upon its entry into the Union.57

50. Id.
51. Appleby v. City of New York, 271 U.S. 364, 368, 396–99 (1926).
52. Shively v. Bowlby, 152 U.S. 1, 52–57 (1894). Oregon today recognizes, on the basis of both
custom and usage, a public right to use not only tidelands, much of which are owned by the State of
Oregon, but also any dry sand area—that portion of the beach between the tidelands and the visible
line of vegetation. State ex rel. Thornton v. Hay, 462 P.2d 671, 672–73, 675–77 (Or. 1969).
53. Act of Feb. 22, 1889, ch. 180, § 8, 25 Stat. 676, 678–79 (providing that upon compliance with
all requirements therein, Washington “shall be deemed admitted by Congress into the Union under
and by virtue of this act on an equal footing with the original States”); see also Pollard’s Lessee v.
Hagan, 44 U.S. 212, 230, 3 How. 238, 259 (1845).
54. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 476 (1988); see also Brace & Hergert
Mill Co. v. State, 49 Wash. 326, 332, 95 P. 278, 281 (1908) (“This is founded on the principle that
the shores and beds of all bodies of water, whether navigable or unnavigable, belong to the state on
which they are situate . . . .”).
55. Shively, 152 U.S. at 48–49 (quoting Martin v. Waddell, 41 U.S. 367, 409–11, 16 Pet. 234,
262–64 (1842)).
56. See Pollard’s Lessee, 44 U.S. at 230, 3 How. at 259.
57. Phillips, 484 U.S. at 476. 
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In addition, the Washington Constitution independently provides the
state with title to tidelands as well as to the land beneath all navigable
waters:
The state of Washington asserts its ownership to the beds and
shores of all navigable waters in the state up to and including the
line of ordinary high tide, in waters where the tide ebbs and
flows, and up to and including the line of ordinary high water
within the banks of all navigable rivers and lakes . . . .58
Thus, with the exception of such lands previously reserved by the federal
government,59 Washington entered the Union with ownership of all
tidelands up to the line of ordinary high tide.60
The Supreme Court of Washington, following extensive review of the
state’s case law, declared in 1987 in Caminiti that “the [public trust]
doctrine has always existed in the State of Washington”61 and explicitly
adopted the test enunciated by the U.S. Supreme Court in Illinois
Central.
62 Washington’s title to tidelands and shorelands consists of both
jus privatum and jus publicum interests; the public trust doctrine dictates
that the state may transfer into private ownership only its interest in the
jus privatum.
63 Thus, “sovereignty and dominion over this state’s
tidelands and shorelands, as distinguished from title, always remains
[sic] in the State, and the State holds such dominion in trust for the
public.”64 Following Illinois Central,
65 Washington courts look to the

58. WASH. CONST. art. XVII, § 1.
59. Id. § 2.
60. See Harkins v. Del Pozzi, 50 Wash. 2d 237, 240, 310 P.2d 532, 535 (1957); Brace & Hergert
Mill Co. v. State, 49 Wash. 326, 331, 95 P. 278, 280 (1908) (collecting cases). The Supreme Court
of Washington has since defined the line of ordinary high tide as “the average of all high tides
during the tidal cycle.” Hughes v. State, 67 Wash. 2d 799, 810, 410 P.2d 20, 26 (1966), rev’d on
other grounds, 389 U.S. 290 (1967).
61. Caminiti v. Boyle, 107 Wash. 2d 663, 670, 732 P.2d 989, 994 (1987). In accordance with
federal case law, the court has also explicitly stated that “[it] look[s] solely to Washington law to
determine whether the public trust doctrine provides the general public with [a] right,” thus
insulating its public trust decisions from those of sister courts in other states. State v. Longshore,
141 Wash. 2d 414, 428, 5 P.3d 1256, 1263 (2000) (emphasis in original); see also supra note 42 and
accompanying text (describing federal case law). Yet this pronouncement has not prevented the
court, when deciding the scope of the public trust doctrine in Washington, from considering the
scope of this doctrine in other states. See Orion Corp. v. State, 109 Wash. 2d 621, 641 n.10, 747
P.2d 1062, 1073 n.10 (1987); Wilbour v. Gallagher, 77 Wash. 2d 306, 316 n.12, 462 P.2d 232, 239
n.12 (1969).
62. Caminiti, 107 Wash. 2d at 670, 732 P.2d at 994–95; see supra text accompanying notes 48–
50.
63. Id. at 668–69, 732 P.2d at 993–94.
64. Id. at 669, 732 P.2d at 994 (emphasis in original). 
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following two factors in determining whether a legislative act violates
the public trust doctrine: “(1) whether the State, by the questioned
legislation, has given up its right of control over the jus publicum and
(2) if so, whether by so doing the State (a) has promoted the interests of
the public in the jus publicum, or (b) has not substantially impaired it.”66
Beyond the minimum established in Illinois Central, states may
further define the characteristics of their own public trust doctrine;67
Washington explicitly protects not only the public’s interest in waters
subject to tidal influence, but also to the lands beneath such waters. In
Caminiti, the Supreme Court of Washington analyzed the public’s
“overriding interest in navigable waterways and lands under them.”68 It
has since referred to “public ownership interests in certain uses of
navigable waters and underlying lands,”69 and to “a public property
interest, the jus publicum, in tidelands and the waters flowing over them,
despite the sale of these lands into private ownership.”70
3. Regulation of Public Trust Resources Does Not Cede the State’s
Control Over the Jus Publicum if It Either Promotes or Does Not
Circumscribe Public Access to the Regulated Resources
The State of Washington does not cede control over the jus publicum
when it promotes public access to tidelands. The Washington State
Supreme Court held in Caminiti that a provision of the Aquatic Lands
Act71 eliminating fees for the installation and maintenance of private
recreational docks on state tidelands did not violate the public trust
doctrine.72 Enactment of this provision73 changed state practice by
allowing owners of private residential property abutting state-owned

65. See supra text accompanying notes 48–49.
66. Caminiti, 107 Wash. 2d at 670, 732 P.2d at 994–95.
67. See supra notes 41–43 and accompanying text.
68. Caminiti, 107 Wash. 2d at 668, 732 P.2d at 994 (emphasis added).
69. Weden v. San Juan County, 135 Wash. 2d 678, 698, 958 P.2d 273, 283 (1998) (emphasis
added) (quoting Johnson, supra note 18, at 524).
70. Id. (emphasis added).
71. The provision challenged in Caminiti was codified at the time of suit at WASH. REV. CODE
§ 79.90.105 (1983). The current version of this provision—amended to specify the abutting property
owner’s rights in the event that the state desires to lease or sell the adjoining tidelands—was
recodified at WASH. REV. CODE § 79.105.430(1) (2006). The Aquatic Lands Act (ALA) is now
found at WASH. REV. CODE chs. 79.105–140 (2006).
72. Caminiti, 107 Wash. 2d at 675, 732 P.2d at 997.
73. 1983 Wash. 2d Ex. Sess. Laws 2159–60 (codified at WASH. REV. CODE § 79.105.430). 
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tidelands to build private recreational docks on the adjacent state
tidelands without paying compensation to the state.74 The provision does
not convey title to any of the state-owned tidelands into private
ownership, but merely confers a revocable license to construct and
maintain a private dock.75 Use of any private docks so constructed is
limited to recreational purposes, and is further subject to both state and
local regulation.76 In holding that this statute does not violate but rather
advances some of the interests of the public trust doctrine—“albeit to a
limited degree”—the court observed that the docks would improve
recreational access to tidal waters by these property owners and their
guests.77 Private investment in such docks would thus contribute, at least
to some extent, to increasing usage of tidal waters.78
The state also does not cede control over the jus publicum where it
acts to protect tidelands through restriction of particular uses, at least so
long as public access to tidelands is not impaired. To the contrary,
Washington courts generally find that such regulations increase, rather
than decrease, state control of the jus publicum. Thus, San Juan County
did not cede control of public trust waters by enacting an ordinance
banning use of motorized personal watercraft.79 There, the court stressed
that the regulated waters remained accessible to all individuals.80
Similarly, state regulation of commercial geoduck harvesting protects
the public interest by ensuring continuation of geoduck resources.81 And
while no judicial determination has yet squarely addressed whether the
Washington public trust doctrine encompasses wildlife, state regulation
of hunting and trapping practices increases state control over this
potential public trust resource.82

74. Caminiti, 107 Wash. 2d at 664–65, 732 P.2d at 991–92.
75. Id. at 672–73, 732 P.2d at 995–96.
76. Id.
77. See id. at 673–74, 732 P.2d at 996.
78. See id.
79. Weden v. San Juan County, 135 Wash. 2d 678, 699, 958 P.2d 273, 283 (1998).
80. Id. at 699, 958 P.2d at 283–84 (“Although the Ordinance prohibits a particular form of
recreation, the waters are open to access by the entire public, including owners of [personal
watercraft] who utilize some other method of recreation.”).
81. Wash. State Geoduck Harvest Ass’n v. Wash. State Dep’t of Natural Res., 124 Wash. App.
441, 452, 101 P.3d 891, 897 (2004) (“The public trust doctrine . . . protects the public right to
recreation, commerce, and commercial fishing, all of which are bolstered by the state’s system of
facilitating sustainable geoduck harvesting and natural regeneration of the resource.”).
82. Citizens for Responsible Wildlife Mgmt. v. State, 124 Wash. App. 566, 575, 103 P.3d 203,
207–08 (2004). 
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B. The Public Trust Doctrine Burdens the Title to Tidelands
Transferred into Private Ownership
The Supreme Court of Washington has compared the jus publicum to
“a covenant running with the land . . . for the benefit of the public.”83
This limitation on the rights conveyed with titles of Washington
tidelands bars their private owners from undertaking activities that
compromise the jus publicum. In fact, even prior to officially
recognizing the public trust doctrine, the court had indicated that the
property rights accompanying land covered by navigable water were
circumscribed.84 In Wilbour v. Gallagher,
85 the court required littoral
property owners to remove fills that prevented submergence of their
shoreline and thus impeded their neighbors’ access to the adjoining
lake.86 The property at issue bordered Lake Chelan, whose level is raised
and lowered annually to allow generation of hydroelectric power.87
Neighbors had long used the waters that, at peak levels, covered the
defendants’ property for such recreational activities as fishing, boating,
and swimming.88 Attempting to prevent the annual submergence of their
property that allowed such use, the defendants erected fills to a height
five feet above the maximum lake level.89 Comparing the situation to
that of a naturally fluctuating lake, the court held that “the public has the
right to go where the navigable waters go, even though the navigable
waters lie over privately owned lands.”90 The court thus ordered the fills
removed because they obstructed public navigation.91

83. Orion Corp. v. State, 109 Wash. 2d 621, 640, 747 P.2d 1062, 1072–73 (1987) (quoting Reed,
supra note 13, at 118).
84. Wilbour v. Gallagher, 77 Wash. 2d 306, 315, 462 P.2d 232, 238 (1969) (“As the level [of the
water] rises, . . . the rights of the landowners decrease since they cannot use their property in such a
manner as to interfere with the expanded public rights.”). Although Wilbour predates judicial
recognition of the public trust doctrine in Washington, the scope of activities declared protected by
the jus publicum in Caminiti is in fact taken from Wilbour. See Caminiti v. Boyle, 107 Wash. 2d
662, 669, 732 P.2d 989, 994 (1987).
85. 77 Wash. 2d 306, 462 P.2d 232 (1969).
86. Id. at 316, 462 P.2d at 239.
87. For information about the Lake Chelan hydroelectric project, see
http://www.chelanpud.org/lake-chelan-hydro-project.html (last visited Oct. 10, 2006). For
information about Lake Chelan levels, see http://www.chelanpud.org/lake-chelan-lake-levels.html
(last visited Oct. 10, 2006).
88. Wilbour, 77 Wash. 2d at 312, 462 P.2d at 236.
89. Id. at 309, 462 P.2d at 234–35.
90. Id. at 315–16, 462 P.2d at 238. The court went on to state that the property owners were
nonetheless “entitled to keep trespassers off their land” during the months the lake was lowered. Id.
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The Washington State Supreme Court has since explicitly affirmed
that the property rights of private tidelands owners are limited by the
public trust doctrine. In Orion Corp. v. State,
92 the court held that a
developer never possessed the right to dredge and fill navigable
tidelands in Padilla Bay.93 Orion Corporation, the purchaser of 5600
acres of tidelands in this Puget Sound estuary, sued the state for inverse
condemnation after regulations enacted pursuant to the Shoreline
Management Act94 allegedly prevented both its planned construction of a
Venetian-style development and reclamation of the land for farming.95
The court held that Orion’s purchase of the Padilla Bay tidelands was
subject to the public trust.96 As a consequence, Orion could not use its
property in any way that would “substantially impair” public trust
rights.97 The regulations thus did not effect a taking so long as they only
denied uses barred by the public trust doctrine.98 In particular, the court
held that dredging and filling of privately owned tidelands was
inconsistent with public trust principles because navigation, fishing, and
associated public trust rights would be substantially impaired.99
Conversely, private construction on state tidelands does not impair the
jus publicum where the private property owner permits public pedestrian

Note that if the public trust doctrine in fact encompasses a public right to walk across unsubmerged
private tidelands and shorelands, then an individual indulging in such activity would not in fact be
trespassing. Furthermore, the Supreme Court of Washington recently reserved as open the question
of “whether and under what circumstances the public has a right to enter upon or cross over private
tidelands on foot,” indicating that its decision in Wilbour does not provide an answer to this
question. State v. Longshore, 141 Wash. 2d 414, 429 n.9, 5 P.3d 1256, 1263 n.9 (2000).
91. Wilbour, 77 Wash. 2d at 318, 462 P.2d at 237.
92. 109 Wash. 2d 621, 747 P.2d 1062 (1987).
93. Id. at 641, 747 P.2d at 1073.
94. WASH. REV. CODE ch. 90.58 (2006).
95. Orion, 109 Wash. 2d at 626–30, 747 P.2d at 1065–67.
96. Id. at 659, 747 P.2d at 1082–83.
97. Id. at 641, 747 P.2d at 1073.
98. See id. at 660, 747 P.2d at 1083.
99. Id. at 641, 747 P.2d at 1073; accord Esplanade Props., LLC v. City of Seattle, 307 F.3d 978,
986–87 (9th Cir. 2002) (holding under Washington law that denial of a developer’s application to
construct homes over Puget Sound tidelands below Magnolia bluff did not constitute a regulatory
taking because such construction was inconsistent with public trust principles).
Note that Seattle reclaimed the extensive tideflats of Elliott Bay through such filling during the
late nineteenth and early twentieth centuries. See generally Seattle Central Waterfront Tour, Part 1:
Overview, http://www.historylink.org/essays/output.cfm?file_id=7072 (last visited Sept. 19, 2006).
Art. XV, sec. 3 of the Washington Constitution specifically reserves to municipal corporations the
right to extend streets over the tidelands in navigable city harbors and bays. 
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passage necessary for the purpose of effectuating public trust rights.100
Specifically, the Supreme Court of Washington held in Caminiti that a
provision of the Aquatic Lands Act eliminating fees for construction and
maintenance of private docks on state tidelands did not violate the public
trust doctrine.101 In finding that the jus publicum was not substantially
impaired, the court specifically cited to a state administrative
regulation102 requiring that the owners of such docks provide public
pedestrian access over, under, or around these structures.103 The court’s
opinion thus suggests that private docks on state tidelands do not run
afoul of the public trust doctrine where they do not impair public access
to state tidelands.104
The scope of permissible public activity on private tidelands is not,
however, limitless. Specifically, the Washington State Supreme Court
has held one activity—the taking of shellfish from private tidelands—to
be outside the scope of the jus publicum.
105 In State v. Longshore,
106 the
defendant removed naturally occurring clams from privately owned
tidelands.107 On appeal from a conviction for second-degree theft, the
defendant asserted that such clams constitute a public trust resource and
thus could not be privately owned.108 The court rejected this argument,
holding that the unauthorized taking of naturally occurring clams from
private tideland property constitutes theft.109
The Supreme Court of Washington has yet to squarely address the
existence of a public right of passage over unsubmerged private
tidelands.110 That the jus publicum in Washington does not encompass

100. See Caminiti v. Boyle, 107 Wash. 2d 662, 667, 732 P.2d 989, 996 (1987).
101. Id. at 675, 732 P.2d at 997; see supra text accompanying notes 72–78.
102. WASH. ADMIN. CODE 332-30-144(4)(d) (2005) provides: “Owners of docks located on stateowned tidelands or shorelands must provide a safe, convenient, and clearly available means of
pedestrian access over, around, or under the dock at all tide levels.”
103. Caminiti, 107 Wash. 2d at 674, 732 P.2d at 996 (“[T]he public must be able to get around,
under or over [the private docks].” (emphasis added)).
104. See id.
105. State v. Longshore, 141 Wash. 2d 414, 429, 5 P.3d 1256, 1263 (2000).
106. 141 Wash. 2d 414, 5 P.3d 1256 (2000).
107. Id. at 417–18, 5 P.3d at 1258.
108. Id. at 419–20, 427, 5 P.3d at 1259, 1262.
109. Id. at 429, 5 P.3d at 1263.
110. Note that recognition and enforcement under the public trust doctrine of a public right of
access to private tidelands would not constitute a taking under either state or federal law. The right
to exclude others is admittedly a “fundamental attribute of property ownership.” Guimont v. Clarke,
121 Wash. 2d 586, 602, 854 P.2d 1, 10 (1993). But where a property right is denied, the state can 
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the right to take shellfish from private tidelands, however, has no
bearing on this issue. Although the court held in Longshore that an
unauthorized taking of naturally occurring clams from private property
constitutes theft,111 it explicitly noted that its decision did not reach the
question of public access to private tidelands.112 Furthermore, the court’s
decision rested in large part on the state legislature’s specific exemption
of shellfish from the definition of wildlife in RCW 77.08.010(16).113
Washington case law in fact strongly suggests that both wild and seeded
shellfish, at least if slow-moving, constitute either real or personal
property.114 The Washington public trust doctrine, while burdening
tidelands with the right of public access for fishing, navigation, and
recreational activities, has never sanctioned a taking of tangible private
property.
Although the Supreme Court of Washington has yet to squarely
address the issue, Division II of the Washington State Court of Appeals

nonetheless rebut the presumption of a taking under the Washington Constitution by demonstrating
that the property owner never possessed the right under state law to engage in the desired activity.
Id. Succinctly stated, “a ‘property right must exist before it can be taken.’” Orion Corp. v. State, 109
Wash. 2d 621, 641–42, 747 P.2d 1062, 1073 (1987) (quoting Geoffrey Crooks, The Washington
Shoreline Management Act of 1971, 49 WASH. L. REV. 423, 456 (1974)); see also Granite Beach
Holdings, L.L.C. v. State ex rel. Dep’t of Natural Res., 103 Wash. App. 186, 205, 11 P.3d 847, 858
(2000) (“There can be no inverse condemnation if no property right exists.”). Similarly, the U.S.
Supreme Court held that confiscatory regulations do not constitute a taking under the U.S.
Constitution where the limitation effected already “inhere[s] in the title itself, in the restrictions that
background principles of the State’s law of property and nuisance already place upon land
ownership.” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992); see also Palazzolo v. State,
No. WM 88-0297, 2005 WL 1645974, at *6–7 (R.I. Super. Ct. July 5, 2005) (holding under Lucas
that the public trust doctrine constitutes a background principle of state law limiting plaintiff’s
takings claim).
The public trust doctrine burdens the title to any privately owned tidelands in Washington, and
thus bars such a property owner from engaging in any property use that substantially impairs public
rights within the scope of the jus publicum. See supra text accompanying notes 84–99. Accordingly,
courts have twice held under Washington law that the title possessed by a private tidelands owner
simply does not encompass the right to dredge and fill the property, and that regulations prohibiting
such a right thus do not effect a taking. See supra note 99 and accompanying text. Similarly, if the
public trust doctrine encompasses a public right of access to private tidelands, then the title
possessed by a private tidelands owner never included the right to exclude individuals from such
property; a right of exclusion would substantially impair the jus publicum.
111. Longshore, 141 Wash. 2d at 429, 5 P.3d at 1263.
112. Id. at 429 n.9, 5 P.3d at 1263 n.9 (“[W]e need not determine whether and under what
circumstances the public has a right to enter upon or cross over private tidelands on foot.”).
113. See id. at 425–26, 5 P.3d at 1261–62.
114. See id. at 426, 5 P.3d at 1262; see also Sequim Bay Canning Co. v. Bugge, 49 Wash. 127,
131, 94 P. 922, 923 (1908) (“[Clams,] therefore, in a very material sense, belong with the land.
When taken they must be wrenched from their beds, made well down in the soil itself.”). 
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explicitly refused to recognize a public right of passage over
unsubmerged private tidelands in a 2005 unpublished opinion.115 The
court based its decision on the Supreme Court of Washington’s takings
analysis in Orion.
116 Specifically, the Washington State Supreme Court
held in Orion that a state regulatory scheme that prohibited a developer’s
plan to dredge and fill Padilla Bay tidelands did not effect an inverse
condemnation.117 In so holding, the court observed that “[the
developer’s] right to dispose of its property and to exclude
others . . . remain[ed] unaffected” under the offending regulations.118
Division II interpreted this reference to an unaffected right of exclusion
as “suggest[ing] that [the Washington State] Supreme Court did not
contemplate pedestrian passage over tidelands.”119 But in so reasoning,
the appellate court mistakenly construed the Orion court’s statement
regarding the developer’s right to exclude others. Specifically, the
appellate court interpreted that statement by comparing the developer’s
property to property not burdened by the public trust, on which the right
to exclude would admittedly be near absolute.120 This interpretation,

115. City of Bainbridge Island v. Brennan, No. 31816-4-II, 2005 Wash. App. LEXIS 1744
(Wash. Ct. App. July 20, 2005), review denied, No. 77713-6, 2006 Wash. LEXIS 448 (Wash. May
31, 2006). The City of Bainbridge Island filed suit in 1999 against several waterfront property
owners, in part to quiet title to the Puget Sound tidelands fronting the western end of N.E. Fletcher
Landing Road. Id. at *9–10; Petition for Review of Cross-Appellants Larson at 3, City of
Bainbridge Island v. Brennan, No. 31816-4-II, (Wash. Ct. App. Sept. 26, 2005), review denied, No.
77713-6, 2006 Wash. LEXIS 448 (Wash. May 31, 2006) [hereinafter Petition] (on file with author).
The city sought removal of a fence and locked gate erected across the road by abutting private
tideland owners. See Brennan, 2005 Wash. App. LEXIS 1744, at *9; Petition at 3. The waterfront
property owned by the Larsons, among those named as defendants, included tidelands accessible
only via a steep trail. See Brennan, 2005 Wash. App. LEXIS 1744, at *10; Petition at 3–4. Despite
the Larsons’ ownership interest both in the tidelands abutting their property and in the road end
tidelands at Fletcher Landing, however, the remaining defendants refused them access through the
locked gate. See Brennan, 2005 Wash. App. LEXIS 1744, at *10; Petition at 4. The Larsons chose
to side with the city and filed a cross-claim asserting under the public trust doctrine a public right of
passage not only over the road end but also adjacent tidelands. Brennan, 2005 Wash. App. LEXIS
1744, at *11, *56–57. The trial court dismissed without comment the Larsons’ public trust claim on
a summary judgment motion made by the remaining defendants. Id. at *11.
116. Brennan, 2005 Wash. App. LEXIS 1744, at *61–63; see supra notes 92–99 and
accompanying text.
117. Orion Corp. v. State, 109 Wash. 2d 621, 641–42, 747 P.2d 1062, 1073 (1987). The court
nonetheless remanded the case to the trial court to determine if Orion could have made a
“reasonably profitable use of its land consistent with the public trust.” Id. at 660, 747 P.2d at 1083.
118. Id. at 665, 747 P.2d at 1085 (emphasis added).
119. Brennan, 2005 Wash. App. LEXIS 1744, at *63.
120. For a general discussion of the right to exclude others from private property, see JOSEPH
WILLIAM SINGER, INTRODUCTION TO PROPERTY § 2.2.1 (2d ed. 2005). 
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however, ignores the Orion court’s earlier holding that the developer
purchased its estuarine property subject to the public trust.121
In sum, Washington’s public trust doctrine bars both the state and
private tidelands owners from substantially circumscribing public rights
protected by the state’s jus publicum interest. Federal law may prevent
any state from ceding all of its jus publicum interest. Washington’s
public trust doctrine further prevents this state from ceding its jus
publicum interest in any individual parcel unless such action either
promotes or does not substantially impair public rights protected therein.
II. STATES RECOGNIZING JUSTINIAN JUS PUBLICUM
PRINCIPLES ALLOW AT LEAST LIMITED PUBLIC ACCESS
TO PRIVATELY OWNED TIDELANDS
The Institutes of Justinian, an ancient Roman text, ensured public
access to all tidelands by declaring that tidelands simply could not be
subject to ownership.122 The judiciaries of ten states,123 including
Washington, recognize the Institutes as an ancient codification of the
public trust doctrine. Of the three judiciaries in these ten states that have
addressed the issue of public passage over privately owned tidelands, all
have affirmed the existence of such a right, at least where necessary to
effectuate more widely recognized public trust activities.124
A. The Institutes of Justinian Assert Common Ownership of Tidelands
Numerous scholars trace the roots of the public trust doctrine to
ancient Roman legal principles.125 The Institutes of Justinian, a textbook

121. Orion, 109 Wash. 2d at 641, 747 P.2d at 1073; see supra Part I.C.
122. J. INST. 2.1.1 in THOMAS COOPER, THE INSTITUTES OF JUSTINIAN 67 (3d ed. J.S. Voorhies
1852).
123. California, Hawaii, Iowa, Maryland, Massachusetts, Michigan, New Jersey, Rhode Island,
Vermont, and Washington. See Nat’l Audubon Soc’y v. Superior Court of Alpine County, 658 P.2d
709, 718 (Cal. 1983); In re Water Use Permit Applications, 9 P.3d 409, 445 (Haw. 2000); State v.
Sorensen, 436 N.W.2d 358, 361 (Iowa 1989); Dep’t of Natural Res. v. Mayor & Council of Ocean
City, 332 A.2d 630, 637 & n.8 (Md. Ct. App. 1975); Boston Waterfront Dev. Corp. v.
Commonwealth, 393 N.E.2d 356, 358 (Mass. 1979); Glass v. Goeckel, 703 N.W.2d 58, 63–64
(Mich. 2005); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 360 (N.J. 1984);
Champlin’s Realty Assocs., L.P. v. Tillson, 823 A.2d 1162, 1166 (R.I. 2003); State v. Cent. Vt. Ry.,
Inc., 571 A.2d 1128, 1130 (Vt. 1989); Caminiti v. Boyle, 107 Wash. 2d 662, 668–69 & n.12, 732
P.2d 989, 994 & n.12 (1987).
124. See Barry v. Grela, 361 N.E.2d 1251, 1252 (Mass. 1977); Glass, 703 N.W.2d at 74; Raleigh
Ave. Beach Ass’n v. Atlantis Beach Club, Inc., 879 A.2d 112, 121 (N.J. 2005).
125. See Note, The Public Trust in Tidal Areas: A Sometime Submerged Traditional Doctrine, 79 
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of Roman law written some 1500 years ago, asserts that certain natural
resources cannot pass into private ownership:
Things common to mankind by the law of nature, are the air,
running water, the sea, and consequently the shores of the sea;
no man therefore is prohibited from approaching any part of the
seashore, whilst he abstains from damaging farms, monuments,
edifices, etc. which are not in common as the sea is.126
By declaring that no individual could hold title to the seashore, Roman
law thus explicitly assured public access not only to the sea but also to
the underlying tidelands:
The use of the sea-shore, as well as of the sea, is also public by
the law of nations; and therefore any person may erect a cottage
upon it, to which he may resort to dry his nets, and hawl them
from the water; for the shores are not understood to be property
in any man, but are compared to the sea itself, and to the sand or
ground which is under the sea.127
This expansive understanding of the public’s right to use the seashore
stands in marked contrast to the scope of the jus publicum in any state
today. Yet judicial recognition of the Institutes of Justinian as an ancient
codification of the public trust doctrine correlates with an understanding
of the jus publicum that encompasses a right of public access to private
tidelands.
B. States That Recognize the Institutes of Justinian at a Minimum
Allow Public Access to Private Tidelands for Effectuation of Public
Trust Rights
In Caminiti, the Supreme Court of Washington explicitly recognized
not only the existence of the public trust doctrine but also the ancient
codification of this legal principle in the Institutes of Justinian.128
Several states in addition to Washington recognize the origins of the
public trust doctrine in the Institutes of Justinian.129 Three of these

YALE L.J. 762, 763–64 (1970); Sax, supra note 43, at 475 & n.15 (collecting sources).
126. J. INST. 2.1.1 in COOPER, supra note 122, at 67.
127. J. INST. 2.1.5 in COOPER, supra note 122, at 68.
128. Caminiti, 107 Wash. 2d at 668–69 & n.12, 732 P.2d at 994 & n.12 (“The principle that the
public has an overriding interest in navigable waterways and lands under them is at least as old as
the Code of Justinian . . . .” (citing to J. INST.)); see also Rettkowski v. Dep’t of Ecology, 122 Wash.
2d 219, 239, 858 P.2d 232, 243 (1993) (Guy J., dissenting).
129. The case law of three additional states—Montana, New Hampshire, and New York—refers 
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states—Massachusetts,130 Michigan,131 and New Jersey132—have directly
addressed the issue of public access to private tidelands and at a
minimum affirm such access for the purpose of effectuating traditional
public trust rights.133
Although otherwise narrow in its scope, the jus publicum in
Massachusetts encompasses a public right to walk across private
tidelands in order to effectuate traditional public trust rights. The
Massachusetts judiciary has generally interpreted the public trust
doctrine strictly in response to colonial legislation.134 Specifically, the
Colonial Ordinance of 1641–1647135 granted title of tidelands to all

generally to Roman law, but fails to cite specifically to the work of Emperor Justinian. See Mont.
Coal. for Stream Access, Inc. v. Curran, 682 P.2d 163, 167 (Mont. 1984); Opinion of the Justices,
649 A.2d 604, 607 (N.H. 1994); Landmark West! v. City of New York, 802 N.Y.S.2d 340, 349
(2005).
130. See Boston Waterfront Dev. Corp. v. Commonwealth, 393 N.E.2d 356, 358 (Mass. 1979)
(“At Roman law, all citizens held and had access to the seashore as a resource in common; in the
words of Justinian . . . .” (quoting J. INST. 2.1.1–2.1.6)).
131. See Glass v. Goeckel, 703 N.W.2d 58, 63–64 (Mich. 2005) (“This obligation traces back to
the Roman Emperor Justinian, whose Institutes provided . . . .” (quoting J. INST. 2.1.1)).
132. See Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 360 (N.J. 1984) (“The
genesis of this principle is found in Roman jurisprudence, which held . . . .” (quoting J. INST. 2.1.1)).
133. One state—California—has also created through constitutional amendment a right of public
access to private tidelands “whenever it its required for any public purpose.” CAL. CONST. art. X,
§ 4; see also Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 847–48 (1987) (observing with respect
to article X, section 4 of the California Constitution that “the State [of California] has sought to
protect public expectations of access from disruption by private land use”); City of Berkeley v.
Superior Court, 26 Cal. 3d 515, 522–23 (1980) (recounting the history leading to adoption of article
X, section 4 of the California Constitution). Because this protection is not judicially created, it will
not be addressed here further. The remaining states—Hawaii, Iowa, Maryland, Rhode Island, and
Vermont—have not directly addressed the question of public access to private tidelands under the
public trust doctrine, and thus will also not be addressed further.
The opinion of the Court of Appeals of Maryland in Department of Natural Resources v. Mayor
& Council of Ocean City arguably suggests, contrary to the thesis proposed here, that private
property rights are not circumscribed by the public trust doctrine. See 332 A.2d 630, 634 (Md. Ct.
App. 1975). While recognizing the traditional public trust rights of navigation and fishing, the court
observed that “[t]he notion that the rights of the owner of the littoral must be exercised in
subordination to the paramount rights of the public is no longer applicable, since rights of fishing,
boating, hunting, bathing, taking shellfish and seaweed and of passing and repassing have been pro
tanto extinguished by the prior grant.” Id. (citing Town of Orange v. Resnick, 109 A. 864 (Conn.
1920)). This statement is mere dicta, however, because the issue actually considered by the court
concerned the right of a property owner to build landward of the high water mark. See id. at 632.
134. See Opinion of the Justices, 313 N.E.2d 561, 565–66 (Mass. 1974).
135. Colonial Ordinance of 1641–1647, in THE BOOK OF THE GENERAL LAWES AND LIBERTYES
CONCERNING THE INHABITANTS OF THE MASSACHUSETS 35 (Thomas G. Barnes ed. 1975)
[hereinafter Colonial Ordinance]. The ordinance is viewed as “embodying the local law as to the jus
privatum . . . and the jus publicum.” Butler v. Attorney Gen., 80 N.E. 688, 689 (Mass. 1907). 
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private coastal owners,136 subject only to the enumerated public rights of
fishing, fowling, and navigation.137 Although the Supreme Judicial Court
of Massachusetts decided that “the right of passage over dry land at
periods of low tide cannot be reasonably included as one of the
traditional rights of navigation,”138 it has nevertheless recognized a right
to walk across otherwise private tidelands in order to fish from a public
jetty.139 The public trust doctrine in Massachusetts thus appears to
encompass public access to private tidelands where necessary to effect
enumerated public trust rights, but not for the purpose of allowing
general recreation.
Similarly, the Supreme Court of Michigan recently held that the
public possesses a right of pedestrian passage over all shorelands of the
Great Lakes, regardless of ownership.140 While the boundary of a private
landowner’s fee title extends to the low water mark of the Great Lakes,
the jus publicum extends to the high water mark and thus overlaps with
the jus privatum between these two boundaries.141 Michigan had
previously recognized protection under the public trust doctrine for the
traditional rights of “fishing, hunting, and navigation for commerce or
pleasure.”142 But the court acknowledged that it could only protect these
traditional rights if it also protected the activities inherent to their
exercise.143 Pedestrian passage constitutes such an activity because the
waters of the Great Lakes cannot otherwise be accessed for fishing,

136. See Colonial Ordinance, supra note 135, at 35 (“[I]t is declared that in all creeks, coves and
other places, about and upon salt water where the Sea ebs and flows, the Proprietor of the land
adjoyning shall have proprietie to the low water mark where the Sea doth not ebb above a hundred
rods, and not more wheresoever it ebs farther.”); see also Boston Waterfront Dev. Corp. v.
Commonwealth, 393 N.E.2d 356, 359–60 (Mass. 1979); Opinion, 313 N.E.2d at 565–66.
137. See Colonial Ordinance, supra note 135, at 35 (“'Everie Inhabitant who is an hous-holder
shall have free fishing and fowling, in any great Ponds, Bayes, Coves and Rivers so far as the Sea
ebs and flows, within the precincts of the town where they dwell, unles the Free-men of the same
town or the General Court have otherwise appropriated them.”); see also Boston Waterfront, 393
N.E.2d at 359–60; Opinion, 313 N.E.2d at 565–66.
138. Opinion, 313 N.E.2d at 566.
139. Barry v. Grela, 361 N.E.2d 1251, 1251–52 (Mass. 1977).
140. Glass v. Goeckel, 703 N.W.2d 58, 74 (Mich. 2005) (“[T]he public must have a right of
passage over land below the ordinary high water mark.”). The U.S. Supreme Court held long ago
that the lands beneath the navigable waters of the Great Lakes, although not overtly subject to tidal
influence, are encompassed within the public trust doctrine. Ill. Cent. R.R. Co. v. Illinois, 146 U.S.
387, 436–37 (1892).
141. Glass, 703 N.W.2d at 69–70.
142. Id. at 74.
143. Id. 
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hunting, and boating; effectuation of these traditional public trust rights
thus requires a right of public pedestrian passage over the lakeshore.144
The Supreme Court of New Jersey also recently affirmed the
importance of public access to private tidelands.145 The court had already
suggested more than thirty years earlier that the title to tidelands
conveyed by the state into private ownership might be burdened with a
public right of access to ocean waters.146 In holding that a private club
could not restrict public use of the dry sand area147 within its oceanfront
lots, the court in Raleigh Avenue Beach Ass’n v. Atlantis Beach Club148
returned in part to this question.149 The court held that “the public must
be given both access to and use of privately-owned dry sand areas as
reasonably necessary.”150 This limitation on private property rights was
required to afford the public not only “a suitable area for recreation on
the dry sand” but also “reasonable access to the foreshore.”151 Under the
court’s ruling, therefore, public access to private tidelands tracks public
access to private dry sand areas.152
As in Massachusetts and Michigan, the Supreme Court of New
Jersey’s holding in Raleigh appears to be motivated by desire to protect
jus publicum rights. The Supreme Court of New Jersey has repeatedly
stressed the flexibility of the public trust doctrine in responding to public

144. Id.
145. See Raleigh Ave. Beach Ass’n v. Atlantis Beach Club, 879 A.2d 112, 121 (N.J. 2005).
146. See Borough of Neptune City v. Borough of Avon-By-The-Sea, 294 A.2d 47, 54 (N.J.
1972).
147. The dry sand area is that part of the beach between the high water mark and either the
vegetation line or a man-made boundary such as a seawall or boardwalk, and thus lies adjacent to
but landward of the tidelands. See Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 358
n.1 (N.J. 1984).
148. 879 A.2d 112 (N.J. 2005).
149. See id. at 120–21.
150. Id. at 121. Necessity is determined on the basis of four specific criteria: (1) location of the
dry sand area with respect to the tidelands, (2) availability and size of publicly-owned dry sand
areas, (3) nature and scope of public demand for beach access, and (4) the private owner’s usage of
the dry sand area. Id. at 121–22 (citing Matthews, 471 A.2d at 365).
151. Id. at 121; see also Matthews, 471 A.2d at 366. Note that New Jersey refers to its tidelands
as the foreshore. See Spiegle v. Borough of Beach Haven, 218 A.2d 129, 133 (N.J. 1966)
(“Foreshore: The part of the shore, lying between the crest of the seaward berm and the ordinary
low water mark, that is ordinarily traversed by the uprush and backrush of the waves.”).
152. The existence of a right of reasonable public access to tidelands appears to have been
conceded during oral argument, perhaps explaining why this issue was not directly addressed by the
court. Raleigh, 879 A.2d at 127 (Wallace, Jr., J., dissenting) (noting that the “defendant
concedes . . . that the public has the right to use its property ‘at and below the mean high water
line’”). 
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need.153 Even prior to Raleigh, it thus had “no difficulty” finding that the
activities encompassed by the jus publicum “are not limited to the
ancient prerogatives of navigation and fishing, but extend as well to
recreational uses, including bathing, swimming and other shore
activities.”154 In defining the public trust doctrine so expansively, of
particular concern to the court was that activities such as bathing and
swimming could not be enjoyed without periods of rest on the shore.155
In sum, the Washington judiciary recognizes the Institutes of Justinian
as an ancient codification of public trust principles. A survey of state
case law reveals that such affirmative judicial appreciation of the public
trust doctrine’s historical roots correlates with judicial recognition of a
public right of pedestrian passage over privately owned tidelands. This
public right of access may, however, apply only where necessary to
effectuate activities protected by the jus publicum.
III. THE WASHINGTON LEGISLATURE RECOGNIZES A
PUBLIC NEED FOR RECREATIONAL TIDELANDS ACCESS
The scope of Washington’s public trust doctrine is shaped by the
needs of its citizens.156 The police power of the state vests the
Washington Legislature with authority to identify and enact legislation
to protect public welfare and safety interests.157 Because recreational
opportunities constitute a concern of the public welfare,158 the public
trust doctrine should respond to the legislature’s identification of a need
for public recreational access to tidelands.159

153. See Borough of Neptune City v. Borough of Avon-By-The-Sea, 294 A.2d 47, 54 (N.J. 1972)
(“The public trust doctrine . . . should not be considered fixed or static, but should be molded and
extended to meet changing conditions and needs of the public it was created to benefit.”); Raleigh,
879 A.2d at 121 (“recognizing . . . the dynamic nature of the public trust doctrine” (quoting
Matthews, 471 A.2d at 365)).
154. Neptune City, 294 A.2d at 54 (emphasis added).
155. Matthews, 471 A.2d at 365 (“The unavailability of the physical situs for such rest and
relaxation would seriously curtail and in many situations eliminate the right to the recreational use
of the ocean.”); see also Raleigh, 879 A.2d at 120. Note that the Raleigh court even made the
specific analogy between such recreational use and the reference in the Institutes of Justinian to
fisherman drying their nets on the seashore. Id.
156. Orion Corp. v. State, 109 Wash. 2d 621, 640–41, 747 P.2d 1062, 1073 (1987).
157. City of Seattle v. Ford, 144 Wash. 107, 110–11, 257 P. 243, 244 (1927) (quoting Lawton v.
Steele, 152 U.S. 133, 136 (1894)).
158. Markham Adver. Co. v. State, 73 Wash. 2d 405, 424, 439 P.2d 248, 260 (1968).
159. See generally WASH. REV. CODE ch. 90.58 (2006); id. §§ 79A.05.600–695; id. chs. 79.105–
140. 
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A. The Scope of the Washington Public Trust Doctrine Is Elastic and
Defined by Public Need
The scope of the public trust doctrine in Washington is elastic and
ultimately determined by the needs of the people.160 In Orion, the
Supreme Court of Washington declared that “[t]he trust’s relationship to
navigable waters and shorelands resulted not from a limitation, but
rather from a recognition of where the public need lay.”161 Even upon
first announcing the existence of the public trust doctrine in Washington,
the court explicitly refused to limit protected public rights to the narrow
confines of navigation and fishing.162 To the contrary, the court stated
that the jus publicum interest encompasses “the right ‘of navigation,
together with its incidental rights of fishing, boating, swimming, water
skiing, and other related recreational purposes generally regarded as
corollary to the right of navigation and the use of public waters.’”163
The Supreme Court of Washington has in recent years repeatedly
affirmed the wide swath of public rights protected by the public trust
doctrine, attesting to the latter’s continued breadth.164 To this day, the
court has held only one activity—the taking of shellfish from private
tidelands—to be outside the scope of the jus publicum,
165 and has hinted
that the public trust doctrine may even extend to environmental
protection.166 But the court has otherwise failed to explicitly elaborate on
what activities might constitute “other related recreational purposes
generally regarded as corollary to the right of navigation and the use of
public waters.”167 And in particular, it has yet to delineate protected
land-based activities.

160. Orion, 109 Wash. 2d at 640–41, 747 P.2d at 1073.
161. Id.; see also Rettkowski v. Dep’t of Ecology, 122 Wash. 2d 219, 242, 858 P.2d 232, 244
(1993) (Guy, J., dissenting) (observing that “at its most basic level, the scope of the public trust
doctrine is defined by the public’s needs in those natural resources necessary for social stability”).
162. Caminiti v. Boyle, 107 Wash. 2d 662, 669, 732 P.2d 989, 994 (1987).
163. Id. (quoting Wilbour v. Gallagher, 77 Wash. 2d 306, 316, 462 P.2d 232, 239 (1969)).
164. See Orion, 109 Wash. 2d at 641, 747 P.2d at 1073; Weden v. San Juan County, 135 Wash.
2d 678, 699, 958 P.2d 273, 283 (1998); State v. Longshore, 141 Wash. 2d 414, 427, 5 P.3d 1256,
1262 (2000).
165. Longshore, 141 Wash. 2d at 429, 5 P.3d at 1263.
166. See Weden, 135 Wash. 2d at 698, 958 P.2d at 283 (“The doctrine protects ‘public ownership
interests in certain uses of navigable waters and underlying lands, including . . . environmental
quality.’” (quoting Johnson, supra note 18, at 524)).
167. Caminiti, 107 Wash. 2d at 669, 732 P.2d at 994 (citing Wilbour, 77 Wash. 2d at 316, 462
P.2d at 239). A corollary is defined as “[a] proposition that follows from a proven proposition with
little or no additional proof” or “something that naturally follows.” BLACK’S LAW DICTIONARY 363 
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B. The Police Power of the State Vests the Washington Legislature
with Discretion to Determine Public Need
In discussing the constitutional reach of the state’s police power, the
Supreme Court of Washington has repeatedly affirmed the role of the
legislature in determining public needs. Police power is the unwritten
authority possessed by a state’s legislature to enact statutes promoting
public welfare and security:168 “[h]owever difficult it may be to give a
precise or satisfactory definition of ‘police power,’ there is no doubt that
the state, in the exercise of such power, may prescribe laws tending to
promote the health, peace, morals, education, good order and welfare of
the people.”169 Included amongst the concerns encompassed by the
police power is recreation and resource protection.170 The Washington
Legislature is vested with extensive discretion to determine current
requirements of the public interest.171 In the context of the public trust
doctrine, the Washington State Supreme Court has specifically opined
that “the use of police power by government allows the Legislature to
enact laws in the interest of the people.”172

(8th ed. 2004).
168. City of Seattle v. Ford, 144 Wash. 107, 110–12, 257 P. 243, 244 (1927) (quoting Lawton v.
Steele, 152 U.S. 133, 136 (1894)); Markham Adver. Co. v. State, 73 Wash. 2d 405, 421–22, 439
P.2d 248, 258 (1968).
169. Markham, 73 Wash. 2d at 421–22, 439 P.2d at 258 (quoting Shea v. Olson, 185 Wash. 143,
153, 53 P.2d 615, 619 (1936)); see also McDermott v. State, 197 Wash. 79, 84, 84 P.2d 372, 374
(1938) (noting that the police power authorizes the legislature to enact “regulations designed to
promote the public convenience, the general welfare, the general prosperity, and extends to all great
public needs, as well as regulations designed to promote the public health, the public morals, or the
public safety” (quoting State v. Pitney, 79 Wash. 608, 611, 140 P. 918, 919 (1914) (emphasis
added))).
170. Markham, 73 Wash. 2d at 424, 439 P.2d at 260 (“The public welfare embraces healthful
recreation and the protection of our national resources.”).
171. Ford, 144 Wash. at 112, 257 P. 243 at 244 (“[A] large discretion is necessarily vested in the
legislature to determine . . . what the interests of the public require.” (quoting Lawton, 152 U.S. at
136)); see also Weden, 135 Wash. 2d at 691, 958 P.2d at 280 (quoting same passage); McDermott,
197 Wash. at 83, 84 P.2d at 374 (“In the exercise of police power, the legislature is vested with a
wide discretion . . . to determine what the public interest requires . . . .”); Markham, 73 Wash. 2d at
422, 439 P.2d at 259 (“[W]hen the legislature has spoken, the public interest has been declared in
terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of
the public needs to be served by social legislation . . . .” (quoting Berman v. Parker, 348 U.S. 26, 32
(1954))).
172. Weden, 135 Wash. 2d at 691, 958 P.2d at 279. Note that a takings challenge would almost
certainly be mounted were the Washington Legislature to enact a law restricting the right of private
individuals to exclude the public from privately owned tidelands, thus necessitating that the courts
examine whether a right of public access to private tidelands is encompassed by the public trust 
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C. The Washington Legislature Recognizes Recreational Access to
Tidelands as a Public Need
The Washington Legislature’s understanding of public need with
respect to tidelands may be inferred from three statutes: the Shoreline
Management Act (SMA),173 the Seashore Conservation Act (SCA),174
and the Aquatic Lands Act (ALA).175 The SCA’s Declaration of
Principles eloquently summarizes the importance of tidelands access to
the public, particularly with respect to recreational opportunities:
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.176

doctrine.
173. WASH. REV. CODE ch. 90.58 (2006). The Supreme Court of Washington has itself
recognized that “[public] trust principles are reflected in the SMA’s underlying policy.” Orion Corp.
v. State, 109 Wash. 2d 621, 641 n.11, 747 P.2d 1062, 1073 n.11 (1987). See also A. Reid Allison
III, The Public Trust Doctrine in Washington, 10 U. PUGET SOUND L. REV. 633, 661 (1987)
(observing that “the SMA explicitly recognizes the interest of the public in its enjoyment of the
physical and aesthetic qualities of the natural shorelines of the state”).
174. WASH. REV. CODE §§ 79A.05.600–95.
175. Id. chs. 79.105–45. More generally, Prof. Ralph Johnson, in his seminal article regarding the
public trust doctrine in Washington, analyzed several statutes and in summarizing observed:
“Congruence between public trust values and several statutes governing use of the state’s natural
resources is common. These statutes have become increasingly important resource management
tools, and the extent to which they embody or reflect public trust values has increased over time.”
Johnson, supra note 18, at 542–48.
176. WASH. REV. CODE § 79A.05.600 (emphasis added). Furthermore, the Legislature explicitly
provides in a later provision that the SCA is to be administered “in harmony with the broad
principles set forth in RCW 79A.05.600.” Id. § 79A.05.615. This approach is consistent with the
role given to declarations of policy and statements of purpose by the courts. Specifically, the
Washington State Supreme Court has noted that “[d]eclarations of policy in an act, although without
operative force in and of themselves, serve as an important guide in determining the intended effect 
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In addition to noting in the SCA the increasing number of people
seeking recreational access to tidelands, the legislature in the SMA
expressed concern that a large portion of the state’s tidelands and
shorelands had been transferred into private ownership.177 Seeking to
preserve public recreational access to tidelands and shorelands, the
legislature ordered the state Department of Ecology to give preference to
several uses for “shorelines of statewide significance,”178 including,
regardless of ownership, the tidelands of the Pacific coastline and of
much of Puget Sound and the Strait of Juan de Fuca.179 Among these
preferred uses the legislature included “[i]ncreas[ing] recreational
opportunities for the public in the shoreline.”180 The legislature also
emphasized the importance of increasing public access to state-owned
tidelands in the ALA,181 and established the Washington State Seashore
Conservation Area under the SCA to provide public recreational access
to state-owned tidelands.182 The Department of Ecology includes
opportunity to reach the water’s edge—tidelands—in the definition of
“public access.”183
In sum, the public trust doctrine responds to public need. Public need,
in turn, is determined by the Washington Legislature. The legislature’s
identification of a need for increased public recreational access to

of the operative sections.” Hearst Corp. v. Hoppe, 90 Wash. 2d 123, 128, 580 P.2d 246, 249 (1978).
See also Wash. State Hous. Fin. Comm’n v. O’Brien, 100 Wash. 2d 491, 495–96, 671 P.2d 247, 250
(1983) (“In determining legislative motive, we give great weight to the statutory declaration of
purpose.”); Moore v. Moore, 20 Wash. App. 909, 913, 583 P.2d 1249, 1252 (1978) (“The statement
of purpose in an act is the ‘primary insight into the intent of the legislature . . . .’” (quoting
Anderson v. O’Brien, 84 Wash. 2d 64, 67, 524 P.2d 390, 393 (1974))).
177. See WASH. REV. CODE § 90.58.020 (“The legislature further finds that much of the
shorelines of the state and the uplands adjacent thereto are in private ownership; that unrestricted
construction on the privately owned or publicly owned shorelines of the state is not in the best
public interest; and therefore, coordinated planning is necessary in order to protect the public
interest associated with the shorelines of the state while, at the same time, recognizing and
protecting private property rights consistent with the public interest . . . .”).
178. Id.
179. Id. § 90.58.030(2)(e).
180. Id. § 90.58.020.
181. Id. § 79.105.030 (2006) (providing that “[t]he manager of state-owned aquatic lands shall
strive to provide a balance of public benefits,” which include “[e]ncouraging direct public use and
access”).
182. Id. § 79A.05.605.
183. WASH. ADMIN. CODE 173-26-221(4)(a) (2005), promulgated by the Department of Ecology
under the SMA, defines “public access” as follows: “Public access includes the ability of the
general public to reach, touch, and enjoy the water’s edge, to travel on the waters of the state, and to
view the water and the shoreline from adjacent locations.” 
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tidelands may be inferred from its repeated statutory attempts to address
this issue.
IV. WASHINGTON’S PUBLIC TRUST DOCTRINE INCLUDES
PEDESTRIAN PASSAGE OVER PRIVATE TIDELANDS
Although the Supreme Court of Washington recently denied the
petition for review of the public trust claim rejected by the Washington
State Court of Appeals, Division II, in its unpublished decision in City of
Bainbridge Island v. Brennan,
184 both legal and historical analyses
indicate that the public trust doctrine in Washington encompasses public
pedestrian passage over private tidelands, at least where necessary to
effectuate currently protected jus publicum rights. This outcome is a
logical extension of the court’s narrow interpretation in Caminiti of
private property rights burdened by the jus publicum.
185 Furthermore,
judicial espousal of at least limited public access to private tidelands
both harmonizes the public trust doctrine of this state with others that
recognize the Institutes of Justinian as a source of public trust rights,186
and responds to the Washington Legislature’s identification of a need for
increased public recreational access to tidelands generally.187
A. Establishing a Public Right of Pedestrian Passage over Private
Tidelands Allows both Private Tidelands Owners and the State to
Fulfill Their Public Trust Doctrine Obligations
Where private property ownership obstructs public access to
resources protected by the public trust doctrine, Caminiti strongly
suggests that the jus publicum is impermissibly impaired if the private
owner does not in some way allow public pedestrian passage across the
impeding property.188 There, the court found that private docks on state
tidelands did not circumscribe the jus publicum because state
administrative regulations required that dock owners allow the public to
walk over, under, or around such structures.189 The court’s explicit

184. No. 31816-4-II, 2005 Wash. App. LEXIS 1744 (Wash. Ct. App. July 20, 2005), review
denied, No. 77713-6, 2006 Wash. LEXIS 448 (Wash. May 31, 2006).
185. See supra text accompanying notes 100–104.
186. See supra Part II.
187. See supra Part III.
188. See, e.g., Caminiti v. Boyle, 107 Wash. 2d 662, 674, 732 P.2d 989, 996 (1987).
189. Id.
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condonation of activity that would normally constitute a trespass on
private property was not motivated by concern for public access to state
property per se. Rather, this judicial sanctioning of public passage over
private docks situated on state tidelands constitutes a primary basis for
the court’s conclusion that the statutory provision at issue does not
substantially impair the jus publicum.
190 The jus publicum, in turn, is
comprised not of the actual land protected under the public trust
doctrine, but of the interest always retained by the state in land protected
by the public trust doctrine.191 This interest—the public trust doctrine
rights to which the public is entitled and which the state must always
protect—is identical regardless of whether the protected tidelands are in
state or in private ownership.192 Because the Caminiti court made its
conclusion with respect to the jus publicum, rather than mere public
access to state tidelands, its holding applies with equal force to all
tidelands, regardless of state or private ownership.
The public trust doctrine effectively limits the title to private tidelands
insofar as the owner of such property cannot undertake any property
usage that substantially impairs the jus publicum.
193 A property owner
substantially impairs the jus publicum wherever public access to private
tidelands is barred, whether the private owner dredges and fills the
tidelands194 or, more simply, excludes all entry by members of the
public. At least where no other tidelands access is reasonably available
and the private tidelands owner excludes the public, conveyance of
tidelands property into private ownership also violates the state’s
obligation not to substantially impair the jus publicum.
195 No such
impairment occurs, however, so long as the private tidelands owner
allows public pedestrian passage where necessary to effectuate public
trust rights such as navigation, fishing, and swimming.196 Thus, neither
the state nor private property owners can satisfy their public trust
obligations unless the jus publicum encompasses a right of pedestrian
passage across private tidelands for members of the public attempting to
engage in protected activities.

190. Id. (“In any event, nothing in the statute substantially impairs the jus publicum.”).
191. See id. at 668–69, 732 P.2d at 994; supra Part I.A.1.
192. See Caminiti, 107 Wash. 2d at 669–70, 732 P.2d at 994; supra Part I.A.1.
193. See supra Part I.B.
194. See supra Part I.B.
195. See supra Part I.B.2–3.
196. See Caminiti, 107 Wash. 2d at 674, 732 P.2d at 996. 
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B. Broad Construction of Washington’s Public Trust Doctrine Is
Consistent with Judicial Recognition of the Institutes of Justinian
as a Codification of Public Trust Rights
The Institutes of Justinian declare that tidelands could be owned by
no one, consequently establishing a universal right of tidelands access.197
Many scholars thus identify this ancient Roman text as one of the
earliest codifications of public trust principles.198 The public trust
doctrine as we know it today, however, has evolved tremendously from
its communal beginnings. Because of this country’s inheritance of
property law by way of England,199 title to all tidelands in the United
States resides in the possession of either a state, the federal government,
an Indian nation, or a private party. Furthermore, federal jurisprudence
declares that, beyond certain minimum requirements, each state is free to
individually determine the public rights protected under its jus publicum
interest in all tidelands within its borders.200 Ten state judiciaries
nonetheless specifically recognize Emperor Justinian’s codification of
public trust principles and thus choose to continue in his tradition, albeit
within the confines imposed by tidelands ownership.201
Of the three such judiciaries that have addressed the issue of public
passage over privately owned tidelands, all have affirmed the existence
of such a right, at least where necessary to effectuate more widely
recognized public trust activities.202 Massachusetts does not protect
pedestrian passage over tidelands for its own sake,203 but protects this
activity when in aid of the enumerated public trust right of fishing.204
Similarly, the public trust doctrine in Michigan encompasses walking
along private property on the shoreline of the Great Lakes, as members
of the public would not otherwise be able to effectuate their traditionally
protected activities of fishing, hunting, and navigation.205 The New
Jersey public trust doctrine guarantees “reasonable access” to coastal

197. See supra Part II.A.
198. See supra Part II.A.
199. See supra Part I.A.1.
200. See Shively v. Bowlby, 152 U.S. 1, 26 (1894).
201. See supra Part II.B.
202. See supra Part II.B.
203. Opinion of the Justices, 313 N.E.2d 561, 567 (Mass. 1974).
204. Barry v. Grela, 361 N.E.2d 1251, 1251–52 (Mass. 1977).
205. Glass v. Goeckel, 703 N.W.2d 58, 74 (Mich. 2005). 
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Pedestrian Passage over Private Tidelands
843
beaches for recreational use by allowing pedestrian passage even over
private dry sand areas.206
The Supreme Court of Washington also looks to the Institutes of
Justinian as an ancient codification of public trust principles.207 Judicial
protection of public pedestrian passage over private tidelands would
therefore harmonize Washington’s public trust doctrine with that of
states that adopt a similarly broad view. Such harmonization may only
require public recreational access to private tidelands where necessary to
effect activities protected by the jus publicum.
C. The Washington Legislature’s Identification of a Public Need for
Increased Recreational Access to Tidelands Further Validates this
Construction of the Public Trust Doctrine
The Washington State Supreme Court explicitly declared soon after
confirming the existence of the public trust doctrine that the doctrine’s
scope derives not from navigable waters per se but rather from public
need.208 This underpinning in public need in turn caused the court to
recognize that the jus publicum interest encompasses not only the
traditional rights of navigation and fishing, but also recreational
activities such as boating, swimming, and water skiing.209 In fact, the
court has thus far found only one activity—the taking of shellfish from
private tidelands—to fall outside the scope of the public trust doctrine.210
By focusing on public need, the judiciary created an indirect role for
the Washington Legislature in defining the scope of the public trust
doctrine.211 The legislature determines public need with respect to
welfare and security under its inherent police powers;212 public welfare
includes recreational opportunities.213 The legislature has expressed
concern for public recreational access to tidelands214 in response to its

206. Raleigh Ave. Beach Ass’n v. Atlantis Beach Club, 879 A.2d 112, 121 (N.J. 2005).
207. See Caminiti v. Boyle, 107 Wash. 2d 662, 668–69, 732 P.2d 989, 994 (1987); see also
Rettkowski v. Dep’t of Ecology, 122 Wash. 2d 219, 239, 858 P.2d 232, 243 (Guy J., dissenting).
208. Orion Corp. v. State, 109 Wash. 2d 621, 640–41, 747 P.2d 1062, 1073 (1987).
209. Caminiti, 107 Wash. 2d at 669, 732 P.2d at 994 (citing Wilbour v. Gallagher, 77 Wash. 2d
306, 316, 462 P.2d 232, 239 (1969)).
210. State v. Longshore, 141 Wash. 2d 414, 429, 5 P.3d 1256, 1263 (2000).
211. See supra Part III.A–B.
212. See supra Part III.B.
213. Markham Adver. Co., Inc. v. State, 73 Wash. 2d 405, 424, 439 P.2d 248, 260 (1968).
214. See supra Part III.C. 
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prior conveyance of more than sixty percent of Washington tidelands
into private ownership.215 Furthermore, the legislature has specifically
established as a goal “[i]ncreas[ing] recreational opportunities for the
public in the shoreline,”216 including in the latter term both state-owned
and privately owned tidelands.217 The courts should now respond to the
legislature’s repeated calls and recognize as protected by the jus
publicum a public right of pedestrian passage across private tidelands, at
least where necessary to effectuate recreational activities also protected
thereby.
V. CONCLUSION
Although the Supreme Court of Washington has yet to squarely
address a right of public pedestrian passage over private tidelands, the
Washington public trust doctrine logically encompasses such a right, at
least where necessary to effectuate those water-based activities already
judicially recognized as protected by the jus publicum. Neither the state
nor private property owners can otherwise satisfy their obligations under
the public trust doctrine. Recognition of a right of public access to
private tidelands would also harmonize jus publicum rights among those
states that recognize the Institutes of Justinian as a source of public trust
principles. Furthermore, the public trust doctrine responds to public
need, which the Shoreline Management Act, the Seashore Conservation
Act, and the Aquatic Lands Act all strongly suggest includes increased
public recreational access to tidelands.

215. Conte, supra note 5, at 55–56; see also SCOTT, supra note 5, at 10.
216. WASH. REV. CODE § 90.58.020 (2006).
217. Id. § 90.58.030(2)(d). 



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