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Washington Law Review

Ewa M. Davison

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.

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