Oregon Beach Bill
In June, 1967, after months of stalling, the Oregon Legislature passed House bill 1601, which guarantees public access to the state’s beaches and establishes a state easement on all beaches between the low water mark and the vegetation line. The bill expanded upon an almost-60-year-old law that decreed public ownership of beaches between low- and high-water lines, but still allowed for privatization of the “dry sands” area between the high water line and the vegetation line. In 1966, a coastal motel owner barricaded the beach above the high water line, and the need for further protection was discovered. McCall’s bold response set the tone for the rest of his administration.
Beach Bill Signed; McCall Clears His Desk
By Matt Kramer
Associated Press Writer
|Gov. Tom McCall signed the beach bill into law Thursday and declared it “a momentous accomplishment of the 1967 Legislative session.””It is one of the most far-reaching measures of its kind enacted by any legislative body in the nation. This bill guarantees that Oregon’s coastline will remain secure for generation s to come,” the Governor said.The Governor cleared his desk of legislative bills, signing 43 and vetoing 2. This action came just 24 hours before the deadline in which he could sign bills into law. The two vetoes were minor bills.
‘Forced Out’ for Action
McCall took note that the beach bill almost died in the House Highways Committee. He said it was forced out only because the news media and then the public demanded. It.
The governor praised the efforts of the bill’s supporters, include Rep. Sidney Bazett, R-Grants Pass, committee chairman who almost alone kept the bill alive for weeks until support finally formed, and of Rep. Norman Howard, D-Portland, committee vice chairman.
Howard was on hand for the signing. Bazett, unable to attend, sent a telegram saying that the governor’s support was vital to the bill’s eventual success.
Property Rights Issue
Opponents of the bill contended it would violate private property rights. Supporters said it did not affect those rights, but preserved the sands for public use.
The bill designates the State Highway Department to represent the public in cases where property rights are at stake on the beaches. It also zones the beaches so that anyone wanting to building on the bare sands must get a permit from the state.
The measure carried an emergency clause and so went into effect at once.
From Kramer, M. (July 7, 1967). “Beach bill signed; McCall clears his desk.” Oregon Statesman. Salem, Oregon: Section 1:7.
Oregon Journal photographer Herb Alden took this photograph of Peter Frost (right) and an unidentified friend at an Oct. 28, 1968 rally in Cannon Beach. More than 200 people attended the event in support of a state-wide voter’s initiative that would have authorized a gas tax to buy privately-owned beach land. A volunteer group, “Beaches Forever,” teamed up with State Treasurer, later Governor, Robert Straub to back the measure, which failed by a vote of 464,140 to 315,175.
The initiative reflected concerns that the “Beach Bill,” signed into law the prior year by Governor Tom McCall, would not effectively protect Oregon beaches from private development projects. In 1967, the public ownership of Oregon’s coastline was threatened when Cannon Beach motel owner William Hay fenced off a portion of the beach for the private use of his customers.
At issue was how the public portion of the beach was defined. The law only defined state property as the so-called “wet sand” area between low and high tides. That meant the “dry sand” area, above the high tide, was unprotected from development. The State Highway Department, legislators, and McCall worked together to pass legislation that extended state ownership of the beach up to the vegetation line. They also strictly restricted development on the privately-owned portions of the dry sand. State and federal courts have largely upheld the state’s regulations against beach land developments.
Walth, Brent. Fire at Eden’s Gate: Tom McCall and the Oregon Story. Portland, Oreg., 1994.
Which way to the beach? Oregon’s beaches belong to the public
While most coastal states struggle over public beach access, a few, like Oregon, have the luxury of building on the legacy of some farsighted leaders and a determined public.
Public access to Oregon’s beaches has been a concern and a driving force on public attitudes about coastal protection, said Robert Bailey, Oregon’s Ocean Program Administrator. After a quarter century of work in Oregon’s coastal arena, Bailey has become fascinated with the historical roots of the state’s tradition of public access and coastal management.
Bailey notes that, as always, geography set the stage, and the twin themes were coastal travel and recreation. Rugged, densely forested mountains, cut by innumerable streams, made travel difficult in the early settlement days on the Oregon coast, and estuaries and rivers became water highways between the coast and interior valleys. Travel north or south, however, was confined to certain trails on marine terraces, or, more frequently, on the sandy ocean beaches that lay at the foot of steep coastal cliffs and along spits that formed estuaries.
In the late 1800s, several long stretches of certain beaches were designated by counties as public roads. Old photographs show horse-drawn stages skirting the incoming surf, and beach travel continued well into the age of the automobile. In fact, Bailey notes, cars used the beach in some stretches of the south coast right up to completion of the coastal (non-water) highway in 1932.
By 1890, beaches were popular recreational destinations. Railroads, punched through the mountains to the coast, carried weekend excursions from the populous Willamette Valley to resorts and beaches at Seaside, Newport, and Rockaway. The advent of automobiles and construction of roads to the coast brought even more recreational use.
But, like many states, Oregon had also begun selling public tidelands of estuaries and ocean shore to private owners by the late 1800s. A public furor arose, Bailey said, to such a level that in 1911 Oswald West was elected governor with the promise to halt this practice.
West’s promise could be kept only with the consent of the state’s lawmakers, many of whom were predisposed to “privatize” these public assets and to do so without antagonizing beachfront landowners.
“West’s approach to the 1913 legislature was to capitalize on the need to use the beach for public travel because there was often no other route,” Bailey said. “By getting the legislature to declare the ocean shore tideland as a public highway from the Columbia River to California, he was able to halt the sale of tidelands and assure that the public had access along the beach.”
That same 1913 legislature also created the State Highway Commission, which began to buy land along state highways for parks and scenic views. The construction of a coastal highway was accompanied by land acquisition for the travelers, land that became state parks, big and small. By 1950 there were 36 state parks along the coast, an average of one every 10 miles. Oregonians and visitors flocked to these parks.
In the early 1960s the State Parks Department began a beach access program to keep pace with demand. Bailey notes that “the 1965 legislature did a smart, and as it turned out, very important thing. It changed the designation of the beaches from a state highway to a state recreation area.”
Even so, Bailey said, “most people assumed that ‘the beach’ meant ‘the beach.'”
So it was a rude shock when, in 1966, an astute motel owner put a log barricade on the dry sands above the high tide line and declared the area reserved for motel guests. This act revealed the flimsy and uncertain nature of the public’s claim to the ocean beaches.
Governor Tom McCall, the legislature, key citizens, and various committees scrambled to find a solution to a problem 70 years in the making.
The 1967 Oregon legislature put on a show that lasted six months. A so-called Beach Bill, based on the Texas Open Beaches Act, had been crafted, which recognized public easements for use of all parts of the beach between a line of vegetation and the water, despite underlying ownership.
A compromise was reached and the logjam was broken. In July, McCall signed the bill that made law the already existing public rights to the dry sands beach.
But the reality is, Bailey said, that “even with this solid legal base for public access on the beach, we are increasingly concerned that the public can get to the beach. With all the recent development on the coast, there are warnings.”
For more information on Oregon’s public access program, contact Robert Bailey at 503-731-4065.
Original Text of the 1967 “Oregon Beach Bill”
|CHAPTER 601AN ACT[HB 1601]
Relating to the rights of the State of Oregon and the public in the Oregon seashores as established by prescription or otherwise; declaring and confirming such rights; providing for the acquisition of additional seashore lands; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
Section 1. The Legislative Assembly hereby declares it is the public policy of the State of Oregon to forever preserve and maintain the sovereignty of the state heretofore existing over the seashore and ocean beaches of the state from the Columbia River on the North to the Oregon-California line on the South so that the public may have the free and uninterrupted use thereof.
Section 2. (1) The Legislative Assembly recognizes that over the years the public has made frequent and uninterrupted use of lands abutting, adjacent and contiguous to the public highways and state recreation areas and recognizes, further, that where such use has been sufficient to create easements in the public through dedication, prescription, grant or otherwise, that it is in the public interest to protect and preserve such public easements as a permanent part of Oregons recreational resources.
(2) Accordingly, the Legislative Assembly hereby declares that all public rights and easements in those lands described in subsection (1) of this section are confirmed and declared vested exclusively in the State of Oregon and shall be held and administered in the same manner as those lands described in OHS 274.070.
(3) The Legislative Assembly further declares that it is in the public interest to acquire additional rights and to do whatever is necessary to preserve and protect scenic and recreational use of Oregons seashore and ocean beaches.
(4) No portion of those lands described in this section or any interest either therein now or hereafter acquired by the State of Oregon or any political subdivision thereof may be alienated except as expressly provided by state law.
Section 3. The State Highway Commission, when necessary, shall undertake appropriate court proceedings to protect, settle and confirm all such public rights and easements in the State of Oregon.
Section 4. The State Highway Commission, in accordance with ORS 366.345, may acquire ownership or interests in such lands abutting, adjacent or contiguous to the Oregon seashore and beaches as may be appropriate for recreational purposes where such lands are held in private ownership.
Section 5. (1) In order to promote the public health, safety and welfare, to protect the state recreation areas recognized and declared by section 2 of this Act and by ORS 274.070, to protect the safety of the public using such areas, and to preserve values adjacent to and adjoining such areas, the natural beauty of the seashore and the public recreational benefit derived therefrom, no person shall, except as provided by section 6 of this Act, erect, make or place any appurtenance, structure or improvement on any property that is within the area along the Pacific Ocean located between the extreme low tide and the elevation of 16 feet following natural topographic contour lines. The position of the landward boundary line shall be interpolated to follow natural topographic contour lines whenever interrupted by man-made structures. However, in low-elevation areas, including but not limited to sand spits and marshes and the mouth of streams, estuaries, rivers and creeks where the 16.00 foot contour nearest the ocean, in plain view, does not substantially parallel the shore line, the boundary line is 300 feet (but not in excess of the 16.00 foot elevation) inland from the contour line nearest the ocean which describes the 5.7 foot elevation. However, at the mouths of streams, estuaries, rivers and creeks in such low-elevation areas where the 5.7 foot contour nearest the ocean does not substantially parallel the trend of the shoreline, the 5.7 foot contour line is replaced, for measurement purposes, by a straight line extending across the mouth from a point nearest the ocean on the 5.7 foot contour and proceeding in a straight line to a similar point on the opposite side. All elevations and vertical measurements are referred to the United States Coast and Geodetic Survey Sea-Level Datum of 1929 through the Pacific Northwest Supplementary Adjustment of 1947.
(2) This section does not apply to structures, including a 25-foot yard on all four sides of a single-family residence, existing on May 1, 1967, or to publicly owned appurtenances, structures or improvements made with the approval of the State Highway Engineer for the safety or convenience of the public.
(3) This section and section 6 of this Act do not apply to appurtenances, structures or improvements subject to easement or license granted by the State Land Board under ORS 274.075 or to rule, regulation or permit of or from the State Land Board under ORS 274.080.
Section 6. (1) Any person who desires a permit to erect, make or place an appurtenance, structure or improvement on any property subject to section 5 of this Act shall apply in writing to the State Highway Engineer, on a form and in a manner prescribed by the engineer, stating the kind of and reason for the appurtenance, structure or improvement. Upon receipt of an application satisfactory to the engineer, the engineer shall cause notice of the application to be posted at or near the location of the proposed appurtenance, structure or improvement. At the next regular meeting of the State Highway Commission held more than 10 days after receipt of the application, the engineer shall announce the receipt of the application. The notice and announcement shall include the name of the applicant, a description of the appurtenance, structure or improvement and its proposed location and a statement of the time within which any interested person may file a request with the engineer for a hearing on the application. The State Highway Engineer shall give notice of any application, hearing or decision to any person who files a written request with him for such notice.
(2) Within 30 days after the date of the regular meeting at which the engineer announces the receipt of a satisfactory application, the applicant or any other interested person may file a written request with the engineer for a hearing on the application. If such a request is filed, the engineer shall set a time for a hearing to be held by the engineer or his authorized representative. The engineer shall cause notice of the hearing to be posted and announced in the manner provided in subsection (1) of this section. The notice shall include the time and place of the hearing.
(3) After the hearing on an application or, if a hearing is not requested, after the time for requesting a hearing has expired, the engineer shall grant the permit if approval would not be adverse to the public interest in preserving the recreational and scenic resources. In acting on an application, the engineer shall take into consideration the existing uses and structures and the future recreational and scenic needs in the vicinity of the proposed appurtenance, structure or improvement. If the engineer does not act on a satisfactory application within 90 days after the date of receipt thereof or, if a hearing is held thereon, within 60 days after the date of the hearing, the application shall be considered denied.
(4) Any person is entitled to appeal to the circuit court of the county where the property is located for a judicial review in equity of the action or failure to act by the engineer under this section. Any appeal taken under this subsection shall be made within 60 days after the date of the action or after the expiration of the period prescribed for action by the engineer under subsection (3) of this section.
Section 7. The State Highway Commission is hereby authorized to police, protect and maintain property that is subject to section 5 of this Act and property abutting, adjacent and contiguous to those lands described by ORS 274.070 that is available for public use, whether such right to use is obtained by prescription, easement, state-ownership or by permission of a private owner.
Section 8. The owner or person in control of any property subject to a public easement declared a state recreation area by section 2 of this Act or any property subject to section 5 of this Act shall not be liable for any injury to another person or damage to property of another resulting from a condition of the property within the easement or within the area subject to section 5 of this Act, unless the injury or damage results from a condition that he created or that he knew or, in the exercise of reasonable care, should have known was likely to cause injury to persons or damage to property.
Section 9. (1) In any court proceedings involving prescriptive rights of the public over property abutting, adjacent and contiguous to those lands described in ORS 274.070, an instrument executed and filed as provided by subsection (2) of this section shall be an act and declaration admissible as evidence of the intent of the owner or person in control of property to exercise dominion and control over his property.
(2) The declaration shall describe the property and shall be signed and acknowledged as provided by ORS 93.410. It shall state that the public is granted permission to use the property, or a specifically described portion of the property, and that the public use may be for certain purposes which shall also be described. The declaration shall be filed in the office of the county officer charged with the duty of filing and recording instruments or documents affecting title to real property.
(3) The permission granted may be revoked at any time by the grantor by a declaration revoking the permission signed, acknowledged and filed as provided by subsection (2) of this section. In any event, the permission granted shall terminate upon the assignment, grant, devise or other transfer or conveyance of the property or any interest therein by the owner or person in control of the property.
(4) Failure of the owner or person in control of property to execute and file the declaration as provided in subsection (2) of this section shall not imply an intent to relinquish dominion and control over his property.
Section 10. Nothing in this Act shall be construed to relinquish, impair or limit the sovereign title or rights of the State of Oregon in the shores of the Pacific Ocean as the same may exist before or after the effective date of this Act.
Section 11. The State Highway Commission is directed to survey the land on the shore of the Pacific Ocean from the Columbia River on the north to the Oregon and California state line on the south for the purpose of locating the boundaries of the area zoned by section 5 of this Act and also for the purpose of obtaining information and material suitable for a re-evaluation and redefinition, if necessary, of such boundaries so that the public rights and interests in the lands along the shore of the Pacific Ocean shall be preserved. The commission shall complete the survey and present its report to the Fifty-fifth Legislative Assembly.
Section 12. For purposes of assessment and ad valorem taxation, whenever real property is held subject to a public easement declared a state recreation area by section 2 of this Act, the true cash value of the property shall be taken into consideration for the restricted use imposed on the servient property by the easement.
Section 13. Section 12 of this Act is first operative on January 1, 1968.
Section 14. If one of the sections of this Act is declared unconstitutional, it is the intent of the Legislative Assembly that the remaining provisions of this Act remain in effect.
Section 15. Sections 1 to 11 of this Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and sections 1 to 11 of this Act shall take effect upon passage.
Approved by the Governor July 6, 1967.
Filed in the office of Secretary of State July 7, 1967.
Transcription of House Bill 1601 from Oregon Laws and Resolutions: Enacted and Adopted by the Regular Session of the Fifty-fourth Legislative Assembly Beginning January 9 and Ending June 14 1967. Salem, Oregon: Oregon Legislative Assembly.