Benella Caminiti:  The Public Trustee

- by Rachael Paschal Osborn

Washington Water Watch, 2003

Since 1976, a feisty, good-humored, intense Benella Caminiti has been working for your right to kayak, boat, birdwatch, beachwalk, view sunsets, and in general enjoy free access to the public shorelines and waterways of Washington State.  Now retired, Benella worked for more than twenty years at the UW’s Information Center on Primate Research.

But her greatest avocation has been her substantial volunteer work with local environmental organizations:  founder of the Seattle Shorelines Coalition, chair of Washington Environmental Council’s Coast & Shorelines Committee and, most recently, board member for the Center for Environmental Law & Policy.

The object of Benella’s volunteerism has been unwavering:  protecting and improving public access to Washington’s parks, beaches and shorelines. 

Attorney Peter T. Jenkins, now with the Center for Technology Assessment in Washington, D.C., worked with Benella in the 1980’s.  “I first saw her in action giving testimony at Seattle City Council meeting on shoreline rules.  I was immediately struck by her articulate speech – the most eloquent in a roomful of a dozen witnesses.  She had the ability to grab everyone’s attention through cogent thought and elocution.”

Benella’s advocacy has been not only cogent, but indefatigable.  Employing many tools to achieve her goals, she has testified at countless hearings and published 150 letters to the editor over the years.  A select set of environmental lawyers still receive regular “benella-grams,” containing annotated clippings that exhort and inspire.

Her most impressive tool, however, has been her espousal of the Public Trust Doctrine.  The public trust is a common law doctrine, quasi-constitutional in nature, which holds that navigable waters and the beds beneath are owned by the state, but held in trust for public use.  The public trust doctrine, in one form or another, has been adopted by every state in the union.

Benella first learned about the public trust while researching a challenge to a fast-food fish counter on WHAT PUBLIC SHORELINE?  A Department of Interior attorney introduced her to the doctrine, and she’s never looked back.

Traditionally, the PTD has protected public navigation and fishing.  Modern public trust cases extended the doctrine to protect recreational use of public waterways, as well as environmental values.  The California Supreme Court employed it to protect Mono Lake from a Los Angeles water grab.  The Hawaii Supreme Court recently applied the public trust to protect groundwater as well as traditional native Hawaiian agricultural practices.

In Washington, the public trust is woven through a century of jurisprudence.  It was Benella Caminiti, however, represented pro bono attorney Peter Jenkins, who pressed the Washington Supreme Court to formally adopt the doctrine into Washington law.  In 1987, Benella challenged a new statute that did away with the state’s leasing program for private recreational docks.  “It was special interest legislation that never got a public hearing,” explained Jenkins, “it was a log jam-clearing amendment that passed on the last day of the extra session. We argued that it would leave private docks unregulated, encourage their proliferation, and interfere with public rights to access tidelands.”

Benella’s concerns were not unfounded.  A 1982 study revealed that Washington has sold 60% of its tidelands into private ownership, limiting public access opportunities.

In Caminiti v. Boyle, the Court upheld the dock leasing statute.  But, in a lengthy analysis, it acknowledged that the public trust doctrine has always existed in Washington.  While the state may convey title to tidelands and shorelands, the private owner does not receive the full “bundle of sticks” that all first-year law students learn about in property law.  Instead, the state retains a “jus publicum” or public easement on the lands.  The state may no more dispose of these public rights than it may abdicate its police powers to run the government or preserve the peace.

Within months of Caminiti, the Court applied the public trust to protect the ecologically rich Padilla Bay, where a real estate development company proposed to dredge tidelands to create a “Venetian-style community.”  In Orion Corp. v. State, the Court nixed the project, finding that Padilla Bay had always been burdened with a public trust easement.  Orion’s claims to develop or receive compensation were rejected.

Benella still expresses disappointment about the decision in Caminiti.  But as it turns out, her case was a key stepping stone, leading to decisions that have saved several important places along Washington’s shorelines.  In addition to Padilla Bay, courts have applied the public trust to uphold a ban on personal watercraft in the San Juan Islands, and to prevent development on Puget Sound tidelands below Magnolia Bluff. 

Perhaps the biggest problem with the public trust is a general lack of knowledge about its contours.  Shoreline property owners sometimes claim a right to exclude the public from the beaches that front their properties.  But, as the Court noted in Caminiti, private ownership “cannot block public access to public tidelands and shorelands.” 

As for Benella, time has slowed but not stopped her.  She continues to advocate for public lands, recently working with Citizens for Parks to successfully fight a proposal to lease part of Green Lake’s shoreline to a circus-dinner theater outfit.  “Public park land and habitat areas are always under threat, whether at the crest of the Cascades or in our own neighborhood,” Benella said, urging citizens to monitor the actions of boards and agencies that manage public lands and waterways. 

As the sun sets over Puget Sound, beyond Queen Anne Hill where Benella lives in the house she’s occupied for 40 years, it is worthwhile to remember the value human society places on the waters we call home.  Next time you’re out walking on a beach or shoreline path, remember to thank Benella.