Questions For City

I have a better understanding of the City's position. I hope they will now clarify the following (formatting added):

...the defendants filed a "supersedeas bond" to stay carrying out and/or enforcement of the lower court decision until the appeal had run its course.

Questions for the City:

1. If the state supreme court refuses to hear the appeal, or if the court hears the appeal and rules against the libertopians, is that the official end-of-story? More to the point, will the public be able to enjoy Fletcher Landing the very next day?
2. Why is the public prevented by the City from enjoying Fletcher Landing, a public beach, in the meantime? (This is my main question and they still have not addressed it.)
3. When was the bond filed? Was it in the amount of $1,500 (as stated to me by a city employee off the record)?

Letter From City

A Fletcher Landing resident posted this letter from city attorney Paul McMurray:
_____________________

August 26, 2005
Re: City of Bainbridge Island v. Brennan, et al.

Dear Citizen:
A number of citizens have expressed concern regarding why the City has not removed the gate located at the Fletcher Landing road end. This frustration is understandable as the City has pursued resolution of this issue for a number of years. However, due to the continued pending status of this matter before the Division II Court of Appeals, it appears that the City is not legally able to remove the gate and open access to the public at this time. The following is provided as a further explanation of the current legal status of the matter.
Recently, the Division II Court of Appeals issued an opinion affmning the decision of Kit sap County Superior Court Judge Leonard Costello in the case of the City of Bainbridge Island v. Brennan et al. Part of Judge Costello's decision specifically allowed the City to remove "other vegetation and the chain link: fence, gate, lock, and posts obstructing Fletcher Landing if the same [were] not removed within 120 days from entry of judgment by the defendant"
The defendants appealed Judge Costello's decision in the Fletcher Landing case. At approximately the same time and as generally allowed by appellate rules, the defendants filed a "supersedeas bond" to stay carrying out and/or enforcement of the lower court decision until the appeal had run its course. On July 20, 2005, the Court of Appeals issued its opinion affirming the decision of Judge Costello. Unfortunately, the appeal is still pending as the defendants filed a motion for reconsideration with the Court of Appeals on August 9, 2005, and the supersedeas bond remains in effect As such, it appears that the City is not legally able to remove the gate and provide access at Fletcher Landing.
If the motion for reconsideration is denied and ifthe defendants do not seek review by the Washington State Supreme Court, the Court of Appeals will issue a mandate that finalizes their decision. At that time, the City will be in a position to take action to remove the gate and provide access at Fletcher Landing.
Hopefully this clarifies the situation for you. Thank you for your expressing you concerns.
_____________________

This synchs with what I was told by McMurray last week.

Empty Words

An article about Fletcher Landing appeared in the Kitsap Sun yesterday that succinctly outlines the City of Bainbridge Island's nonsensical libertopian position on Fletcher Landing. Here are selected quotes followed by commentary.

Sun: City Attorney Paul McMurray said the favorable ruling doesn't yet give the city the right to open the fence. "As long as the case is still pending before the state appellate court, we're really not in a position to open that gate up," he said.

Bearing in mind that Mr. McMurray has been on the job for just one week and has been thrust into an impossible situation... Notice what he did NOT say: No citation of law. No quotes from a judge. No internet links. No new facts.

Argument by repetition doesn't cut it. Unless and until The City of Bainbridge Island cites a court ruling, these words ring hollow. The legal system of this country is based on written law. "Because we say so" is unacceptable.

Let's play at libertopia for a moment. Let's pretend, as implausible as it seems, that a secret legal proceeding prevents the City from removing the fence, and that the July 20 state appeals court ruling is (inexplicably) invalid...

How in the name of Odin does shadow law compel the City to act as a private security force on behalf of land-grabbing libertopians?

The ruling of the state appeals court is crystal clear: Fletcher Landing is a public beach. We the public are allowed to use this public beach in accordance with state law and in accordance with the US constitution. The City of Bainbridge Island does not have the right to overrule state and federal law.

Sun: Should the court not reconsider, the case could be heard in the state Supreme Court.

It took almost two decades for the case to work it's way to the state appeals court. How many more decades might it take for the state supreme court to rule? And if the libertopians lose in the state supreme court, what prevents a multi-decade federal appeals process?

This is a pathetic joke.

Sun: Bainbridge Police Lt. Phil Hawkins disagrees. "Anybody who goes out there and destroys property is committing a criminal act," he said.

Based on my ongoing research, and with a tip of the hat to Kafka, it may be true that I broke the law when I cut the lock off. But even if true, that doesn't mean the public is not allowed to use the beach. It just means we aren't allowed to remove the fence.

Sun: "The right of way is in dispute." [quoting Lt. Hawkins]

Lt. Hawkins, you are parroting libertopian nonsense. The libertopians can dispute Fletcher Landing until they are blue in the face. That doesn't change the fact that, in the meantime, the beach is public. The police department is not a private security force on the beckon call of wanton, unlawful land-grabbers.

(Note to self: For a lark, dispute the ownership of Eagle Harbor.)

The Missing Sign

A curious fact: There is no No Trespassing sign posted at Fletcher Landing, the place where the police say that I trespassed.

If I were a legitimate property owner experiencing trespassing problems, posting a No Trespassing sign would be the first logical action.

In fact, if I were a libertopian trying to create bogus facts on the ground, I'd wallpaper Fletcher Landing with No Trespassing signs.

Yet no sign. I speculate that the libertopians have been compelled not to post a No Trespassing sign.

If there are any attorneys out there, I'm all ears if someone can inform me...

If and when I am charged with trespassing, who will I have trespassed against?

Can no trespassing be enforced when there is no sign posted?

Article in Review

An article appeared in Bainbridge Island Review today, August 24, titled Road end opened, closed. Here are selected quotes from the article with my comments interspersed. (Sorry no link. It's not online to my knowledge.)

Review: The road end has been gated and locked for 10 years.

According to the state appeals court, the fence was erected in 1986.

Review: The gate has remained locked, while neighbors decide whether to seek reconsideration of the appellate court ruling or petition the Supreme Court for review.

Meanwhile the City of Bainbridge Island endlessly twiddles its thumbs, allowing the libertopians to define facts on the ground despite that every court ruling says the beach is public. How many more decades can this go on?

Review: Lisa Neal, one of the neighbors doing battle with the city, had previously asked the public to avoid the road end "until the matter is completely resolved, perhaps by a higher court".

Welcome to full-on libertopia, where greed and disregard for the law is unabashed.

How many more decades Ms. Neal?

Review: Chester's actions were investigated for possible charges of trespassing and malicious mischief. But Bainbridge police issued a statement Tuesday that no charges are imminent.

On August 19, the police explicitly confirmed to me (via telephone) that I was being charged with a crime. This was confirmed again by a member of the city council on the 22nd.

To the Bainbridge Police and/or prosecutor: Please communicate my status to me in writing.

Police (per the Review): Due to reports in the media of the court's initial finding that the access was open to the public and being unaware that the case had been appealed, the subject thought he had the right...

Thought and still think. The libertopians can appeal until they are blue in the face. In the meantime it's a public beach per every court ruling.

I point to state law, which the police are required to uphold. The City points to libertopian shadow law. Regardless if the City chooses to be passive about the fence, the police have no right (to the best of my knowledge) to prevent the public from enjoying this public beach.

Until a vaguely coherent argument is presented by the City, I recognize the ruling of the state appeals court as definitive: Fletcher Landing is public.

Shadow Law

I had a pleasant and bizarrely informative meeting with the city administrator and the new city attorney. (I'm not an attorney.)

As best I understand, the administrator is the equivalent of a city manager and a virtual co-equal to the mayor in a general sense. In advance, she declined my request to tape record the meeting.

The attorney started just two days ago. Understandably, he is not well acquainted with the lengthy case. So even though he (graciously) shed some light on the City's (supposed) constraints, all of the City's rationale is (from my perspective) purely in the realm of shadow law.

I cited facts: the unequivocal WA state appeals court ruling.

They cited shadow law. No case number. No quotes. No links.

I was advised that I may have to file a freedom of information request in order to understand the "real" law.

No joke.

We had some (genuinely) fun side conversations, paraphrasing...

Me: What if I file a $1500 bond like the libertopians did, and claim that I own Eagle Harbor?

Them: You can't do that.

Me: Why not?

Me: Am I allowed to place Free Fletcher Landing signs in the same places as the election signs?

Them: Yes. In fact, the council was recently forced to liberalize the law. You can put them anywhere in the X(?) foot easement.

Me: What does that mean?

Them: Um, well, in fact, your signs are not election signs -- the ordinance does not apply here.

Me: Does that mean my signs have less, the same, or more leeway than the election signs?

Them: I don't know.

Me: OK. It's important to me that I act lawfully. How am I supposed to figure it out if you can't figure it out?

Them: Good point.

Me: Is it unlawful for ordinary citizens to remove my signs?

Them: Yes.

I was cautioned repeatedly not to set foot on Fletcher Landing, based entirely on undocumented, nonsensical shadow law.

Placators Extraordinaire

It is most uncommon for there to be large waves in Puget Sound. It would be doubly apt, then, to think of Bainbridge Island as make-no-waves central. This was evidenced by my phone conversation with a placator extraordinaire -- a member of the Bainbridge Island City Council. Paraphrasing...

Mr. P: It's outrageous that you are being charged with a crime. I'm going to work with you and the police are going to work with the neighbors [the libertopians] and we're going to get you folks together to resolve this dispute amicably.
Me: Er, ok.
Mr. P: [all of a sudden mumbling] You'll apologize to the neighbors and then...
Me: Wait a sec! I'm not even remotely apologetic. The chances that I will apologize are exactly zero.
Pr. P: Um, ok, let me figure something out and I'll get back.

I suspect this mentality is at the heart of the City's bizarre and unlawful handling of Fletcher Landing.

Put it in Writing

All of a sudden I'm popular. The police want to talk to me. A member of the city council wants to talk to me. The city administrator wants to talk to me.

You people are confusing. I have yet to hear a coherent explanation for the City's libertopian fantasy. It is my distinct impression that none of you are as aware of the facts as am I, nor aware of the law.

Leading to a simple request: Could you please put it in writing? (Preferably with citations to the state appeals court decision.)

Especially the police. I've been ordered not to set foot on Fletcher Landing or else I will be arrested (and presumably charged again). I could use some clarity here.

Paraphrasing...

Officer: If you set foot on Fletcher Landing you will be arrested.
Me: Am I allowed to access the beach via boat?
Officer: I'm not sure. I'll check and get back to you.

Well?

Welcome to Libertopia

Here's what a public beach looks like in Libertopia (aka Bainbridge Island, WA):

Mayor Kordonowy, how do you explain this?

It's an election year. I look forward to hearing explanations from the candidates for mayor and city council.

Please Enjoy Fletcher Landing

On August 14, 2005 I made my first visit to Fletcher Landing. I cleared blackberry bramble from the path to the beach and erected a small sign.

While I was clearing the bramble, some friendly folks ambled by and, as if a daily routine, slipped through a gaping hole in the fence, and proceeded to enjoy a sunny morning on this beautiful (and historic) public beach. (And why not? It's perfectly legal.)

I was ordered by neighboring libertopians not to clear the bramble from the path, and to leave the property. (I was also ordered not to use my video camera to record events. Funny that!)

Several hours later, the sign had been removed.

Kafkaesque

The City of Bainbridge Island is prosecuting your humble narrator for attempting to enjoy the beach at Fletcher Landing. And I've been informed by the police that I will be arrested if I attempt to enjoy it again (although the officer wasn't sure if that included the beach, or just the road-end).

More on my personal travails later. First this gem from The Kitsap Sun, July 21, 2005:

The decision, written by Judge Christine Quinn-Brintnall of the Washington Court of Appeals, affirms an earlier ruling in 2002 from Kitsap County Superior Court Judge Leonard Costello, that the Fletcher Landing road-end was built and designed to be public.

Judges C.C. Bridgewater and J. Dean Morgan concurred.

Blair Burroughs, an attorney for the city in the case, said that he was "delighted" with the decision and that he was just finishing building a kayak. "I'm planning on using it at Fletcher Landing," he said.

Yup, that's right. This is an attorney for the City of Bainbridge Island -- the same city that is bringing charges against me.

Hey Blair, wanna go kayaking? I'll meet you at Fletcher Landing.

The Court Decision Is Clear

WA State appeals court ruling, July 20, 2005:

A dedicated right-of-way laid out to navigable waters is presumed to provide access to the water's edge, and the record owners were on notice of the public nature of the Tidelands when they purchased their properties. We hold that there was no boundary change by acquiescence and reject the record owners' asserted affirmative defenses. We hold that the trial court did not abuse its discretion in ordering that a fence encroaching on the right-of-way be removed. ...

'where a road extends to navigable water, it is presumed that the person dedicating the road intended to extend that road across the Tidelands to the water. The evidence is insufficient to rebut this presumption.' We [the appeals court] affirm.

Brief History

Sourced from the WA state appeal court ruling:

1898: Peder Erlandsen purchased 32 acres on Bainbridge Island adjoining the shores of Fletcher Bay (excluding state-owned tidelands).

1899: Erlandsen and other local property owners petitioned the county to build a road across Erlandsen's property to the beach. The commissioners approved, and County Road No. 105 was built and opened within five years.

1904-1909: A wharf was built extending west into the bay.

1914: A private company began ferry service between the Fletcher Bay wharf and the Kitsap Peninsula. The public accessed the ferry via the county road and the wharf.

1923(?): The ferries began to carry cars.

1924: Erlandsen dedicated to the public a right-of-way over and across the Tidelands.

1941: Ferry service from the Fletcher Bay wharf ends.

1947: The wharf was dismantled.

1947-1985: The public continued to use the road end tidelands to access Puget Sound.

1986: Nearby property owners erected a fence and installed a gate, blocking access to the Tidelands.

1986: The lock was removed and the gate left open, and members of the public resumed using the Tidelands.

1991: The City of Bainbridge Island annexed the entire island in 1991 (from Kitsap County).

1996: The lock was reinstalled.

1999: The City of Bainbridge Island sued to quiet title to the road and Tidelands, and prevailed.

1999-2005: The neighbors refuse to take down the fence. The gate remains locked.

2005.July: The state court affirmed that Fletcher Landing is public.

(The gate remains locked.)

Fletcher Landing is Public

Fletcher Landing is a small public beach located on Bainbridge Island, Kitsap County, WA, USA.

In the mid 1980's, neighbors of Fletcher Landing (aka "the libertopians") erected a fence and claimed Fletcher Landing as private property. Kitsap County fought the libertopians in court and prevailed.

Inexplicably, the fence was allowed to remain while an appeal dragged out over the following 19 years.

Finally, the case was decided by the Washington state appeals court in July, 2005. As expected, the libertopians lost. Fletcher Landing, including the access road and the beach, is still decidedly public.

Yet: The fence remains. The gate is locked. And strangest of all, the City of Bainbridge Island is (unlawfully) prosecuting "trespassers" such as me. (Or so I'm told).

I have a lot of catching up to do before I can post in real time. In the interim, the most important fact is this (lengthy) ruling by the WA state appeals court, docket number 31816-4-II: courts.wa.gov