This is a holdover from the early days of the state, when loggers and shellfish farmers were allowed to purchase tidelands from the government. While the state no longer permits people to purchase tidelands, many areas of the beach have been passed down through generations and remain private property.
However, Oregon’s law allows for a perpetual easement, or public path, across dry sand between the high watermark and the vegetation line. Several notorious lawsuits have come through the courts in recent years, including Vinod Khosla closing off a private road which had long been used by the public to access Martin’s Beach, and David Geffen’s efforts in the early 2000s to block the public from accessing the beach in front of his former Malibu home.
Contact the California Coastal Commission if you suspect a homeowner is illegally blocking public access to the coast. Mr. Rick Misstate Representative, 23rd DistrictRoute 4, Box 951 Bremerton, Washington 98310 Cite as: AGO 1976 No.
To the extent that the above question is answered in the affirmative, how does this conclusion apply to Puget Sound beaches which have been sold or leased by the State of Washington to private parties and how does it apply to lands within the exterior boundaries of Indian reservations?” In posing the above questions you have made note of the fact that this office, in 1970, issued an opinion (AGO 1970 No.
27 ]) regarding the right of members of the public to “. Except those ocean beaches situated within the boundaries of the Pinault Indian Reservation (or, possibly, the Make, Quilpué and How Reservations as well if covered by similar treaties a point which we did not there specifically determine) we concluded that such a right should be deemed to exist.
Your present question, in essence, is whether the same conclusion is properly to be reached in connection [[Orig. Page 2]] with the use and enjoyment, by the public, of beach areas along Puget Sound.
27 to the question there posed was, as you will readily note from a reading of that opinion, based upon several distinct factors. First, and perhaps most important, we were there able to find the existence of a general, customary and habitual use of the ocean beach areas by the public, continuously over the years, since long before statehood.
And thirdly, we also found a further legislative recognition of this same general status of our ocean beaches in the Washington Seashore Conservation Act, chapter 120, Laws of 1969 (RCW 43.51.650-43.51.685) as amended. Conversely, none of these factors upon which we relied in our earlier opinion may be said to exist with respect to the beach areas along Puget Sound.
Although such usage as is necessary to give rise to some form of prescriptive easement may, possibly, have occurred over the years with respect to individual parcels of beach areas along the sound (see, RCW 7.28.050, ET seq.) There appears to be no basis for a finding of such general, customary and habitual, continuous, use of Puget Sound beaches, verse, as would be necessary in order to support a claim of public right under, for example, a case such as State ex rel.
And by the same token, of course, since the Seashore Conservation Act does not apply to Puget Sound beach areas the reliance which we were able to place upon that legislation in our earlier opinion cannot be duplicated here. Therefore, for all these reasons, it is the opinion of this office that (contrary to the situation which exists on our ocean beaches) members of the public in this state do not “.
The beaches in the far north are mainly located in Olympic National Park, and on Indian Reservations. It is home to the Quilpué Indian Tribe, and you must have their permission to enter the land and use the beach.
Reproduced under a Creative Commons license with the kind permission of Bardeen on Flickr Here you will find six glorious beaches that you can easily walk to from the road along a short path.
It lies at the foot of the Olympic Mountains, just a short distance inland from the Pacific Ocean. This stretch of highway offers some of the most glorious scenery and the best Washington State beaches.
Today, it is a very popular vacation destination with a wide variety of activities and accommodations. Ocean Shores has a wide variety of motels, hotels and fabulous convention facilities.
The highway loops west towards the southern point entrance to Grays Harbor. They are fantastic antiques shops, an aquarium, bird watching opportunities, RV parks and much more.
Reproduced under a Creative Commons license with the kind permission of Michael D Martin on Flickr This small shoreside community is home to the Shoal water Bay Casino.
You won't find the usual touristy things like a row of motels, hotels or a string of restaurants. In fact, if you arrive from the north, you will feel more like you are in a rural area than a touristy beach town.
The area is home to six unique communities, Westerville, Calcutta, Ocean Park, Long Beach, Sea view and Waco. However, the slow and windy Washington highway 4 offers a much more scenic and delightful drive.
Long Beach Peninsula is located just north of where the Columbia River flows out into the Pacific Ocean. It runs north from the Columbia River and forms a physical barrier for Willa pa Bay.
The Columbia River washes a lot of sand up the west coast, causing the beaches to continually fill. Grounded ships from the late 1800s are almost completely hidden by sand and now sit far from the shore.
The beach is heavily patrolled and the 25 mph speed limit is strictly enforced. Washington State beaches are extremely popular, so be prepared for plenty of crowds.
(1) Without regard to any other property interests or rights which the state may have, members of the public have the right to use and enjoy the wet and dry sand areas of the ocean beaches of the state of Washington by virtue of a long-established customary use of those areas. (2) The right of members of the public to use and enjoy the wet and dry sand areas of the ocean beaches of Washington by virtue of a long-established customary use of those areas does not presently extend to such ocean beach areas as are within the exterior boundaries of the Pinault Indian Reservation.
By your letter you have limited your request to the application of the doctrine of customary rights to the ocean beaches of this state. Accordingly, we will not discuss in this opinion any of the other theories which might also support the right of the public to the free use and enjoyment of the ocean beaches.
Likewise, consistent with the limitations expressed in your question, we shall not deal with any other area of the state save the beaches of the Pacific Ocean, from Cape Disappointment at the mouth of the Columbia River north to Cape Flattery. Furthermore, we shall not deal with any questions of title, nor of the location of the line dividing the state owned tidelands from the uplands, whether in private or public ownership.
For purposes of this opinion we adopt the following definitions of the areas concerned: 1 / Wet Sand Area That area over which the tide ebbs and flows on a regular, daily basis; generally below, or seaward of, the line of mean high tide.
Your request, as you point out in your letter, is prompted by the recent decision of the Oregon Supreme Court in State ex rel. In Hay, the Oregon Supreme Court affirmed a decree of the Circuit Court for Clasp County enjoining the defendants Hay from constructing fences or other improvements “.
In essence, the Oregon Supreme Court held that because the public had customarily and habitually used the beaches of the Pacific Ocean in that state as a public recreational area at least since the advent of recorded history in the Pacific Northwest, such use had ripened into the status of law, applicable along the entire coast of the state of Oregon from the mouth of the Columbia River to the California border. Before proceeding further, we should note the historical fact of the public use of the beaches which the Oregon Supreme Court found to exist.
“In order to explain our reasons for affirming the trial court's decree, it is necessary to set out in some detail the historical facts which lead to our conclusion. Thus, from the time of the earliest settlement to the present day, the public has assumed that the dry-sand area was a part of the public beach, and the public has used the dry-sand area for picnics, gathering wood, building warming fires, and generally as a headquarters from which to supervise children or to range out over the foreshore as the tides advance and recede.
In the Cannon Beach vicinity, 5 / state and local officers have policed the dry sand, and municipal sanitary crews have attempted to keep the area reasonably free from man-made litter. The dry-sand area is unstable in its seaward boundaries, unsafe during winter storms, and for the most part unfit for the construction of permanent structures.
While the vegetation line remains relatively fixed, the western edge of the dry-sand area is subject to dramatic moves eastward or westward in response to erosion and accretion. For example, evidence in the trial below indicated that between April 1966 and August 1967 the seaward edge of the dry-sand area involved in this litigation moved westward 180 feet.
At other points along the shore, the evidence showed, the seaward edge of the dry-sand area could move an equal distance to the east in a similar period of time.” The fact of such use, along with its nature and continuity, is a matter of such public knowledge in this state, that we have no hesitation in taking notice of its existence.
The requirements for the application of the doctrine of custom are set out in 1 Blackstone, Commentaries 75-78. They can be summarized as follows: A custom, in order to achieve the status of law, must be ancient, continuous, peaceable, reasonable, certain, general (that is, obligatory on each member of a class to which it has reference), and not repugnant to or inconsistent with other customs or other law.
7 / The public use of the wet and dry sand areas of the ocean beaches in this state meets those requirements. In making this statement we are aware that some English courts have indicated that a custom, to be applicable as law, must have existed from the time of legal memory in the British Isles, or the commencement of the reign of Richard I, the year 1189, (see, Money v. Osman, 159 Eng.
Reprint 621) but such a rule is obviously inappropriate in a nation which has not yet celebrated the 200th anniversary of its political existence. In that regard we think the reasoning of the Oregon Supreme Court in Hay, supra, to be more correct.
The Oregon court further said, in recognizing and rejecting the argument that the doctrine of custom was inappropriate because of the relative youth of that state: “On the score of the brevity of our political history, it is true that the Anglo-American legal system on this continent is relatively new.
In the term 'laws' is included custom and usage, when once settled; though it may be 'comparatively of recent date, and is not one of those to the contrary of which the memory of man runner not, We have previously taken notice of the public's habitual use of the wet and dry sands area of the ocean beaches from the time of the earliest settlement of the Pacific Northwest to date.
Such use has been continuous; that is, it has been exercised “without an interruption caused by anyone possessing a paramount right.” Such use has been peaceable; that is, no member of the public has ever been required to resort to any but peaceable means to participate in whatever recreational endeavor he desired in the wet and dry sand areas of the beaches.
It is clear that the most appropriate use of the beaches is as a public recreational area. A customary use consistent with that appropriateness clearly satisfies the requirement of reasonableness.
“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.
Even recreational uses must be regulated in order that Washington's unrivaled seashore may be saved for our children in much the same form as we know it today.” RCW 43.51.655 establishes the Washington state seashore conservation area between the lines of ordinary high tide and extreme low tide, or, where applicable, between the seashore conservation line and the line of extreme low tide.
RCW 43.51.665, which provides for the principles to be followed in administering the seashore conservation area, states, in pertinent part: Where feasible, the area shall be preserved in its present state; everywhere it shall be maintained in the best possible condition for public use.
All forms of public outdoor recreation shall be permitted and encouraged in the area, unless specifically excluded or limited by the commission. It is satisfied both by the length and continuity of the public's use of the beaches, by the numbers of people so using the area, as well [[Orig.
Page 9]] as by the character of the land itself, which as a practical matter limits the use thereof to recreational purposes. The public's use of the ocean beaches of our state as a matter of right has been general.
Its quality has been the same throughout the length of the seashore of this state, and no individual landowner has ever felt free to exclude the public from the dry sand area fronting on his property, nor are we aware of any other action taken by any individual landowner which in any way evidenced a nonrecognition of the public's rightful use of the wet and dry sand areas fronting on his property. The public's use of our beaches is neither repugnant to, nor inconsistent with, any other custom or law.
“The shore and beach of the Pacific Ocean, including the area or space lying, abutting or fronting on said ocean and between ordinary high tide and extreme low tide (as such shore and beach now are or hereafter may be) from the Columbia River or Cape Disappointment on the south to a point three hundred feet southerly from the south line of the government jetty on Peterson's Point, state of Washington on the north, be and the same are hereby declared a public highway forever, and as such highway shall remain forever open to the use of the public.” Section 2 of the same act (RCW 79.16.171) provides that no part of the lands mentioned shall ever be sold, conveyed, leased or otherwise disposed of.
“That portion of the public highway as established by chapter 54, Laws of 1935, chapter 105, Laws of 1901, and chapter 110, Laws of 1901, lying between the line of vegetation and the line of mean high tide, as such lines now are or may hereafter be, is hereby declared a public recreation area and is hereby set aside and forever reserved for the use of the public.” While it is true that the legislature, in enacting these statutes, may have held an incorrect understanding as to ownership of part of the land involved (see, Hughes v. Washington, 389 U.S. 290, 19 L. Ed.2d 530, 88 S. Ct.
The court in Hughes seems clearly to have been saying that in 1901 the legislature, in enacting the highway reservations, was merely declaring what already existed as a public right. The public's rights in the ocean beaches have received more recent legislative recognition.
In the seashore conservation act, cited and discussed earlier in this opinion, the legislature again reaffirmed and restated the public's time honored rights to the use and enjoyment of the ocean beaches of this state. In so far as it dealt with the public's use of the ocean beaches this act must also be held to have been merely declarative of existing rights.
“No provision of this 1969 amendatory act shall be construed as affecting any private or public property rights.” The doctrine of custom is not foreign to this state, and its application in these circumstances is not without clear precedent in other jurisdictions.
At the time of its reception by this jurisdiction, custom, and in particular, the public's right to use certain beaches of England and Scotland by virtue of custom, was a part of the English common law. VII, p. 878 (House of Lords 1849), a question similar to ours was presented to the highest court of Great Britain.
The residents of the neighboring town of Porto Hello and of the surrounding countryside had “for time immemorial been in the habit of using the sands for the purpose of bathing, riding, and walking, and the Royal Troops have been in used to be exercised and reviewed upon them.” Therefore, as often as the ordinary spring-tides rise to it, the inhabitants of Portabello, Lath, Mussel burgh, and the adjacent villages, are cut off, not only from the means of recreation but from the right of way which they have immemorially enjoyed.
Looking only to the record, it is quite clear that the public are, and have long been, in the enjoyment of these rights. But it has often been held in England, and the doctrine resting on sound principles it must be equally applicable to Scotland, that a party in possession, even with a doubtful title, shall be [[Orig.
Therefore, irrespective of the right of the Crown to the property of the sea-shore, and without touching whether the sea-shore extends to the flood-mark of ordinary spring-tides, or only of neap-tides, I am of opinion that, by reason of the easement enjoyed by the public over the locusinquofrom which they are now excluded, the Officers of State had a right to apply for this interdict, and that it was properly granted in their favor.” In another English case, decided after our statehood, the English Court of Chancery recognized the right of a group of fishermen to dry their nets on the “beach ground” next to the foreshore, based on long and customary use.
588 (1889), decided nine months before Washington became a state, the Territorial Supreme Court found the doctrine of prior appropriation in the field of water rights to have been based on a local custom adhered to by all in the locality, and recognized by the United States. The court further held that statutes which extended the right to appropriate water only to landowners did not restrict the right of prior appropriation where it existed by local customs and the decisions of the courts, where such local customs and laws extended the right not only to landowners but to any others who actually made the appropriation.
This state, or at least that portion of it east of the Cascade mountains, was included within the territory where the right to prior appropriation of water for mining and other beneficial purposes was recognized by the courts and the law-making power, and that such right was established by a custom so universal that courts must take judicial notice thereof. “ We therefore hold that the right to prior appropriation as recognized by said act of congress existed as a part of the laws and customs of the locality.
The same doctrine had earlier been recognized by the United States Supreme Court, again in the water law field, as giving rise to vested private rights, except as against the government. It is clear, therefore, that although the Oregon Supreme Court in the Hay case, supra, may have been the first to apply the doctrine of custom in the circumstances here presented, that the doctrine itself, and the vesting of important [[Orig.
Page 15]] rights, both private and public, under it, is neither new nor strange to the courts of this jurisdiction. The secondary question which must be considered in this opinion is, does the doctrine of custom apply in this state to support the public's right to use the beaches within the exterior boundaries of the Pinault Indian Reservation at the present time.
The public is presently denied the use of both the wet and dry sands area of the beaches fronting on the Pinault Indian Reservation. Although the public had long been accustomed to using those beaches, the Pinault Tribal Affairs Council, on August 23, 1969, ordered the beaches fronting on its reservation closed to all nonmembers of that tribe.
The Pinault and Guillaume Indians, on July 1, 1855, and again on January 25, 1856, signed a treaty with the United States, which was proclaimed by President James Buchanan on April 11, 1859. Shall, however, be reserved, for the use and occupation of the tribes and bands aforesaid, a tract or tracts of land sufficient for their wants within the Territory of Washington, to be selected by the President of the United States, and hereafter surveyed or located and set apart for their exclusive use, and no white man shall be permitted to reside thereon without permission of the tribe and of the superintendent of Indian affairs or Indian agent.
Thence due east, and with the line of said survey, 5 miles to the southeast corner of said reserve thus established; thence in a direct line to the most southerly end of Quintet Lake; thence northerly around the east shore of said lake to the northwest point thereof; thence in a direct line to a point a half mile north of the Queetshee River and 3 miles above its mouth; thence with the course of said river to a point on the Pacific coast, at low-water mark, a half mile above the mouth of said river; thence southerly, at low-water mark, along the Pacific to the place of beginning.” There is no doubt then from the language of the Executive Order that the beaches, including the tidelands, of the Pacific Ocean were included within the exterior boundaries of the reservation set aside for the Pinault Indians.
The effect of that Executive Order was to withdraw those lands from the public domain, and to reserve them for the exclusive use and occupancy of the Pinault and other named Indian tribes. After the establishment of the Pinault Reservation, any activity by nonmembers of the tribe within the boundaries of the reservation, including the beaches, must be considered to have been carried out at the sufferance of the tribe.
In saying this we are mindful of the fact that § 1, chapter 105, Laws of 1901 (RCW 79.16.160) and § 1, chapter 54, Laws of 1935 (RCW 79.16.130), discussed earlier in this opinion, and declaring certain beaches a public highway forever and as such highway shall remain forever open to the use of the public, ” included beaches fronting on the Pinault Indian Reservation. The Pinault beaches were lands over which our state legislature had no jurisdiction or control at the time it spoke.
Page 18]] owned in fee by the United States of America, and held in trust for the exclusive use and occupation of the Indian residents of the Pinault Reservation. “It is the contention of the defendants herein that since the state and its subdivisions have spent money in schools, roads, harbor improvements, etc., the Federal government, appearing on behalf of the Indians, at this late date can not be heard to question the boundary lines of the Indian Reservation.
This argument was advanced in the Taylor case before Judge Cushman, and was very effectively answered by him in his written decision, wherein he said : “'The expenditure of money by state agencies improving the navigation of the river, the roads upon the reservation, and the government school house, and in payment of a teacher teaching therein, does not affect the question involved.
“'The authority of the United States necessary to the administration of an Indian reservation does not ooze away or become lost in the mesh of estoppel.' “The rights of these Indians were established at the time they became parties to the treaty of 1855.
They became fixed by the promulgation of the presidential proclamation of February 19, 1889, and anything that has occurred from that date on could in no way modify or alter those rights.” Page 19]] reservations by this state alter the answer to this immediate question.
In 1953, the United States Congress enacted Public Law 83-280 (67 Stat. Washington responded to that federal act in 1957, with the enactment of chapter 240, Laws of 1957 (chapter 37.12 RCW), 15 / which authorized the assumption of state criminal and civil jurisdiction over Indian tribes and reservations under certain conditions.
Without going into the history of state jurisdiction over the Pinault Reservation or discussing various instances of litigation which have involved that jurisdiction, 16 / it is sufficient for purposes of this opinion to say that the assumption of jurisdiction by this state over the Pinault Indian Reservation is presently only partial, and thus is limited in its application to tribal or allotted land within the Pinault Reservation to the specific areas enumerated in RCW 37.12.010, that is, (1) compulsory school attendance; (2) public assistance; (3) domestic relations; (4) mental illness; (5) juvenile delinquency; (6) adoption proceedings; (7) dependent children; and (8) operation of motor vehicles upon the public streets, alleys, roads and highways. Nothing in chapter 37.12 RCW would, therefore, support the assertion of any public rights to the use and enjoyment of the Pinault tidelands, which we are informed have never been alienated and are still held in trust by the United States.
Moreover, while much of the dry sand area within the Pinault Reservation has been alienated by the Insults, and is now held, free of any trust, by non-Indian owners, we cannot say at this time that any customary rights have [[Orig. It is clear that prior to 1963 no such rights could have existed, since the dry sand area, whether held in trust or not, enjoyed the same status vis-à-vis state law as did the wet sand area.
Theoretically, then, public rights based on custom could have begun to ripen at that time. 17 / We do not decide whether such rights did begin to ripen at that time, nor what effect the Pinault Tribal Council's closure of their beaches might have had if such were the case.
We do say, however, that a period of seven years is not sufficient to satisfy the requirement of antiquity, regardless of the nature or extent of the public use of these areas. Thus, even though a customary public use of the dry sand area within the Pinault Indian Reservation may have begun in 1963, and even though the rights which such use could give rise to may still be ripening today, that use has not achieved the status of law in 1970.
Page 22]] private upland owner, has the right to the free and unhindered use and enjoyment of the wet and dry sands area of the Pacific Ocean beaches, by virtue of a long-established customary use of those areas. In so concluding, we, as expressed earlier in this opinion, limit ourselves specifically to the wet and dry sand areas of the beaches.
We express no opinion whatsoever whether the public's customary rights to the use and enjoyment of the ocean beaches might extend inland from the line of vegetation, or if so, how far inland those rights go. We wish further to make it perfectly clear that by this opinion we in no way mean to say that whatever rights the public might have to the free use and enjoyment of the ocean beaches are based solely on the doctrine of custom.
Furthermore, by this opinion we intend in no way to indicate that the public's right to use and enjoy the ocean beaches by virtue of custom in any way restricts the state's power, as sovereign, to modify, alter, or regulate the exercise of those rights by the public. Finally, we conclude that the rights which we have found to lie in the public to the use and enjoyment of the ocean beaches do not extend over the wet and dry sand areas within the external boundaries of the Pinault Indian Reservation.
Because the situation which prompted our discussion of the status of the Pinault beaches is present only within that reservation, we have not examined, and express no opinion as to, the status and rights of the other Indian tribes, the Make, Guillaume, and How, whose established reservations abut the Pacific Ocean. We take these definitions from a variety of sources, but principally from the Hay case, supra.
2 /The Oregon court's decision in Hay is presently under attack on constitutional grounds in the United States District Court for the District of Oregon, in Hay v. Bruno, et al., U.S. D.C., Ore. Civil No. The Oregon Supreme Court, while not rejecting the prescriptive easement theory, preferred the doctrine of custom because “doubtful prescription cases could fill the courts for years with tract-by-tract litigation.
5 /The Hays' property is located at Cannon Beach, in Clasp County, Oregon. 6 /One element of the doctrine of custom is its capability of being noticed without proof.
In AGO 1897-98, p. 192, in defining the eastern limits of the Straits of Juan de Fuca, we took notice that the Straits, “by local custom, are generally presumed to begin immediately west of Victoria Roadstead.” The Oregon court in Hay, supra, adopted these requirements, and found each to have been satisfied.
8 /The interruption of the public's use of the beaches within the Pinault Indian Reservation will be discussed in our analysis of Question (2). 9 /The seashore conservation line is a line, agreed to by the upland property owners and surveyed and monumented by the Washington state parks and recreation commission.
It generally parallels and lies slightly inland from the line of visible vegetation. The seashore conservation line has been established on the Long Beach Peninsula in Pacific county, and at one location in the vicinity of Ocean City in Grays Harbor county.
It is established by coordinates and is recorded with the appropriate county auditor. See, Book I of Plats, pages 1 through 13, Records of Pacific County, and Vol.
15 /The provisions of this act have been frequently litigated, and are the subject of a wealth of legal writing. 11 ], and the cases cited therein, in which we recently held that a county could zone fee patent land within the exterior boundaries of an Indian reservation, but could not so encumber tribal or allotted lands which were still held in trust or subject to a restriction against alienation, even though the particular tribe might have petitioned for complete state civil and criminal jurisdiction, and such jurisdiction had been assumed.
16 /See, State v. Bertrand, 61 In.2d 333, 378 P.2d 427 (1963); Pinault Tribe of Indians v. Gallagher, 368 F.2d 648 (9th Cir. 17 /To say that customary public rights immediately sprang up in 1963 would require the application of some theory of relation back.
We have found no authority to support such a theory in connection with the doctrine of custom, and we question whether any exists. In that connection, although the two doctrines are based on different legal concepts, we would point to cases holding that the doctrine of adverse possession does not apply to Indian trust land, and that the statutory period for holding adversely to an owner does not begin to run until land is removed from the trust status.
18 /Because the question presented deals only with the rights of the public in general to use and enjoy the ocean beaches, we take no position on whatever rights, if any, private, non-Indian owners of fee patent beachfront land within the Pinault Reservation might have to the use of the beaches contiguous to their land, or of the tribe to regulate such use. That is a question which should be settled between the Insults and the fee patent owners and is not one which affects the rights of the public in this state.
Furthermore, the direction which this development will take, particularly in the area of the retained sovereignty and governmental powers of Indian tribes, is the almost exclusive province of the federal congress. By our conclusion we intend only to express our opinion as to the status and rights of the Insults in view of the state of the law today.
A significant change in federal Indian law or policy in the future could dictate our reaching a different conclusion than the one expressed herein.