Bulletin: OR000010

Dear Associates:

The Oregon Supreme Court has ruled that a freshwater pool formed at the coast where a basalt dam prevented two freshwater streams from discharging directly into the ocean was not part of the ocean and that the general public has no right of access or use to the dry sand beach around that pool. McDonald v. Halvorson, 308 Or. 340, 780 P.2d 714 (1989).

This decision reversed a 1988 opinion by the court of appeals. The court of appeals had concluded that the public had a right to use the dry sand beach for recreational use by virtue of the ancient common-law doctrine of "custom". The court of appeals relied on State ex. rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969).

In Hay the Oregon Supreme Court decided that the public was entitled to make recreational use of the "dry-sand" area of Oregon' beaches between the mean high tide and the upland permanent vegetation line.

In this case, the court qualifies Hay to beach areas that are adjacent to the ocean. Hay does not apply to this beach because of its unique location.