Although much has been written about Oregon's unique legacy of public privilege to use private beaches, scholarship has tended to focus on articulation as well as spirited critique of the custom doctrine. More recently, commentators have addressed the question of whether the public's beach rights can withstand scrutiny under the constitutional takings doctrine. In contrast, this article assumes that the custom doctrine is sufficiently embedded in Oregon's history and case law as precedent to withstand reconsideration of the doctrine and to constitute a background principle of state law for purposes of the takings doctrine. With these assumptions, the article examines the largely ignored relationship between the rights of the public, as the holder of a recreational easement established by custom, and the often-competing rights and interests of the dry sand owner.
Steven W. Bender,
Castles in the Sand: Balancing Public Custom and Private Ownership Interests on Oregon’s Beaches, 77 OR. L. REV. 913