NAC Update
NEW YORK: Fire Island National Seashore
June 12, 2013

RESOURCES

PREVIOUS NAC COMMUNIQUÉS ON THIS TOPIC

LAW AND POLICY

NATIONAL PARK SERVICE

PUBLIC OPINION

NAMING CONVENTIONS
Although some people informally abbreviate the Fire Island NPS unit as "FINS," Park Service officials use an internal abbreviation convention that refers to it as "FIIS." In the same way, Cape Cod National Seashore is CACO and Canaveral National Seashore is CANA. Yellowstone National Park (YELL) and Yosemite National Park (YOSE) are among a handful of exceptions.

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                     NATURIST ACTION COMMITTEE
                             UPDATE
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http://www.naturistaction.org
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Copyright 2013 by the Naturist Action Committee, which is responsible for its content. Permission is granted for the posting, forwarding or redistribution of this message, provided that it is reproduced in its entirety and without alteration.

DATE: June 12, 2013
SUBJECT: Fire Island National Seashore / Lighthouse Beach
TO: All naturists and other interested parties

Attention naturists:

This is an Update from the Naturist Action Committee (NAC). This Update follows the NAC Advisory of February 10, 2013 and the NAC Action Alert of April 12, 2013. In the NAC Action Alert, you were asked to take specific action. This Update includes summaries and details of recent developments. Through this Update, NAC is also asking you to take further specific action to oppose the abrupt and unjustified "change of policy" with regard to the long tradition of clothing-optional use at Fire Island National Seashore, a unit of the National Park Service (NPS) located in New York.

BRIEF DISCUSSION
In February, FIIS Chief Ranger Lena Koschmann distributed a "to whom it may concern" letter, declaring that nudity would no longer be allowed on the property the National Park Service manages on behalf of the public. The area affected by the sudden decree includes the popular and traditional clothing-optional portions of Lighthouse Beach. Although the decree carefully avoided using the word "EMERGENCY," it bypassed all the standard requirements that apply to ALL large and controversial NPS policy changes - except in cases of emergency.

FIIS management has posted and distributed flyers that say: “Clothing-Optional Use of Lighthouse Beach No Longer Permitted. Please wear attire that would be appropriate at New York state park beaches.”

Under orders from their superiors, front line rangers at Fire Island National Seashore have been enforcing the nudity ban, but the enforcement has not been uniform throughout the various areas of Fire Island National Seashore.

Although there ARE other locations on Fire Island of which we must remain aware as part of an overall resolution, this NAC Update focuses on Lighthouse Beach, which is important for its long-standing tradition of clothing-optional use.

WHAT IS NAC DOING?
Immediately after the Fire Island nudity ban was issued, NAC retained legal counsel in Washington, DC.

NAC has communicated its enormous concerns to Park Service officials,

NAC has pointed out specific errors of fact and process, and NAC has identified appropriate alternatives to the flawed termination of clothing-optional recreation.

The Naturist Action Committee continues working closely on this matter with local naturists and naturist groups.

WHAT IS NAC ASKING YOU TO DO?
We’re in PHASE 2 of this effort. NAC is asking you to take the following specific action immediately:

  1) SHOW UP. CONTINUE OCCUPYING LIGHTHOUSE BEACH
If we stay home or go elsewhere, we’ve lost. Nature abhors a vacuum, and if we’re not there, someone else will be. Forcing our removal from the beach is exactly what the Seashore management wants.

  2) WHAT TO WEAR
NAC will not / cannot dictate what you must wear - or not wear. NAC recommends you chose the minimal coverage that satisfies New York State law. The French have called it “le minimum.” You may call it a thong, a G-string, a pouch, or Butt Floss.

Women do not have to wear tops. Remember that while New York Statute 245.01 (Exposure of a Person) attempts to prohibit the public exposure of female breasts, New York case law (People v. Santorelli - Court of Appeals of New York - 1992) modifies the statutory law to allow the noncommercial exposure of female breasts.

  3) WHERE TO GO AT LIGHTHOUSE BEACH
Some of the traditional areas at Lighthouse Beach have been placed off limits. The Park Service rationale for this is thin and largely unsupported. We will continue challenging that.

At the site, let’s keep the issue simple. Do not enter areas that have been marked as “CLOSED.” Doing so allows other laws to be applied, it confuses matters and risks a loss of focus.

Remember that with the edict that abrogated the tradition of clothing-optional use in designated areas, the exclusion zone in front of the lighthouse has disappeared, too. GO THERE, wearing your best G-string.

At this time, NAC is not recommending other places on Fire Island.

  4) GO TO THE RESTROOMS
Seashore management has never been big on supplying Port-o-pots anywhere near the clothing-optional users on Lighthouse Beach. Yet Superintendent Soller seems perturbed that anyone might “go” in the ocean.

Use the restrooms at the Lighthouse. Wearing “le minimum,” of course. If you are New York legal, resist the urge to cover up as you approach the lighthouse.

  5) CONTINUE BEING GOOD STEWARDS OF THE RESOURCE
Pack out your trash - and other people’s trash - just as you have always done. Now, more than ever, we need to be seen as responsible stewards of the Seashore environment.

  6) UNDERSTAND THAT WE’RE ALL UNDER SCRUTINY
... and not just for nudity. There’s never a good time for citations and arrests for illicit behavior on OUR BEACH. This would a particularly BAD time for it. It’s no longer enough to control your own behavior. Tell your friends and others on the beach.

  7) INTERFACING WITH PARK SERVICE PERSONNEL
Be polite. There is no point in being otherwise, even though you may find the whole thing to be heavy-handed and arbitrary.

  8) BE CAREFUL WHEN YOU’RE ASKED FOR MEDIA INTERVIEW
Those can be tricky. There is no manual for handling this specific situation, but you should be aware that “anything you say can and will be used against ALL OF US.” If you have questions, contact NAC.

  9) CONTINUE WRITING TO NPS PERSONNEL AND THE LOCAL CONGRESSIONAL DELEGATION
The list was given in NAC’s Action Alert of April 12, which you can find online at
www.naturistaction.org/fiis2. If you haven’t written, DO IT NOW. If you have already written, then NAC thanks you. Now write AGAIN. Seriously. Send your newer thoughts, or if you can’t improve on what you’ve written before - send it again.

Many of the letters you’ve written have been very good. Some have been spectacular. Regardless, the point of writing is NOT to compete for a Pulitzer Prize in literature. The point is to let your concerns be known!

Expect a standard and impersonal form response from Superintendent Soller and no response at all from some of the others on the list. It’s still important that you write!

  10) HELP NAC IDENTIFY OTHER STAKEHOLDERS THAT MAY BE AFFECTED
In PHASE 2, we’re reaching out. We know the effect on naturists of the sudden change in policy. Please help NAC identify others who are affected.
  Businesses: restaurants, fuel stations, lodging
  Government: State of New York is losing parking revenue
  Individuals: young, old.

  11) NOW IN PHASE 2, WE’RE EXPANDING THE CAMPAIGN
NAC is asking you to contact an expanded list of federal lawmakers. These are the U.S. Senators and Congresspersons on the committees that have have oversight responsibility for the National Park Service.

Contacting them may not be easy. Unfortunately, many U.S. lawmakers are now refusing to accept correspondence from those who live outside their districts. That, even though they have accepted positions of leadership that affect all Americans. NAC recommends contacting the committees on which they serve and asking the commitee staff that: 1) each member be given a copy of your message, and 2) your message be made a copy of the committee’s permanent record.

U.S. SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES
Subcommittee on National Parks
  304 Dirksen Senate Building
  Washington, DC 20510
  Phone: (202) 224-4971  Fax: (202) 228-0539
  No apparent web-based ‘email’ contact exists for the committee. NAC suggests sending a fax.

U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON NATURAL RESOURCES
Subcommittee on Public Lands and Environmental Regulation
   1017 Longworth House Office Building
  Washington, DC 20515
  Phone: 202-226-7736    Fax: 202-226-2301
  Web-based ‘email’ contact:
 
https://naturalresources.house.gov/contact/

WHAT SHOULD YOU SAY?
In its declaration, FIIS management listed five justifications for terminating the long-standing tradition of clothing-optional use at Fire Island National Seashore. NAC has carefully researched each of those and has refuted each. You can find detailed writing points in the ALERTS section of the NAC web site. Use the shortcut that will take you straight to the page:

    
http://naturistaction.org/fiis

Here are some simple points you may wish to make:
  1. No emergency exists. Yet FIIS officials have acted as if there’s an "emergency" that allows them to bypass standard rules with respect to clothing-optional use. Clearly, addressing clothing-optional use as if it were an emergency in early February in New York is a ruse to avoid the requirements of the Administrative Procedures Act. NPS and FIIS must meet the requirements of APA.

  2. Clothing-optional use is NOT inconsistent with FIIS purposes and values. For years and years, NPS Management Policies have historically allowed clothing-optional activity at Fire Island National Seashore. As recently as 2010, naturists participated in a revision of the General Management Plan for FIIS. Public comments included in the current GMP reflect significant public support for clothing-optional recreation.

  3. Sudden prohibition of one form of recreation is not a proper solution to alleged "overcrowding." Where is the proof of overcrowding? NPS has offered none. If overcrowding exists, what else has been tried? Why avoid standard procedures to focus on the elimination of a single form of recreation.

  4. If habitats for new species have been created, what are they? And why are those new habitats important only in the areas that are traditionally clothing-optional? Dunes are being rebuilt elsewhere. What is the ecological justification for the selective removal of one class of park visitors, based on the clothing they may choose not to wear?

  5. Crime. Once again NPS has chosen to make a decision that’s completely unencumbered by facts. What are the numbers? Seashore management personnel have suggested that there may have been incidents, BUT THE PLURAL OF ANECDOTE IS NOT DATA!

  6. The American public supports designated areas for clothing-optional recreation. A public opinion survey commissioned in 2006 by the nonprofit Naturist Education Foundation and conducted by the prestigious Roper polling organization indicated that SEVENTY-FOUR PERCENT of Americans believe that "people who enjoy nude sunbathing should be able to do so without interference from local officials as long as they do so at a beach that is accepted for that purpose."

PLEASE COPY NAC ON YOUR CORRESPONDENCE
You can help the effort by letting NAC know what you’ve said. Please send copies of your correspondence to NAC. E-mail works best.

    
fiiscomments@naturistaction.org

ADDITIONAL INFORMATION
You can find additional information, including this NAC Update, the complete text of the Koschmann letter, and detailed at http://naturistaction.org/fiis2 or by visiting the NAC web site www.naturistaction.org and clicking on ALERTS.

PLEASE HELP NAC CONTINUE HELPING NATURISTS!
The Naturist Action Committee is a nonprofit volunteer adjunct to The Naturist Society, a membership organization. NAC is committed to vigorous activism on behalf of the responsible clothing-optional use of public lands. NAC has no membership roster and receives no dues money. NAC relies entirely on the voluntary financial support of concerned naturists like YOU.

The essential response to the frightening threat at Lighthouse Beach has already become expensive. Won't you please send a generous donation to NAC?

   NAC
   PO Box 132
   Oshkosh, WI 54903

Or call toll free (800) 886-7230 (8AM-4PM, Central Time, weekdays) to donate by phone using your MasterCard, Visa or Discover Card. Or use your credit card to make a convenient online donation:

   www.naturistaction.org/donate/

Thank you for choosing once again to make a difference.

Naturally,
Bob Morton
Executive Director
Naturist Action Committee

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Naturist Action Committee (NAC) - PO Box 132, Oshkosh, WI 54903
Executive Dir. Bob Morton       -
execdir@naturistaction.org
Board Member Dick Springer      -
dandespringer@gmail.com
Online Rep. Dennis Kirkpatrick  -
naturist@sunclad.com
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ADDITIONAL CONTACTS
NAC NOTE: many of these federal lawmakers filter out correspondence from those not in their respective districts.
SENATE Subcommittee on National Parks
Democratic Subcommittee Members
   Senator Mark Udall (Chairman)
   Senator Mary L. Landrieu (D, LA)
   Senator Bernard Sanders (I) (D, VT)
   Senator Debbie Stabenow (D, MI)
   Senator Christopher A. Coons (D, DE)
   Senator Brian Schatz (D, HI)
   Senator Martin Heinrich (D, NM)
Republican Subcommittee Members
   Senator Rob Portman (R, OH)
   Senator John Barrasso (R, WY)
   Senator Mike Lee (R, UT)
   Senator Lamar Alexander (R, TN)
   Senator John Hoeven (R, ND)
Ex Officio Subcommittee Members
   Senator Ron Wyden (D, OR)
   Senator Lisa Murkowski (R, AK)

HOUSE Subcommittee on Public Lands and Environmental Regulation
Republican Subcommittee Members
   Rep. Rob Bishop, Chairman, (R-UT)
   Rep. Don Young (R-AK)
   Rep. Louie Gohmert (R-TX)
   Rep. Doug Lamborn (R-CO)
   Rep. Paul Broun (R-GA)
   Rep. Tom McClintock (R-CA)
   Rep. Cynthia Lummis (R-WY)
   Rep. Scott Tipton (R-CO)
   Rep. Raúl Labrador (R-ID)
   Rep. Mark Amodei (R-NV)
   Rep. Chris Stewart (R-UT)
   Rep. Steve Daines (R-MT)
   Rep. Kevin Cramer (R-ND)
   Rep. Doug LaMalfa (R-CA)
   Rep. Doc Hastings (R-WA) Ex-officio
Democratic Subcommittee Members
   Rep. Raúl M. Grijalva, Ranking Member (D-AZ)
   Rep. Peter DeFazio (D-OR)
   Rep. Niki Tsongas (D-MA)
   Rep. Rush Holt (D-NJ)
   Rep. Madeleine Z. Bordallo (D-Guam)
   Rep. Gregorio Sablan (D-N. Mariana Islands)
   Rep. Pedro Pierluisi (D-Puerto Rico)
   Rep. Colleen Hanabusa (D-HI)
   Rep. Steven Horsford (D-NV)
   Rep. Carol Shea Porter (D-NH)
   Rep. Joe Garcia (D-FL)
   Rep. Matthew Cartwright (D-PA)
   Rep. Edward J. Markey (D-MA) Ex-officio

ADMIN. PROCEDURES ACT
The Administrative Procedure Act ("APA") provides that agencies promulgate their rules after at least 30 days’ notice to the public and opportunity to comment by the public. See 5 U.S.C. § 553(d). NPS regulations specifically provide that closures and public use limits are regulations subject to the APA’s rulemaking requirements, including public notice and opportunity for comment. See 36 C.F.R. § 1.5(a). An exception to the APA’s notice and comment requirements may apply where a closure needs to take effect immediately due to emergency. See 5 U.S.C. § 553(d)(3); 36 C.F.R. § 1.5(b).

DETAILED WRITING POINTS

   1.
  The first rationale for this “emergency” rule – that clothing-optional recreation is barred by New York law – is entirely inconsistent with the long history of clothing-optional recreation at Fire Island.  New York for many years has exercised its discretion not to prosecute nude sunbathers at the subject areas on Fire Island, and for many years the Park Service has exercised the same tolerant enforcement choice.  There is no basis for this abrupt change in position, and certainly no “emergency” justification.

   2.   Second, the emergency rule claims that clothing-optional sunbathing is incompatible with the Seashore’s “purposes and values.” This is a drastic change from 30 years of policy and practice during which this activity was not determined to be incompatible with Seashore purposes and values. The law is clear that changes in longtime agency policy and practice that impact people’s activities and conduct are subject to notice and comment requirements of the Administrative Procedures Act. See Paralyzed Veterans of America v. D.C. Arena, 117 F.3d 579 (D.C. Cir. 1997), cert. denied, 523 U.S. 1003 (1998); Alaska Prof. Hunters Ass’n. v. Fed. Aviation Admin., 177 F3.d 1030 (D.C. Cir. 1999). Beyond applicable federal case law, NPS has presented no rational explanation of this fundamental reinterpretation of Seashore policy and practices.  We note that the Fire Island Seashore statute is unchanged and NPS Management Policies, including the 1988, 2001, and 2006 versions, were deemed to allow clothing optional activity at Fire Island. 

   3.   Third, the Park Service claims that the clothing-optional nature of some of the beaches must be revised because it is causing issues with “dense visitation” (i.e., overcrowding) – presumably because too many people are visiting these areas to engage in clothing-optional recreation – causing increased crime and overflow of trash and sanitation facilities. Again, visitation in the middle of winter cannot possibly justify the promulgation of this closure as an emergency rule, and, therefore, it should be done through the normal rulemaking process. Furthermore, the Park Service’s overcrowding claims does not hold up to scrutiny.  The Park Service’s solution to this problem – banning all nudity – is poorly-tailored.  The Park Service has presented no evidence of overcrowding, and NAC anecdotally reports that the crowds at Fire Island are not a problem.  But if “dense visitation” is a genuine issue, a flat ban on a long established visitor activity is a draconian action.  There are likely other effective, better tailored solutions that should be evaluated before a flat prohibition is imposed. And given the lack of any legitimate “emergency” to address overcrowding in the middle of winter, the usual rulemaking procedures should apply.

   4.   Fourth, the NPS alleges that habitat changes caused by Hurricane Sandy have created new habitat for sensitive species.  Again no details are provided nor has the alleged sensitive species been identified. Nor has NPS indicated why an emergency rule is needed in the middle of winter when clothing-optional beachgoers will not be using the “sensitive habitat” for many months.  Moreover, there is no indication that more narrowly tailored alternatives have been explored including placing barriers and/or signs around specific areas of sensitive habitat, and/or imposing fines on those violating the warnings, nude or clothed. These are exactly the types of issues that notice and comment is designed to flesh out.

   5.   Fifth, the Park Service alleges that the emergency ban on clothing-optional recreation is needed to mitigate particularly high crime levels in clothing-optional areas. Again no facts are provided to support this claim, or why an emergency rule is needed in early February to ban summertime nude sunbathing. Obviously, if the “crime” is the act of public nudity itself, the reasoning is circular and flawed. There is also no evidence that clothing optional recreationists are criminally inclined or commit more crimes than other beach visitors.  If other criminal conduct is in fact occurring, other enforcement or prevention options are available short of barring one class of beach visitors.