Paradise Lost? FINS Rangers Update Position on Nudity on the Beach

I want to share an exchange of emails that I had recently with the Fire Island National Seashore (FINS) Rangers, including Acting Chief Ranger R(onald) Duane Michael and FINS Superintendent K. Christopher Soller, concerning the beach in front of the Meat Rack or woods, also known as the Carrington Tract, between Cherry Grove and Fire Island Pines.
On September 7, I wrote, re an apparent nude sunbathing policy change:

Dear Duane et al.,
I've been hearing reports that nude sunbathing will now be prohibited on the beach in front of the Carrington Tract. If there is a press release concerning this policy change, I, as a member of the working press, would like a copy sent to me.
Sincerely,
Bruce-Michael Gelbert
Editor, Fire Island Q News.com
Columnist, Fire Island Tide

I got no response, so on September 17, I wrote:

Dear Duane et al.,
I've yet to receive an answer from you to my email of September 7. I was on the beach between the Grove and the Pines today, observing two of your rangers—Luke DiDomenici & Claire Furmanski, I believe—harangue two men, presumably for 'lewd conduct,' for about an hour, but say nothing to the people that were sunbathing or swimming nude. Is there a policy change concerning nude sunbathing there or isn't there and, if there is, where is it written down?
Sincerely,
Bruce-Michael Gelbert
Editor, Fire Island Q News.com
Columnist, Fire Island Tide

On September 22, I received this response from Duane Michael:

Bruce,
I have been out of the office for the past week and a half. I am just catching up on my e-mail. The regulations pertaining to public nudity have not changed. We are still enforcing the State of NY Public Nudity Statute under the Assimilative Crimes Act. We have updated our fact sheet and the Q&A sheet to reflect the park's current operational status in regards to public nudity (post focused enforcement at lighthouse beach and wilderness visitor center). These documents should be loaded onto the parks webpage this week. I still have to set them up in PDF and send them to our media manager. I will let you know when they post.
Thanks,
R. Duane Michael
Acting Chief Ranger
Fire Island National Seashore
ronald_michael@nps.gov
(631)687-4757-Office
(803)210-9547–Cell

On September 25,I received a further email from Duane Michael:

Bruce,
The park website has been updated. The Public Nudity Talking Points have been added. You will be able to find this document on the Laws & Policies page under: "National Park Rangers at Fire Island National Seashore also enforce New York State fishing, hunting and motor vehicle laws, as well as other applicable state laws."
Thanks.

Here are some of the pertinent parts of the document that Duane refers to, which is found at http://www.nps.gov/fiis/parkmgmt/upload/Talking-Points-Nudity-Enforcement-2014.pdf--all charged terms, such as “crimes,” “criminal activity,” and “violations,” “lewd and lascivious behavior,” “disorderly conduct,” “values,” and “exhibitionism,” in this mind-boggling, literally forbidding document have been left intact:

Fire Island National Seashore Talking Points

Background

Over the course of many years clothing optional recreation became recognized as an accepted public use at Fire Island National Seashore (the Seashore). As the popularity of clothing optional recreation grew, conflicts developed between this user group and other park visitors. In an effort to mitigate these conflicts, the Seashore posted signs to advise visitors of those areas popular for clothing optional recreation. Visitation numbers in these areas continued to increase and additional issues developed relating to visitor safety, visitor use impacts, and the sustainability of the natural resources. Over time, the Seashore observed a significant increase in lewd and lascivious behavior as well as other criminal activities in these areas popular for clothing optional recreation.

Enforcement Plan

Because of these issues, on February 4, 2013, the Seashore started enforcing the State of New York public nudity laws under the Federal Assimilative Crimes Act. The Seashore established a progressive law enforcement approach to enforcing public nudity within the park. The initial phase of this enforcement effort concentrated on public education and a focused law enforcement effort in those areas w[h]ere clothing optional recreation or public nudity presented the highest level of user conflicts.
These sites included:
* Lighthouse Beach
* Sailors Haven
* Barrett Beach
* Watch Hill
* The Wilderness Visitor Center to Old Inlet
Since the public nudity enforcement effort began, there has been a decrease in issues related to user conflict, visitor safety, visitor use impacts and criminal activity at popular clothing optional recreation areas. Lighthouse Beach and the area west of the Wilderness Visitor Center are not managed using normal law enforcement operations.
The Seashore has transitioned to park-wide enforcement that manages the impact of public nudity based on the mission of the National Park service and the mission of Fire Island National Seashore. Public nudity statutes will be enforced throughout the Seashore based on the totality of the circumstances surrounding each infraction …

Considerations
1. Public nudity is illegal within the State of New York. Public nudity has been prohibited in the State of New York since 1984. NPS policies encourage consistent enforcement of state laws on federal lands, and discourage the designation of clothing optional areas.
NPS Director Special Directive 91-3: Information on Public Nudity (1991)
Because of the potential for such use conflicting with the enjoyment of visitors participating in other recreational uses, the NPS will neither encourage persons to engage in such activities, nor will we designate areas for the use of individuals or groups wishing to engage in public recreation activities in the nude.
There is no federal regulation prohibiting nudity that applies to all units of the NPS …
When unacceptable visitor conflicts occur as a result of public nudity, a resolution of the situation should be attempted informally, if appropriate, with the persons who are the subject of the complaint. If informal attempts fail to resolve the conflict and enforcement action becomes necessary, the option may exist of either applying NPS regulations addressing disorderly conduct (26CRF 2.34), park specific regulations, or State or local laws that specifically prohibit public nudity. The latter method has the advantage of providing consistency in enforcement in both Federal lands and the adjacent areas …
2. Public nudity adversely impacts the visitor experience and National Park Service values. Public nudity at the Seashore has led to many user conflicts over the years. Public nudity has generated complaints from park visitors as well as the residents and families of the local communities located within the boundary of the Seashore. National Parks are public lands that Congress has set aside for the enjoyment, education and inspiration of this and future generations. The National Park Service goes to great lengths to attract people of all ages and walks of life to “Experience Your America.” The Seashore, like all other NPS sites, provides educational programs and opportunities for school children of all ages. The Seashore encourages parents and young children to explore and learn about the park through programs such as the Junior Ranger Program. These educational programs take place at various locations within the park, which include developed areas and all natural and cultural landscapes. Public nudity is not compatible with these NPS and Seashore programs and initiatives …
4. Areas popular for clothing optional recreation, or public nudity, have been prone to incidents involving lewd and lascivious behavior as well as other criminal activities. Park history has shown that Seashore areas popular for clothing optional recreation, or public nudity, were prone to incidents involving lewd and lascivious behavior as well as other criminal activities. Although this illegal activity evolved over many years, the onset of the Internet and social media served as a huge catalyst. These methods of communication were often used to advertised [sic], organized [sic], or otherwise promulgate chance meetings or public gatherings involving illicit behavior. Park employees from all disciplines, as well as the general public, reported observing lewd and lascivious acts such as public sex, voyeurism and exhibitionism. Law Enforcement Rangers routinely responded to incidents of lewd and lascivious behavior that routinely included illegal acts such as disorderly conduct, soliciting, controlled substance violations, alcohol violations, etc.

Questions & Answers

Does the
National Park Service have a regulation that prohibits public nudity?
No, the National Park Service does not have a service-wide regulation expressly allowing or prohibiting public nudity. However, in 1991, the National Park Service went on record (NPS Director Special Directive 91-3) to provide direction on public nudity service-wide. In this directive, the NPS stated that public nudity would not be encouraged because of the potential for user conflicts. The document also stated that NPS would not designate clothing optional recreation areas. This document recommended using 36 CRF subsection 2.34 (Disorderly Conduct), park specific regulations, or State or local laws that specifically prohibit public nudity. Emphasis was put on the use of State or local laws that prohibit public nudity as a way of establishing consistency in enforcement on Federal lands and the adjacent areas. The State of New York has a statute prohibiting public nudity that has been codified since 1984. As recommended at the Federal level, Fire Island National Seashore has elected to use this State statute.
If the National Park Service has no service-wide regulations prohibiting public nudity, then how is the National Park Service enforcing state laws on federal lands?
The National Park Service has concurrent jurisdiction at Fire Island National Seashore and as such, the Seashore may adopt the State of New York statute that prohibits public nudity under the Federal Assimilative Crimes Act.
What is the Federal Assimilative Crime [sic] Act?
The Assimilative Crimes Act (ACA) is a Federal statute (18 U.S.C.A. subsection 13) which provides adoption by Congress of state criminal laws for areas of exclusive or concurrent federal jurisdiction if the crime is not punishable under federal law. In short, when a criminal offense has been committed on lands that have been reserved or acquired by the federal government, and the offense is not a federal offense, state law will apply to the offense under the Assimilative Crimes Act. When the federal government prosecutes the offense, it is not enforcing state law but is enforcing the federal law by incorporating by applying the state law to the offense. The statute uses local laws as gap-fillers for federal criminal law.
What is the State of New York Statute that prohibits public nudity?
New York Penal Code, Article 245 subsection 245.01, Exposure of a Person, states that a person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.
What is the penalty for being nude in public?
Depending on the totality of the circumstances, penalties may range from a warning to arrest with fines of up to $5,000 and imprisonment of up to six months. If a person were to receive a violation notice for being nude in public with no extenuating circumstances, the fine would be approximately $250.00 plus court assessment fees.
What is meant by the totality of the circumstances when it comes to enforcing public nudity?
In many instances, the enforcement of the law is not black and white. Because of this, officers are authorized to use discretion based on the totality of the circumstances surrounding an infraction. This discretion allows officers to handle violations at the most appropriate level. Agencies may limit the application of individual officer discretion based on enforcement plans or management initiatives. Totality of the circumstances, as this phrase applies to the enforcement of public nudity, means that an officer will consider all factors relevant to the violation. These factors include but are not limited to location, time of day, season, bystanders, nature of the contact, duration, previous contacts and associated violations. Once the officer has considered the totality of the circumstances, he or she will then use discretion to issue a verbal or written warning, a violation notice or to make an arrest.
Is there anywhere on Fire Island that it is legal for an individual to be nude in public?
No there is not. The National Park Service will enforce the statute on public nudity on all lands and waters that are within the legislative boundary of the Fire Island National Seashore and under the administrative control of the Seashore. Enforcement of the New York State statute prohibiting nudity on lands and waters within the boundary of the Seashore not under the administrative control of the National Park Service are enforced by state and government agencies. Individuals with questions pertaining to public nudity in the towns of Islip and Brookhaven or in the villages of Saltaire and Ocean Beach should contact those government entities directly.
Clothing optional recreation has been accepted on Fire Island for decades. Why the change?
There are four main reasons for the change in enforcement:
1. Public nudity is illegal within the State of New York and the National Park Service does not encourage public nudity or support it through the designation of clothing optional recreation areas.
2. Public nudity adversely impacts the visitor experience and National Park Service values.
3. Impacts from excessive and conflicting visitor use, such as that at Lighthouse Beach, created a public health and safety risk and negatively impact the sustainability of the natural resources.
4. Areas for clothing optional recreation, or public nudity, have been prone to incidents involving lewd and lascivious behavior as well as other criminal activity …
Does the New York Statute pertaining to public nudity prohibit women from being topless?
No, State of New York case law has established that women may be topless in public.
Does the case law pertaining to women being topless in public apply to Fire Island National Seashore as well?
Yes, the case law applies to the assimilation of the New York State statute pertaining to public nudity. This means that women may be topless at the Seashore and still be in compliance with the law …
On February 5, 2013, FINS’ then Chief Ranger Lena B. Koschmann, since relocated to Colorado, issued a letter announcing that FINS would begin enforcing New York State public nudity laws on Fire Island beaches. In response to this writer’s email, asking for further details, she wrote, on February 9:

Please know that this will not affect any community beaches (i.e. Cherry Grove), only federal beaches, and only those specified in the letter. This decision has already been finalized, and our change in policy made official. It is firmly rooted in the fact that public nudity is illegal in the State of New York, and given that we share jurisdiction with the state, has also been illegal on Fire Island since that state law was established … Public Nudity is illegal everywhere in the State of New York. That being said, as the letter states, we will be focusing our enforcement efforts only in the areas specified, and not on any community beaches. The Pines, the Grove, and other communities on Fire Island are responsible for managing use on their own beaches.

Lena did not address specific questions about the section of beach in front of the Carrington Tract until later in the year, when she sent this email to Cherry Grove Community Association President Diane Romano on May 29:

Rangers [including the] Deputy Chief Ranger, who oversees our enforcement operation … informed me that they were flagged down by a nude individual when driving past the Carrington Tract—he had questions about our policy change with regards to enforcing New York State nudity law. They had a brief and friendly contact, according to the two Rangers, in which the man asked whether it was ok to be nude on the beach at that location. The Rangers responded that, although New York State law does apply to the entire island, that the National Park Service is not proactively enforcing that law between Cherry Grove and the Pines, so he was "fine" there. There were no other contacts with anyone on this stretch of beach today.
The Rangers will continue to enforce all other applicable laws on federal lands, and will be monitoring the Carrington Tract and other areas that are outside our target enforcement areas for disorderly conduct and other illegal activity. While this federal tract is not a target of our enforcement of New York State Law, please understand that this law does apply to all public lands within the State of New York, and could be enforced at any time by other law enforcement agencies. That being said, I have no reason to believe at this time that any other agencies are planning to change their level of enforcement from years past.

Obviously, the legal status of our nude beaches is changing drastically from the one that Lena described last year. Let’s watch for further developments.