NAC Action Alert
NEW YORK: Fire Island National Seashore
April 12, 2013

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                     NATURIST ACTION COMMITTEE
                           ACTION ALERT
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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: April 12, 2013
SUBJECT: Fire Island National Seashore / Lighthouse Beach
TO: All naturists and other interested parties

Attention naturists:

This is an Action Alert from the Naturist Action Committee (NAC). NAC is asking you to take specific action to oppose the recent 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.

WHAT IS NAC DOING?
Immediately after the Fire Island nudity ban was issued, NAC retained legal counsel in Washington, DC. With a staff that’s intimately familiar with environmental issues and Department of Interior policy matters, NAC’s professional counsel is just one facet of  NAC’s overall response to this critical situation. 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?
NAC is asking you to take the following specific action immediately:

Contact the Superintendent of Fire Island National Seashore. Letters and e-mails will work better than phone calls for this purpose.

WRITE TO THE SEASHORE SUPERINTENDENT
Mr. Chris Soller, Superintendent, Fire Island Nat’l Seashore
120 Laurel Street
Patchogue, NY 11772
(631) 687-4750
Chris_Soller@nps.gov

COPY THESE PARK SERVICE OFFICIALS
Mr. Jonathan B. Jarvis, Director, National Park Service
National Park Service
1849 C Street NW
Washington, DC 20240
(202) 208-3818
Jon_Jarvis@nps.gov

Mr. Dennis Reidenbach, Regional Director, Northeast Region
National Park Service
U.S. Custom House
200 Chestnut Street, Fifth Floor
Philadelphia, PA 19106
(215) 597-7013
Dennis_Reidenbach@nps.gov

COPY THESE US SENATORS
The Honorable Kirsten E. Gillibrand
478 Russell Senate Office Building
Washington, DC 20510
(202) 224-4451
Contact by web form:
www.gillibrand.senate.gov/contact/

The Honorable Charles E. Schumer
322 Hart Senate Office Building
Washington, DC 20510
(202) 224-6542
Contact by web form:
www.schumer.senate.gov/Contact/contact_chuck.cfm

COPY THIS MEMBER OF US CONGRESS
The Honorable Timothy Bishop
31 Oak Street, Suite 20
Patchogue, New York 11772
Phone: (631) 289-6500
Cong. Bishop limits his e-mail exchanges to residents of his district.
Contact by web form:
https://timbishop.house.gov/email-me/

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:

    
www.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 Advisory, the complete text of the Koschmann letter, and detailed at http://naturistaction.org/FIIS 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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TEXT REVISED APRIL 14, 2013. Corrects spelling of the name of Senator Kirsten Gillibrand.

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Entire contents © 2013 Naturist Action Committee, Inc.
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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.

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.