Historical Review of Cape Cod Anti-nudity Regulation

 

Ms. Maria Burks, Superintendent
Cape Cod National Seashore
99 Marconi Site Road
Wellfleet, MA 02667

RE: CCNS Draft General Management Plan

Dear Ms. Burks:

As you review public comments on the Draft General Management Plan (DGMP), I want to share with you a historical perspective on nude recreation at Cape Cod National Seashore. In this context, our history as a legitimate user group at the Cape Cod National Seashore and elsewhere in the National Park System offers a persuasive argument that CCNS would benefit in managing for nude recreation, rather than persisting in an ineffectual and costly ban on skinny-dipping and topfree sunbathing.

I propose in these comments that the Seashore:

  • amend the DGMP to eliminate all references to a continued ban on nudity, though I recognize that such an amendment does not legally eliminate the existing ban;
     
  • eliminate, or at a minimum clarify, the statement on page 136 of the DGMP: "Public nude sunbathing is prohibited by law at the seashore." It is correct that it is prohibited by NPS Special Regulation, but mere nudity is not prohibited under federal or Massachusetts state law, nor fully precluded by local ordinances;
     
  • relax for the time being law enforcement actions against Naturists and topfree sunbathers; and
     
  • work collaboratively with The Naturist Society, the Naturist Action Committee, the American Association for Nude Recreation and other organizations and user groups to test proven effective management techniques for nude recreation at one or more pilot areas within CCNS, including measures for cost containment and generation of new revenue.

Skinny-dipping and topfree sunbathing have occurred for many generations at a variety of traditional sites on the Cape -- areas now managed by the National Park Service. I was a summer resident and property owner at Truro in the late 1960s through the mid-1980s. These were years of transition in which a relatively new federal NPS management staff at the Seashore initially respected our Naturist traditions. As a consequence of change in the Seashore's management, the agency opted to ban nudity rather than manage for a traditional use.

From this experience at Cape Cod National Seashore evolved the founding of The Naturist Society under my leadership. TNS today represents 20,000 households -- families and individuals who are staunch supporters of the right to use appropriate public lands for clothing-optional activities. In pursuing the right to reasonable access to a share of public recreation resources, TNS members also recognize their own responsibility to minimize user conflicts, assure appropriate behavior and protect the environment.

History of Nude Recreation at CCNS

Attached is an article entitled "Truro's Property Owners Meet the Nudies" from the September 10, 1974, Boston Phoenix reporting with sufficient accuracy the growing controversy about skinny-dipping and topfree sunbathing in the decade following congressional designation of the Cape Cod National Seashore.

For well over a century preceding this federal designation, various journals and accounts reflect peaceful co-existence of nude bathers, including Henry David Thoreau, and other user groups at Cape Cod. This was initially true as well of Naturists and the new NPS managers who arrived following establishment of the National Seashore by the U.S. Congress in August 1961. The attached letter of September 10, 1973, from Superintendent Leslie P. Arnberger illustrates ongoing efforts by Free Beach advocates to work constructively with Park managers to resolve any problems, particularly those associated with potential resource damage. Unfortunately, this correspondence also reflects the agency's early unwillingness to fully acknowledge the tradition of skinny-dipping at Cape Cod and to therefore manage for this established use in a manner that protects resources and minimizes conflict with other users.

In late 1974 a change in NPS management occurred. With the appointment of Lawrence C. Hadley as CCNS superintendent, all pretense of agency objectivity and willingness to work toward solutions for Naturist use of remote or "screened" areas of the Seashore evaporated. It was only a matter of months following his arrival before Hadley announced his intention to ban nudity via a formal rule-making process.

A January 5, 1975, issue of the Cape Cod Times (enclosed) reported that the controversy among Truro residents was related to parking and beach access, not to nudity per se. Supt. Hadley's unwillingness to accommodate traditional clothing-optional use at a few beaches within the now-federal property was perceived (and realistically so!) as thrusting the access problem and associated costs upon the citizen taxpayers of Truro. The article notes that Truro Selectmen had already soundly defeated an anti-nudity ordinance in the previous year and, on a second occasion, removed the issue from the docket. Further, from other documents we know that the town was already effectively employing its own law enforcement capability in instances where nudists had been warned against inappropriate locations and/or behavior -- a recourse that The Naturist Society has advocated and supported in all public lands situations.

In that same week, another local article (enclosed; name of publication unknown) spelled out management options that continue to be current and appropriate in your consideration of the 1996 Draft General Management Plan. It was suggested by long time Truro resident Stephen Williams that a ban on nudity would prove to be virtually unenforceable, not to mention costly for patrol activities and legal defense. He recommended that the Truro community, working together with the National Park Service, had four basic options to evaluate:

  • "Collaborate with the Seashore's nude bathing ban and enforcement of it;
     
  • "Operate a nude bathing beach at Brush Hollow with minimal facilities, Seashore cooperation, and access from a parking area along Town-owned Collins Road;
     
  • "Urge the Seashore to relocate the nude beach at its established Head of the Meadow facility; or
     
  • "Do nothing at all, described by Williams as: 'Experience runs a dear school but a fool will learn in no other.'"

* [Today, of course, the Seashore has the new option of recovering full costs for facilities, maintenance, patrol and management overhead through a Recreation Fee Demonstration Project under the authority of Public Law 104-134.]

To all of this, Supt. Hadley said Williams' talk of enforcement problems was speculation, "and not all that speculation is beneficial."

Hadley also admitted the Seashore acted more swiftly to ban nudity due to lobbying pressure from the 200-member Truro Neighborhood Association (TNA). Detailed media reports of meetings occurring in this period indicate that a few voices within the TNA argued against nudity based on personal moral judgments, but the overwhelming anxieties expressed by others within TNA and the community were related to parking and other aspects of crowding -- problems for which they unwisely looked toward Park Service leadership to resolve. Ultimately, Hadley effectively accomplished for the few in the Truro Neighborhood Association what the town's own Selectmen were then unwilling to do -- a ban on nudity.

It was not difficult, however, in the summer of 1975 to rally substantial support for Mr. Williams' recommendations to the Seashore that they plan to manage for nude recreation. Supt. Hadley nonetheless ignored evidence submitted by Free Beach advocates demonstrating the willingness of local residents to work out an accommodation for nude recreation at appropriate locations within the CCNS property. Many residents of Cape communities (Wellfleet, Truro and Provincetown), as well as domestic and international visitors to the National Seashore, signed petitions supporting designation of clothing-optional recreational opportunities at CCNS -- 10,000 signatures in all were obtained in merely the two months prior to their submittal on October 7, 1976. These petitions are being submitted once again, because I believe they continue to accurately reflect the cultural and social traditions of an area now managed by federal agents of the people.

Supt. Hadley deflected social and cultural questions by pursuing the issue within the context of his responsibility to protect the Seashore's natural resources. He failed to make his case in his first attempt to justify a ban on nude bathing, according to a February 13, 1975 article in the Provincetown Advocate, "Nudity Rule Delayed" (attached): "The lawyers studying the language of the regulation have asked the Seashore to beef up the 45-page "environmental assessment" it prepared in support of the decision to seek the nudity ban, according to Seashore Superintendent Larry Hadley."

There is reason to believe that Supt. Hadley did more than merely "beef up" his environmental justification for the ban on nudity at CCNS. He had sought a written opinion shortly after his arrival at CCNS from University of Massachusetts-Amherst botanist Paul Godfrey that Seashore dune vegetation was threatened by alleged hordes of "gawkers" viewing nude bathers from atop the dunes.

Another resident of Wellfleet in the mid-1970s was coastal geographer Stephen Leatherman (Laboratory for Coastal Research, University of Maryland), known widely as "Mr. Beach", the nation's expert. Leatherman recounted for me two years ago his conversation with Godfrey at the time (memo attached): "Paul, how could you do that favor for Hadley?" Leatherman demanded of Godfrey. "That's introducing politics into science." Godfrey acknowledged this, according to Leatherman, stating: "Larry [Hadley] asked me to do it."

In point of fact - The Naturist Society has photographs from 1975 to prove the ruse represented by Godfrey's "findings" of dune damage. Far more dune-top damage was done by CCNS rangers who drove ORVs directly behind the crest of High Dune at Brush Hollow in order to check on nudist activities, than ever was done by the scattering of observers of the nude beach. Boston Herald reporter George Briggs went to some pains to actually count "15 to 20 fully clothed observers" of 1,200 nudists at Brush Hollow Beach on August 25, 1974 -- a number far short of Supt. Hadley's often-alleged "hordes".

Yet this twenty-year-old fib concocted by Hadley and Godfrey again finds its way into the DGMP, supported by additional faulty data that I will address in the course of my comments. Then, as now, the agency's own failure to manage for the needs of a traditional user group at Cape Cod resulted in unnecessary conflict and otherwise-controllable resource damage.

The proposed ban on nudity was ultimately published in the Federal Register on March 10, 1975 with a 30-day period allowed for public comment. The official "count" on comments reflecting support or opposition to the ban was a dead heat, which deterred Supt. Hadley not at all. Nor did criticism from U.S. Senator Edward Kennedy, U.S. Representative Gerry Studds and the American Civil Liberties Union faze the superintendent. Hadley told reporters at a pre-publication press conference March 7 that he expected the rule to take force a few days after April 8, with at most minor changes in wording -- suggesting, certainly, to those of us about to be categorized as potential federal felons that the call for public comment in the Federal Register was Hadley's most cursory nod to any requirements for administrative process.

In commenting on the proposed Special Regulation, the National Parks and Conservation Association put its finger on the agency's failings (see attached copy of comments dated March 18, 1975): "The key concept in your proposal is that nudity is 'objectionable to portions of the populace'. Thus, we are effectively dealing with a cultural, not environmental, problem, and the Park Service is attempting to enforce this bias through discriminatory regulations and arbitrary definitions...If the real problems at Cape Cod are related to parking, trespass and damage to dune ecology, the best solution clearly involves better enforcement of parking, trespass laws, and access patterns in a viable program to protect the resources of the seashore. The present approach only invites more bitterness, controversy and problems. If a rational solution is followed now, people will be encouraged to respect the Service more, and issues like public nudity will cease to require publication of notices in the Federal Register."

Comments directed to Supt. Hadley from Harold G. Wilm, formerly New York State Conservation Commissioner 1959-66, are still relevant to the decisions currently facing CCNS management (copy attached): "Provided, that the Seashore administration may establish and appropriately demarcate areas of the Seashore within the marked boundaries of which nudity is permitted, subject otherwise to any ordinances or regulations government public deportment and behavior...It is, I think, reasonable and enforceable and avoids the problems associated with your present proposal."

Hadley claimed "great urgency" in publication of the Final Special Regulation, causing it to appear in the Federal Register and become immediately effective in mid-April 1995.

The Boston Herald reported that Supt. Hadley committed $32,000 from his 1975 budget for 10 additional seasonal rangers, two oversand vehicles and communications equipment to scout remote ponds and beaches for nudists. The environmental damage likely to result from this investment in enforcement capacity was overlooked in the superintendent's supporting environmental assessment.

Hadley noted that peak crowds of nudists in 1974 had reached 1,200. This represents a direct enforcement cost (absent personnel pay and benefits) of $26.50 per nudist per season -- certainly equal to, if not less than, seasonal fees Naturists would gladly pay for the opportunity of hassle-free access to any one of a number of suitable locations for clothing-optional recreation at CCNS.

As feared, the Seashore's ban on nudity left Truro residents in an untenable and potentially costly predicament. In an about-face from the community's refusal to ban nudity in the prior year, voters at a Special Town Meeting on April 16 argued about conservation and the protection of property rights, ultimately voting by a four-to-one margin to ban nudity within the town's boundaries. Unlike the all-out ban on nudity promulgated by Supt. Hadley, the Truro ordinance requires an intent to offend others as a criterion for "public" nudity. (see Advocate article of April 17, 1975)

Truro's police chief argued successfully at that same Town Meeting for a $14,000 budget increase, mostly to cover enforcement support for the Seashore's nude bathing ban. In this community of approximately 1,000 registered voters, the chief's request for additional enforcement funds would cost Truro taxpayers roughly $14 per resident, or another $11.65 per-nudist-per-season in addition to federal costs. The police chief's men wouldn't fare so well on the amenities side, however, as federal Seashore rangers driving their new all terrain vehicles to patrol for nudists. The police chief told Selectmen he intended to purchase 10-speed bicycles to ferry his officers between town and the points of clothing-optional beach access along Collins Road.

Thus began a new era of "environmental impacts" related to Supt. Hadley's perception of the over-riding need to eliminate nudists. Hadley supplied almost immediately (and at federal expense) a 140-foot-long, six-foot high, chain link fence erected by Truro's highway department along the South Pamet Road approach to the Ballston Beach parking area, and he promised to supply No Parking signs for town roads within a mile or two of Brush Hollow. He burned new roads across the heath behind the dunes to give greater freedom of movement to the Seashore's new heavy all terrain vehicles, routinely equipped with mace and firearms as a precaution for crowd control.

Rangers were instructed to step up now twice-daily patrols to conduct reconnaissance with binoculars from hidden and fragile dune areas, moving through and across natural dune vegetation to warn or cite any nudists spotted on the beach. Evidence of damage to the dunes in the summer of 1975 was phenomenal, though responsibility for the damage continued to be unfairly leveled at Naturists by Seashore managers. The Advocate reported court testimony on August 7, 1975, in which Raymond Yelle, a seasonal ranger, testified he had spotted Stephan Williams through binoculars from the top of a high dune and had been forced to walk down the side of the dune in order to issue citations to Williams and friends. The Advocate noted that walking on the dunes is forbidden by Seashore regulations and subtitled its report with tongue in cheek, "We Had To Destroy The Dune To Save It."

A survey of damages inflicted by Seashore rangers as they conducted these anti-nudity patrols was completed in September 1975 and is attached.

In the meantime, the Truro Beach Commission's chairman resigned to make time for his business activities, which included a Truro Center parking lot used by beachgoers. In the week following the vote by Truro residents to ban nudity and the subsequent resignation of the Commissioner, residents refused at another Town Meeting to adopt an environmental parking-towing ban to protect roadside vegetation and turned down a bylaw that would have licensed and regulated privately-owned parking lots in town.

Approved, however, were police requests for additional manpower and bicycles to enforce the nudity ban. The town imposed parking stickers available only to Truro landowners and their guests, effectively denying access to the federal property of the National Seashore for other visitors to the area.

The Civil Liberties Union of Massachusetts (CLUM) mounted a legal challenge to the Seashore's nudity ban in late May 1975, arguing and ultimately losing on a variety of constitutional points. In court, as in our earlier efforts to deal directly with Seashore Supt. Hadley, the "common sense" line of questioning revealed the probability of more effective and less costly results if the Seashore had managed for nude recreation. Just as Cape Codder reporters Greg O'Brien and John A. Ullman suggested in their coverage of opening day arguments (copy of June 26, 1975, article attached), both Hadley and the courts ultimately "closed the window", but it didn't get warmer outside.

CLUM filings at the Federal District Court in Boston included the Affidavit of Stephen Williams, an earlier advocate before the town's Selectmen who favored managing for nude recreation, and at the time of filing, the newly selected chairman of the Truro Beach Commission. The Commission is an elective body which administers the parking lots and Town landings, or beaches, of Truro. The then-32-year-old local official stipulated his family history in Truro dating back to 1920, including his experience with the community's laissez faire courtesy to resident and visiting nudists at the seashore. Williams stated:

"I have investigated the decision-making rationale of the Park Service in this matter. And it is apparent that the Washington Office feels that a 'one-time' expense of $5,000 to $10,000 to stabilize an access path is a socially unacceptable use of public money. They maintain, however inconsistently, that a 'per-annum'expense of $33,000, the minimum figure quoted by Park officials, for the harassment, arrest, fines and possible incarceration of naked vacationers, is a more acceptable use of public money at this time."

Similarly, nationally syndicated Boston Globe columnist Ellen Goodman criticized the agency's approach to problem-solving on June 27, following opening-day court arguments. She prefaced her criticism with the observation that an additional 12,000 beach enthusiasts in swimsuits occupied six CCNS beaches on those same days in which Seashore officials were touting the presence of 1,200 nudists on the nude beach which extends for three miles: "From the testimony it became clear that while the dune erosion problem is real, it was not the exclusive fault of the nudist enthusiasts. It also seemed obvious that the 10 rangers assigned to ticketing people in the buff (the rangers are clad) might be better used guarding the duneways. Similarly the parking problem in the area was not the result of only the people who use Brush Hollow. And a parking problem deserves a parking solution, not a massive cover-up. The current regulation picks out the most exposed group for discrimination and foolishness."

Goodman's comment about "discrimination and foolishness" stands up well within the context of an excellent follow-up summary (attached) published July 3 by the Cape Codder under O'Brien's by-line. O'Brien describes versions of "the less restrictive course of action" as an important thread in arguments raised by both plaintiffs and the defense in CLUM's legal challenge to the federal ordinance. In this exchange attorneys play a vigorous game of handball in efforts to twist the legislative history of the founding of the Cape Cod National Seashore to their client's advantage. Unfortunately, it is not apparent from a reading of the decision rendered by the umpire on the bench that a comprehensive reading of the statute enacted by Congress and its legislative history in committee proceedings was undertaken by any of the parties in Federal District Court at the time.

As a consequence, Naturists and many others are left with significant case law that is seriously at odds with the legislative history -- presenting major obstacles for residents and user groups at CCNS who believed in 1961 that politicians and agency managers had made a commitment to preserve the culture and social fabric of the area.

For the record: daily nude beach use along these three miles averaged only 340 people in the two-month peak period of 1974, according to court testimony from Supt. Hadley -- a modest level of use, despite the national notoriety to which the superintendent's actions had exposed Cape Cod, e.g., coverage in both Time and Newsweek in that year.

Even our best efforts to organize a protest against the ban and the court's decision produced not more than 1,500 people at Brush Hollow Beach on August 23, 1975 -- and according to press accounts, resulted in no unruly behavior nor ecological damage. In the August 28 Provincetown Advocate a young mother summed up what reporters felt to be the general sentiment in Truro (article attached): "I know this is an important civil rights issue. I'm sorry the Seashore chose to ban nudity in order to solve a parking problem, but I wish this confrontation would take place in some other town."

Hadley's calculated allegation of hordes of nudists and gawkers left a lingering impression, reflected even today in the DGMP. He convinced his agency and the community that the Seashore was under assault from a single user group, the Naturists. Reality, however, was and is substantially different from the misleading statements and fear that have become Hadley's legacy.

In 1975 there were very few places along the Atlantic seaboard for nudists to go. Cape Cod was then "known" to nudists in search of a vacation because it had become well-established among the modest number of nudist residents and others who regularly visited the Truro beaches in the 1940s, 50s and 60s. Visitors returned because the only other choices in those days were less spectacular beaches at Fire Island NS and Sandy Hook, Gateway NRA. Little else was open to them on public lands and even fewer nudist resorts existed in America in those years.

Study: Visitor Use and Social Problems at Cape Cod National Seashore

Supt. Hadley received the Preliminary Report for the above titled study in August 1975, prepared by the Cooperative Research Unit of City University of New York and available in your files. This version of the report contains presumptions which appear to underlay the current DGMP. These presumptions must therefore be challenged since there seems to be no evidence of a Final Report and the preliminary document therefore has continued to function as a primary vehicle by which Hadley's anti-nudity myths are carried forward into the DGMP.

Principally, this report 1) accepts the Seashore's premise of damage caused by Naturists uncritically; 2) regards the pro-nudity element at CCNS as entirely unorganized; 3) makes no attempt to evaluate the sociological meaning of the August 23 protest; and 4) overlooks the role of lobbying by the Truro Neighborhood Association. Specifically:

Pg. 4 Collection of Documents: Researchers depended upon a vast array of documents provided by CCNS and the community, but excluded documents from our Free Beach association from their study.

Pg. 5 "Both researchers spent these three days collecting data in the field, i.e., the 'nudie beach'.": This undignified term establishes an attitude of disrespect for Naturists that is prevalent throughout the report and contributes to the legacy of discrimination against nudists at CCNS.

Pg. 8 "...CCNS found that nude bathing had indeed become a serious social problem,and moved to ban nude bathing on Seashore property.": Unlike the proceedings at Boston before the Federal District Court, this study team makes no effort to examine alternatives (to the ban) that were available to Seashore managers. In choosing to ignore several viable alternatives in favor of a ban, a "mood" was established among traditional nude beach users which should have been seen as critical to an evaluation of public response to enforcement of the ban.

Pg. 11 "In contrast to the ban's proponents who legitimated [sic] their position by demonstrating a direct, vested interest in the town of Truro...": This rather oddly-constructed analysis of public comments on the published Draft Special Regulation leaves an impression that Truro advocates of the ban legitimized the Seashore's action via administrative process. Elsewhere, Supt. Hadley has admitted to local reporters that lobbying pressure from a small, organized group of Truro residents precipitated his new policy on nude bathing. It should not have been surprising to then find that these same citizens responded to the Federal Register notice in disproportionately high numbers. The research team was clearly directed to "analyze" a phenomena about which they were given insufficient political background.

Pg. 13 "Reactions to receiving a courtesy tag predictably range from pleasant acceptance to outright hostility and the most common response observed is acceptance with a minimum of hostility. Two reasons may account for this. The widespread publicity the issue has received and the numerous signs the Seashore has posted made most people well aware of the fact that they were violating a regulation...Second, a low-key and friendly attitude assumed by the rangers in this situation greatly reduced the potential for any serious conflict.": Aside from the waste of federal funding in sanctioning such sophomoric drivel, this paragraph reflects a total lack of understanding for sentiments that motivate civil disobedience. Moral outrage is properly reserved for those who make offensive policies, not for employees sent to the field to enforce such policies. To say that enforcement techniques proved to be "quite effective"

(Pg. 14) begs the question. Nudists were still present on the beach three months after the effective date of the Special Regulation banning nudity.

Pg. 14 "The CCNS has two distinct advantages in enforcing the regulation prohibiting nude bathing. It is not difficult to imagine how vulnerable one feels standing in naked confrontation with a fully clothed ranger. In this kind of social situation, clothing becomes a crucial variable enabling ne to respond with some sense of dignity.": This is an absurd statement, reflecting the author's total lack of knowledge about Naturism. "Regardless of an individual's feelings about his right to bathe nude, the social necessity for clothing is deeply implanted in all of us.": This is an equally absurd statement, reflecting in this instance the author's personal fears and prejudices. Overcoming such negative body image is the fundamental principle of Naturism. "Another advantage for the rangers is that people come to the Cape to have a good time. No one has shown a preference for the Barnstable County jail when they could be swimming and relaxing on a beach, so when told that arrest is a definite possibility, even the most hostile nude bather has backed down.": If this were the simple and complete truth, the ban on nudity might have been said to have accomplished its management purposes. Researchers, however, needed to have looked further for any significant consequences resulting from the ban. It is true that many nudists sought then, and today, to avoid citations or arrest, but they did not as assumed abandon nude recreation. While researchers limited their observations to selected traditional nude beach sites, the majority of nudists were ranging freely through other (and to them, new) secluded portions of CCNS. An investigation and acknowledgment of this conse- quence of the ban would have underscored the difficulty of enforcing such a policy at CCNS.

Pg. 15 "A NPS jeep driving down the beach several times daily and the presence of several rangers with binoculars standing behind on the dunes (emphasis added) is upsetting to many...": As the Advocate noted, "We had to destroy the dune to save it." Another reference to "...patrol in a jeep on the dunes..." occurs on Pg. 19.

BIBLIOGRAPHY: Padding a bibliography of research materials with such weighty tomes as "Satisfaction in the Camping Experience -- A Conceptualization and Guide to Social Research" may have fulfilled NPS contracting requirements, but it afforded little expertise to the task at hand. The single work on social nudism in a 20-title listing was wholly inadequate for the subject matter at hand. Nowhere in the research listing are there references to the civil rights issues which framed the heart of the civil disobedience which was being observed, recorded and analyzed by the research team.

If I have belabored an outdated study, it is being done to make a point. Without a grasp of this history, it's difficult to put into context the comments from Naturists that have now accumulated on your desk. With respect to these older documents, this "research", together with studies of dune damage conducted by Paul Godfrey, and including false assumptions about "hordes of nudists and gawkers" who have no better alternative than to flock to CCNS for recreation ... these are the documents that provided the underlying fabric upon which a ban on nudity was rationalized. As stated by many local Cape Cod residents in the paper trail which developed: Supt. Hadley banned nudity in order to solve a parking problem. This can be rationalized, but it cannot be justified.

Current Attitudes

I have been most disturbed in recent months to read the same false assumptions in statements by the Seashore's spokesperson in this matter, Deputy Superintendent Linda Canzanelli. She is undoubtedly relying on historical records that she has been given no reason to doubt, but your management staff needs to realize that much of the "official" historical record wanders along a dubious trail.

An example is the frequently occurring statement to local media and the assertion in the DGMP that "nudity is illegal" in Massachusetts. Questioned by a reporter for the Provincetown Advocate about the National Park Service's tolerance for the clothing-optional beach at Sandy Hook in the Gateway National Recreation Area, Canzanelli was reported in the April 18, 1996, issue to have said if the rangers there allow nude bathing, that means New Jersey state law permits public nudity. Canzanelli was correct. Mere nudity in New Jersey is not illegal. Like so many states, including Massachusetts, legislators focused on intent and behavior, not mere nudity.

New Jersey state law says: A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed. "Lewd acts" shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person."

Massachusetts state law, contrary to the assertion in the DGMP, established virtually the same standard for purposes of prosecution as New Jersey law and cannot be read as a ban on mere nudity: C. 272 /s 16 & 53 are subject to Instruction 5.423 governing INDECENT EXPOSURE: In order to prove the defendant guilty of this offense [indecent exposure], the Commonwealth must prove three things beyond a reasonable doubt: First: That the defendant exposed his (her) (genitals) (buttocks) (or) (female breasts) to one or more persons; Second: That the defendant did so intentionally; and Third: That one or more persons were offended by the defendant's thus exposing himself (herself).

In both New Jersey and Massachusetts, it is not possible to prove that the plaintiff was "offended" if the plaintiff has knowingly entered a clothing-optional area, or entered such area with the intent of being offended. This is especially true at clothing-optional areas where signage has been utilized to inform the public. Likewise, courts will not generally find for the plaintiff if a law enforcement officer is the only witness to mere nudity, regardless of the defendant's "intent" to be nude.

Truro's local ordinance is constructed much like New Jersey state law: mere nudity is an offense only when it offends someone other than a law enforcement officer. Nudists have defended successfully against plaintiffs "seeking to be offended" or who had reason to know that they might expect to encounter mere nudity.

Provincetown's local ordinance is simply quixotic and extremely difficult to apply to the Herring Cove topfree sunbathing situation, or in situations of solitary nude sunbathing in which swimming does not occur or is not observed. This ordinance provides an authority to enforce against nudity only in circumstances where a person of the opposite sex is present, or where a nude person swims in waters adjacent to the township. Whatever might have motivated Provincetown citizens in the passage of such an ordinance has been overtaken by a unanimous vote of the Town Meeting earlier this year, requesting that the Seashore establish a clothing-optional beach for their use.

I think it is important to mention for your record that The Naturist Society does not tolerate lewd behavior. People often confuse nudity with sexuality. Naturists, however, draw a firm line between the two. Sex in a public place is lewd and it is never acceptable. But simply being nude is not lewd.

Ms. Canzanelli also raised public doubts in that same article about her agency's tolerance of clothing-optional beaches at other locations. She was reported to have been "surprised" by the news that CCNS was the only unit of the National Park System with a Special Regulation against nudity. "That's very interesting, since National Park by-laws are not allowed to have clothing optional areas," Canzanelli told the Advocate. I found her remark to not only be technically incorrect but, frankly, disrespectful of other Park superintendents, the majority of whom have chosen to manage some share of the resource for clothing-optional use. Specifically, NPS superintendents have utilized informational clothing-optional signs for the convenience of nudists and non-nudists at Sandy Hook, Lighthouse Beach and Playalinda Beach. At dozens of other NPS-managed locations nudity is informally accommodated.

On May 5, 1996, Ms. Canzanelli's remarks to the media were entirely unrestrained by the historical record. She told a Reuters reporter that CCNS' anti-nudity ordinance arose from a 1970s "experiment" with nude sunbathing in the area. As the facts demonstrate, nude recreation at Cape Cod long predates (by decades!) the arrival of federal Parks personnel and certainly cannot be termed "an experiment". "It wasn't just the gawkers," Canzanelli continued. "You had between 7,000 and 10,000 people a day nude sunbathing." This is an extraordinary statement, channeled by Reuters to newspapers throughout North America and picked up on the Internet. Only on one single day -- our 1,500-person protest staged August 23, 1975 -- have more than a few hundred nudists been present at CCNS at any given time. Even at peak use, they tend to be scattered at several traditional nude beaches and inland ponds.

She continued her statistical rationalization of the ban on nudity by noting that in 1994, the latest year for which figures are available, Herring Cove Beach averaged more than 147,000 visitors a day. This is an unbelievably huge figure, but Ms. Canzanelli has apparently made no gesture to correct the record. Are we to assume these 147,000 people have been nude at Herring Cove each day, as the article implied? Enforcement of the anti-nudity Special Regulation would have been undertaken at epic levels were this the case.

Another myth was perpetuated by a statement you made, Ms. Burks, in an interview appearing in the Boston Sunday Globe Magazine on July 14, 1996: "Lots of people were coming to sunbathe nude [in the 1970s] and lots were coming to watch the people who were sunbathing. At one point, some fellow was even chartering busses to bring people out to watch. And you can still see the damage on the back of the dunes." This business of the chartered busses is an old, old -- and inaccurate -- story. It riles Barry Plaxen, owner of Skinny-Dip Tours in New York City at whom Supt. Hadley first leveled the charge. It is completely inaccurate as Mr. Plaxen explained to you in his letter of July 2, 1996, refuting an earlier reference to these alleged "gawker" bus tours.

As to the damage you can "still see" on the back of the dunes, I hope you will pay careful attention to the photographs I've submitted, as well as to the written report of independent researchers who witnessed ranger abuse of the fragile dune ecology -- a consequence of anti-nudity patrols. It would be very difficult to substantiate any nudist responsibility for environmental conditions you are witnessing today. Nudists as well as non-nudists, given no help by Park managers, were obviously guilty of some inappropriate foot traffic in those years, but this is nothing compared to the impact of twice-a-day all terrain patrol vehicles.

Nudists, as well as Seashore personnel, can be "managed" to not perpetuate destructive behavior.

I don't mean to belittle or belabor either you or your staff for these remarks. I fully appreciate the kind of flawed historic record in the official files from which you are working. Reliance upon misinformation that was deliberately spread and embraced in the 1970s is entirely forgivable. I only ask that you allow this opportunity to shed light on that history. It need not continue to repeat itself.

Conclusion

User statistics and what volume of use you might reasonably expect in the future are legitimate and important questions. It is true that the number of Naturists/nudists in North America has grown steadily since 1975, but so has the number and variety of nudist resorts and clothing-optional areas on public lands and seashores available to them. Oddly, we tend to lose sites as rapidly as we gain them. This is a phenomena of technology for the most part. All terrain vehicles and other outdoor sporting equipment are taking more and more people into the remote, private areas preferred by Naturists, who have no wish to offend others in society who are alarmed by social nudism.

Today, many state and federal parks, forests and hot springs in the mid-Atlantic and New England states welcome nudists at areas set aside for clothing-optional use. From just a quick survey of guides published by our two national membership organizations, I compiled the chart which follows. It reflects merely the prime sites on public lands within traveling distance of CCNS, not the thousands of remote get-away locations in these states where nudists also discreetly enjoy outdoor recreation.

Public Lands Sites Nudist Resorts

Connecticut 3/2

Maine 5/0

Massachusetts 11, inc. CCNS 3

New Hampshire 8/0

New Jersey 4, inc. Gateway NRA 2

Eastern New York 9, inc. FINS 4

Vermont 20 _1

TOTALS: 61 12

Ironically, the dispersed recreation resources within CCNS make management for nude recreation more likely to be successful at Cape Cod than any of these sites. It is possible to clearly separate clothing-optional areas from areas where clothing is required for both Truro-based and Provincetown-based constituents of the Seashore. As was the case in the 1970s, transportation is the more difficult issue to resolve.

It's reasonable to expect initial notoriety, should the Seashore elect to experiment with managing for nude recreation. Both the enthusiastic and the curious will show up in an initial wave in numbers requiring definite controls on both boundaries and carrying capacity, ceilings on a pilot effort which should be firmly established from the onset. Look to Lighthouse Beach at Fire Island National Seashore for the "success story" in how willingness, collaboration and cooperation can succeed in management of a clothing-optional area. Look to the results at Playalinda Beach at Canaveral National Seashore for a sad example of the consequences of equivocation and hostility in management relations with the Naturists.

I understand it is your intention to sit down at an appropriate time with spokespersons representing various issues contained in the DGMP. TNS is working closely with Naturists who are residents of Cape communities, as well as others who visit CCNS frequently. I expect that they will be the "official" participants in such meetings, but I want you to know that we are committed to helping them and helping the management at CCNS resolve these issues. Whatever advice, experience or expertise we can provide will be most willingly forthcoming.

I'd also like to ask your indulgence at this time in allowing some further comment, if appropriate, once the agency has fully responded to the request for documents filed under the Freedom of Information Act by the American Association for Nude Recreation. A partial response to AANR's request has been shared with this organization, but it is difficult to respond without the complete information to which the public is entitled.

I am joined in this statement by Shirley Mason, chair of the Naturist Action Committee. The NAC board, led by nine persons elected from the membership of The Naturist Society in North America, works for political and social change favorable to those who enjoy the clothing-optional lifestyle. You have already received comments separately from the NAC member responsible for activities in the New England states, Morley Schloss of Rochester, NY.

Naturally,

/s/ Lee Baxandall, President, The Naturist Society

/s/ Shirley Mason, Chair, Naturist Action Committee

December 31, 1996

Enclosures: As indicated, including petitions.

The Lawmaker's Guide to Skinny-Dipping Issues