Williams v. Hathaway

• Citation: 400 F. Supp. 122
• Decision Date: 11 July 1975
• Docket Number: Civ. A. No. 75-2050-F.
• Parties: Stephen WILLIAMS et al. v. Stanley K. HATHAWAY et al.
• Court: U.S. District Court — District of Massachusetts

400 F. Supp. 122

Stephen WILLIAMS et al. v. Stanley K. HATHAWAY et al.

Civ. A. No. 75-2050-F.

United States District Court, D. Mass.

July 11, 1975.

Jeanne Baker, Alan M. Dershowitz, Cambridge, Mass., Evan T. Lawson, Boston, Mass., John Reinstein, Civil Liberties Union, Boston, Mass., for plaintiffs.

Ansel Chaplin, Boston, Mass., for intervenors.

James O'Leary, Asst. U. S. Atty., Boston, Mass., for defendants.

OPINION

FREEDMAN, District Judge.

This matter is before the Court on a complaint alleging that a regulation of the Department of Interior banning nude bathing at the Cape Cod National Seashore is invalid. As originally filed the complaint sought both injunctive and declaratory relief; plaintiffs have now waived their claim for an injunction and seek only a declaration. The parties have stipulated to much of the factual material. The Court has taken a view of the area in question and has heard evidence on the issues of fact to which the parties could not agree. After careful consideration of the affidavits and testimony and of the briefs of counsel, the Court hereinafter enters its findings of fact and conclusions of law.

1. The Cape Cod National Seashore ("Seashore") is a national park established in 1959 by P.L. 87-126 (16 U.S.C. § 459 et seq.). It comprises in part beaches, dunes and adjacent land located in the towns of Provincetown, Truro, Wellfleet, Eastham, Orleans and Chatham in the Commonwealth of Massachusetts. It includes within its limits private homes, which are not subject to condemnation. A map of the Seashore is attached hereto as Exhibit A and incorporated herein by reference.

2. Ten of the twelve plaintiffs are residents of towns located on Cape Cod whose homes are within or near the Seashore (three of them live within the Seashore limits). Two plaintiffs are residents of other Massachusetts areas. All plaintiffs are regular summer users of the beaches located within the Seashore; all plaintiffs have engaged in and wish to continue to engage in the practice of public nude bathing within the Seashore.

3. The original defendants are the several federal officials charged with responsibility for the supervision of the Seashore, and empowered to promulgate and enforce regulations pertaining to the use thereof.

4. The defendant-intervenor Truro Neighborhood Association ("TNA") is an unincorporated organization whose members own or occupy property within the Town of Truro, Massachusetts. TNA's by-laws provide that it was organized "to provide an agency for the free exercise of the needs of the people of the community as a whole and to provide an opportunity to formulate and execute plans to improve the quality of living within the total community." Currently, TNA has more than 300 members, of whom at least one-half are summer residents. Approximately 100 TNA members own improved property within the boundaries of the Seashore. Of these, approximately 30 own houses along North and South Pamet Roads or Collins Road.

5. The United States Secretary of the Interior ("the Secretary"), pursuant to the authority of 16 U.S.C. § 3, promulgated a regulation effective May 19, 1975 (36 C.F.R. Part 7, § 7.67) ("the Regulation"), which provides as follows:

Public nudity, including public nude bathing, by any person on Federal land or water within the boundaries of Cape Cod National Seashore is prohibited. Public nudity is a person's intentional failure to cover with a fully opaque covering that person's own genitals, pubic areas, rectal area, or female breast below a point immediately above the top of the areola when in a public place. Public place is any area of Federal land or water within the Seashore, except the enclosed portions of bathhouses, restrooms, public showers, or other public structures designed for similar purposes or private structures permitted within the Seashore, such as trailers or tents. This regulation shall not apply to a person under 10 years of age.

6. Long before the creation of the Seashore in 1959, nude bathing by individuals or small groups was an established and accepted practice along the Atlantic beach. Summer visitors engaged in nude bathing without governmental interference at numerous remote locations scattered along the beach fronts between established town beaches (called town "landings"). When the federal government acquired these beaches, the Park Service made no attempt to actively interfere with nude bathing at such areas.

7. During the 1960's one of the areas historically used for nude bathing within the Seashore in Truro, and loosely known as Brush Hollow, was characterized by public nude bathing in which nude persons of both sexes congregated to bathe and sun themselves. This beach area begins approximately one mile south of Ballston Beach — the Truro town beach.

8. There are four overland access routes to the Brush Hollow beach area. (Since private vehicles are not allowed on the beach during normal swimming and tanning hours, the public can only reach Brush Hollow on foot.) One route is to walk approximately one mile south from Ballston Beach along the Atlantic Ocean. A second route involves leaving South Pamet Road (the public way which leads to Ballston Beach from the south) at a curve approximately 250 yards east of the shoreline and walking southeasterly for approximately three-quarters of a mile. This route takes one across private property and then across federal property. The third route is to walk from Collins Road a distance of at least one mile due east toward Brush Hollow. The fourth route is to walk about two to three miles north along the Atlantic Ocean from the Town Landing in Wellfleet known as Newcomb Hollow Beach.

9. The beach area at Brush Hollow has been designated by the Park Service as a "natural environment area." Like many other beach areas in the Seashore which are open to the public, it is not classified as a "managed" beach; that is, it does not have lifeguards, bath houses, waste containers, sanitary facilities or public parking. Because Brush Hollow is located relatively far from any road, there are no public parking facilities of any sort within approximately one mile of the beach. The Town of Truro maintains and has maintained for many years public parking spaces for approximately eighty (80) cars at the entrance to Ballston Beach.

10. The public nude bathing which occurs at Brush Hollow does not occur within sight of persons swimming and sunning at Ballston Beach.

11. During the 1973 and 1974 summer seasons, the level of use of Brush Hollow was substantially greater than it had been in previous summers. It has been estimated by the National Park Service that the average daily use of that area was 316 persons between August 15 and September 6, 1974, with a peak of 1200 on August 25, 1974. This level of use was a significant increase over 1973. During these two summers there was increased automobile traffic on Collins Road, North Pamet Road and South Pamet Road; parking congestion occurred on the Pamet and Collins Roads, at the Ballston Beach parking area, and in and around Truro town center. The increased level of use of Brush Hollow was a significant factor in such traffic and parking problems.

12. Data was collected by Park Service Rangers as to parking problems on Collins Road from August 15 through September 1, 1974. During the 18-day period, a total of 1248 automobiles were noted parked at the roadside, or on or beyond the road shoulders. The daily totals varied from a low of seven on August 29 to a high of 175 on August 25.

13. There was exhaustive evidence by way of affidavits submitted by defendants and defendant-intervenors attesting to the environmental damage and littering which have followed in the wake of the increased popularity of nude bathing at the Seashore. While the residents of the Brush Hollow area seemed more concerned with parking problems on the Pamet Roads and Collins Road, many of their affidavits alluded to the increased littering and destruction of flora on private property and along the public roads. Several of the Park Service personnel submitted affidavits which recounted specific instances of environmental damage within the area of heaviest nude bathing use. Of particular interest to the Court was the affidavit of Paul J. Godfrey, an assistant professor of Botany at the University of Massachusetts. Mr. Godfrey is Leader of the National Park Service — University of Massachusetts Research Unit. This unit is conducting ecological studies at a site in the Brush Hollow area. He concluded, inter alia, that the approach to Brush Hollow over the dunes ". . . can, and has, led to environmental problems." This conclusion was supported by observations and experiments carried out at the high dunes area above the beach.

14. In response to the 1974 increase in use of the Brush Hollow area and the accompanying problems of traffic and parking congestion, representatives of the Truro community, including officers of the TNA, urged officials of the Seashore to take corrective action. The Park Service commenced a review of the problem and of the available alternative solutions. In December, 1974, the Northeast Region of the National Park Service published a document entitled "Management Alternatives Addressed To Nude Bathing and Related Concerns" ("Management Alternatives"), and in February, 1975, a Supplement to that document was published. Together these documents outlined eight separate alternatives.

Alternative 1 calls for a total ban of nudity within the Seashore. Among the other alternatives considered are the following:

Accommodate nude bathing at one or more existing developed beaches under Seashore management. (Alternative 5)

Provide for public use at Brush Hollow area through operation and management other than with direct National Park Service involvement, such as a concession or special use permit with the Town of Truro subject to an agreement for eventual land exchange....