Are California's Nude Beaches Doomed?

SAN FRANCISCO—If there's one axiom that sexual freedom supporters should always keep in mind, it's that laws containing sex-suppressive language must be fought, preferably before they're enacted, even if the lawmakers assure everyone that the bad parts of the law won't be enforced.

The latest example of this is the state Court of Appeals decision in the case of Naturist Action Committee v. California State Department of Parks & Recreation, filed on July 17, which overturns a directive which Russell W. Cahill, the Parks Department director, issued in 1979.

Seems that Sec. 4322 of the California Code of Regulations states that, "No person shall appear nude while in any unit [of the state parks system] except in authorized areas set aside for that purpose by the Department"—and almost needless to say, no "authorized areas" of the state parks system were in fact set aside for naturists and other "sun worshippers" in which to "appear nude."

But while Cahill did not have the authority to change the parks regulations, he did issue an internal memorandum to his subordinates which read, "No clothing optional beaches will be designated within the California State Park System at this time. During the public meeting process, it became clear to me that the public is extremely polarized on this issue. It also became clear that there is a serious concern on the part of clothing optional beach opponents about the extra costs of patrolling beaches so designated. Proponents' arguments that a few miles of beach be set aside for their use were pervasive. However, serious opposition from legislators, county supervisors and local governing bodies lead me to believe that designating such areas will focus opponents' attention upon what seems to be a victimless crime at worst, and certainly an innocuous action.

"The cost of extra services argument is a good one. Therefore, it shall be the policy of the Department that enforcement of nude sunbathing regulations within the State Park System shall be made only upon the complaint of a private citizen. Citations or arrests shall be made only after attempts are made to elicit voluntary compliance with the regulations. This policy should free up enforcement people to concentrate on other pressing duties."

It's a simple enough concept: Nudity, even in public, hurts no one, though there will always be some who object to it, so absent actual citizen complaints of lawbreaking, police and other law enforcement personnel should leave nude sunbathers to do their thing in the areas where they're already doing it.

One of those places was known as "Trail 6 Beach," an isolated stretch of San Onofre State Beach just down the road from the San Onofre nuclear power plant—but according to the appeals court, "The substantial population growth in north San Diego and Orange Counties has concomitantly increased the number of visitors to Trail 6 Beach in the last several years," and, "With that has come 'a significant increase in the number of incidents involving public nudity, and complaints, citations, or arrests involving criminal conduct at [the beach], including complaints and citations or arrest for public nudity or lewd and lascivious conduct.'" There were also complaints by Park Service personnel of a "sexually charged, harassing and hostile work environment" at the beach. (Of course, the appeals opinion didn't specify what conduct was considered criminal or gave rise to the arrests and citations, but it hardly seems fair to fault a recognized nude beach for displays of "public nudity.")

In any case, by May of 2008, the complaints had reached the ear of the Parks Department's then-director, Ruth Coleman, who promptly rescinded the "Cahill Policy" with an internal memo which read, in part, "[Cahill's] policy has significantly insulated this behavior at San Onofre State Beach from legal prosecution, based on the previous opinion that the area was remote. In the ensuing years with significant population growth and the advent of the internet, the location has devolved to an area more prominently known for various lewd and lascivious conduct, and can no longer be considered 'remote', but rather the fifth most visited State Park that attracts families, children and individuals seeking opportunity to camp, surf, fish, walk and observe wildlife in a pristine coastal environment. Additionally, the explicit and illegal conduct of park visitors at the Trail 6 area of San Onofre State Beach creates a sexually charged, harassing and hostile work environment for [department] employees assigned to maintenance, revenue collection, public safety, resource protection, and interpretation duties in this park unit. Therefore, I am immediately rescinding the Cahill policy as it applies for San Onofre State Beach."

Needless to say, locals who frequented the Trail 6 Beach were none too happy about the decision, and several pro-nudist groups, including the Naturist Action Committee, promptly sued the Parks Department and Coleman to have her memo rescinded and the Cahill Policy reinstated, and the Superior Court granted the plaintiffs' motion for a writ of mandate to do so.

The appeal court opinion, however, focused on whether Cahill's original memorandum was, in effect, a "regulation" promulgated by the Parks Department, as the trial court had concluded it was. Indeed, the appeals court agreed that it was a "regulation," but that it had never been validly adopted in the first place—there had been no public notice of its adoption, and the public had never been given a chance to comment on the proposal—and therefore was automatically void under the Administrative Procedures Act (APA).

"If an agency adopts a regulation without complying with the APA requirements it is deemed an 'underground regulation' and is invalid," Presiding Justice William Rylaarsdam wrote for the three-judge panel. "Because the Cahill Policy is an underground regulation it cannot be enforced. Thus, the latest directive of the department rescinding the policy does not have to go through the APA rule-making process. Its effect is merely to discontinue an invalid policy." [Citations removed.]

What that means, of course, is that there are effectively no longer any state nude beaches in California, since anyone caught skinny-dipping (or skinny-sunning or skinny-volleyballing) at a state beach can be issued a $500 citation, though no one apparently will be detained under the new policy.

However, since this is a state court ruling, various nude beaches on federal park land, such as the Golden Gate National Recreation Area, as well as various private beaches where nudity is allowed, such as Muir Beach in Marin County, will not be affected.

Moreover, the Naturist Action Committee has vowed to appeal the appeals court ruling to the state Supreme Court, and to lobby the Parks Department to designate at least some areas where nudists can practice their lifestyle.