NEW ENGLAND NATURIST
ASSOCIATION, INC., ET AL. v. HOWARD N. LARSEN, ET AL.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE
692 F. Supp. 75; 1988
COUNSEL: [**1]
Stephen J. Fortunato, Jr.,
Everett C. Sammartino, U.S. Attorney's Office,
JUDGES: Ernest C. Torres, United States District Judge.
OPINIONBY: TORRES
OPINION: [*76] MEMORANDUM AND ORDER
ERNEST C. TORRES, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the plaintiffs' request for a preliminary
injunction that would require the defendants to dismantle a fence which they
have erected on a portion of
FINDINGS OF FACT
New England Naturist Association, Inc. (the "Association") is a
non-business corporation chartered under the laws of the State of
The Refuge is located in the Town of South Kingstown, Rhode Island. Initially,
it consisted of 365 acres of land that was donated to FWS in 1974. Subsequent
donations and purchases have expanded its size to approximately 641 acres. It
is composed primarily of grassy sand dunes, marsh land, and ponds. Because of
these features, the Refuge is a prime nesting area for several species of
birds, including the Piping Plover and the Least Tern, which lay their eggs in
the sand during the spring and, together with their fledglings, feed along the
shore during the summer months. The southerly border of the Refuge abuts the
waters of Block Island Sound and consists of an expanse of sand approximately
120 feet wide and more than 7,000 feet long which is known as
For many years, the public has used
In 1983, FWS became concerned that human activities on the beach might be
having adverse effects upon the reproductive activities of the Least Tern and
the Piping Plover. In particular, FWS feared that the activities of bathers
were destroying nests, inhibiting mating, and that refuse left by bathers was
attracting predators. Accordingly, FWS partitioned the westerly portion of the
beach by erecting 4,000 linear feet of fence along a line parallel to and above
the shoreline.
In January of 1986, FWS's concern was further heightened by the Plover's
official designation as a "threatened species" under the Endangered
Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., which required FWS to
do everything in its power to protect the species. This development, together
with the donation of additional beach front property to the east of Moonstone
Beach Road, caused FWS to extend the fence an additional 750 feet
[**4] leaving approximately 1550 feet at the east end of the beach
for public use.
By 1987, FWS still was not satisfied with the balance it had attempted to
strike between [*77] public enjoyment of the beach and the needs of
the Plovers. That dissatisfaction was reinforced by the findings of a study
conducted by the Service's Piping Plover Recovery Team to the effect that the
proximity of humans interfered with the Plover's reproductive activities and
that the section of
Accordingly, FWS developed a Master Plan for management of the Refuge which
proposed, among other things, to further restrict public use of
A draft Environmental Assessment ("EA") outlining the anticipated
environmental effects of the plan and several alternative courses of action was
circulated by FWS for public comment. In January of 1988, a final environmental
assessment was prepared. It discussed the comments received in response to the
draft and included a finding that preparation of a full-blown Environmental
Impact Statement ("EIS") was not required because the environmental
effects of the proposed plan were not significant.
Several months later, FWS erected a fence excluding the public from an area
extending the entire length of the beach and bounded on the South by a line
ranging from 57 feet to 83 feet above the mean high-water line. Plaintiffs,
thereupon, commenced this action for a declaration of their right to use
1. Defendants had no authority to erect the fence in question because it
encompasses a portion of the intertidal zone which is owned by the State of
Rhode Island and held in trust for the use of its [**6] citizens.
2. Prohibiting the plaintiffs from sunbathing nude within the fenced portion of
3. Defendants acted unlawfully in erecting a fence without first filing a
determination, pursuant to the Coastal Zone Management Act ("CZMA"),
that such action was consistent with
4. Defendants acted unlawfully in erecting a fence without first filing an EIS
pursuant to the National Environmental Policy Act ("NEPA").
DISCUSSION
Preliminary Injunction Standard
In considering the plaintiffs' contentions, it must be remembered that what they
seek, at this stage of the proceedings, is a preliminary injunction. The
standard for determining whether a preliminary injunction should issue was
succinctly set forth in Planned Parenthood League of Mass. v. Bellotti, 641
F.2d 1006 (1st Cir. 1981) where the Court said:
"In the First Circuit, a plaintiff must satisfy four
criteria in order to be entitled to a preliminary injunction. The Court must
find: (1) that plaintiff will suffer irreparable injury if [**7]
the injunction is not granted; (2) that such injury outweighs any harm which
granting injunctive relief would inflict on the defendants; (3) that plaintiff
has exhibited a likelihood of success on the merits; and (4) that the public
interest will not be adversely affected by the granting of the
injunction."
In this case, analysis of the first two factors is relatively inconclusive but
suggests that injunctive relief is inappropriate. The harm suffered by the
plaintiffs in being [*78] deprived of sunbathing on a portion of Moonstone
Beach may be characterized as irreparable in the sense that the enjoyment
associated with that activity at that location cannot be precisely measured
and, once lost, cannot be restored. However, the magnitude of that harm is
diminished by the fact that the plaintiffs are being prevented from using only
a portion of the beach. The evidence demonstrates that they remain free to use
the 57-83 feet of beach between the fence and the high-water line which
constitutes nearly one half of the beach area. In addition, they have the
alternative of pursuing their activities at other beaches, though perhaps not
in the nude or in surroundings that are [**8] as much to their
liking.
To a lesser degree, the same may be said with respect to the injury likely to
be inflicted upon the Plover. Certainly, anything that potentially inhibits the
Plover's reproductive activities constitutes a threat to the bird's very
survival as a species. However, the evidence shows that
It is equally difficult to assess the extent to which the public interest would
be adversely affected by the granting of an injunction because there are two
conflicting public interests that would be affected in opposite ways. On the
one hand, an injunction would have a salutary effect on the public interest in
preserving public access to the coasts for recreational purposes which is
recognized by both CZMA (16 [**9] U.S.C. § 1452(2)(D)) and the
Rhode Island Constitution (R.I. Const. Art. I, § 17). On the other hand, the
injunction sought would adversely affect the public interest in protecting
wildlife and their habitats, in general, and threatened species, in particular,
which are also recognized by CZMA (16 U.S.C. § 1452(2)(A)) and by ESA (16
U.S.C. §§ 1531 et seq.).
Consequently, while the aforementioned considerations militate slightly in
favor of denying an injunction, the conclusive factor appears to be whether the
plaintiffs have exhibited a likelihood that they will succeed on the merits. It
is that factor to which the Court will now turn its attention.
FWS's Jurisdiction
The plaintiffs assert that the portion of beach from which they have been
barred is owned by the State of
As previously stated, the Refuge is bordered on the South by Block Island
Sound. Under
The uncontroverted evidence is that the fence in question ranges from distances
of 57-83 feet above the mean high-water line as delineated by FWS's surveyor.
While it appears that the line was based on geodetic survey information rather
than on Metonic cycle data, the distance between the line [*79] and
the fence seems to afford a more than ample margin for possible error.
[**11] Nor is there any suggestion that the fence impedes public
access to or from the shoreline along
The Constitutional Claims
The plaintiffs' Constitutional arguments are difficult to address because the
nature of the rights they assert is not precisely defined. The gist of their
contention seems to be that since they used the portion of Moonstone Beach in
question in the past; and, since they gathered there to share their common interest
in nudism, their activities constitute an exercise of their associational and
property rights which are protected by the First Amendment and the due process
guarantee of the Fifth Amendment. The applicability of the Ninth Amendment is
more difficult to discern. The plaintiffs have failed to articulate any basis
for bringing their conduct under the protective umbrella [**12] of
that Amendment nor have they cited any authority holding that nude sunbathing,
particularly on a public beach, is one of the rights contemplated by it. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 In Williams v. Kleppe, 539 F.2d 803 (1st Cir. 1976), the Court assumed arguendo
that such activity was afforded some measure of substantive Constitutional
protection but concluded that it was certainly not a fundamental right
requiring application of the strict scrutiny test. The Court proceeded to
uphold a regulation banning nude bathing at the Cape Cod National Seashore on
the ground that the regulation bore a rational relationship to the objectives
of the seashore.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The case law on this subject has uniformly rejected arguments that nude
sunbathing on a public beach is Constitutionally protected either as a mode of
expression, South Florida Free Beaches Inc. v. City of Miami, 734 F.2d 608,
610-611 (11th Cir. 1984); as a form of association, Chapin v. Town of
Southhampton, 457 F. Supp. 1170, 1175 (E.D.N.Y. 1978), or as a privacy right, Chapin,
supra. In short, while nudity in the privacy of one's own property and nudity
in the context of artistic expression may be protected, it seems clear that
[**13] nude sunbathing on a public beach is not a right of
Constitutional dimension.
It is even clearer that nudity does not confer a license to sunbathe on a beach
that has been closed to the public. In this case, it is not nude sunbathing
that has been banned on
Consequently, the issue in this case is not whether the plaintiffs have a
Constitutionally protected right to sunbathe in the nude or to associate with
other nudists but rather whether they have a Constitutionally protected right
to do so on that portion of the beach from which the public, in general, has
been excluded. In answering that question, the plaintiffs cannot be considered
as standing on any different footing than any other members of the public.
[**14] The fact that some of the plaintiffs prefer to sunbathe in
the nude or associate with others sharing that preference doesn't confer on
them any greater right to use the beach than those who choose to wear bathing
suits. The question, in either case, is whether the defendants' actions have
deprived sunbathers, in general, of a legally recognized right to use the area
in question.
The plaintiffs are unable to identify any such right. They cite the fact that
they have used Moonstone "since time immemorial" but fail to
demonstrate any legal right flowing from such past use. Plaintiffs also
[*80] assert that Art. I, § 17 of the Rhode Island Constitution
confers on them a right to use the area in question. However, as previously
noted, that right extends only to the area below the mean high-tide line and
recognized points of access thereto. The area from which these plaintiffs have
been excluded fits neither description. Moreover, it is part of a federal
wildlife refuge and the reason for excluding them is FWS's belief that such
action is necessary to preserve the nesting habitat of a threatened species
that ESA requires them to do everything in their power to protect.
There is certainly some [**15] room for disagreement as to whether
the measures adopted by FWS strike a perfect balance between the competing
interests of sunbathers and Plovers. Nevertheless, as long as the agency's
action was not irrational or was not arbitrary, capricious or an abuse of its
discretion, that is a determination for the agency to make. Here, the Court
cannot characterize the defendants' actions as any of those things. While FWS
cannot guarantee that those actions will increase the number of Plovers, it
concluded, after considerable study, that its action would significantly
improve conditions by increasing the nesting area and reducing human
interference with the reproductive process. Further, FWS estimates that such
action would increase the birth rate of young Plovers from 3-4 to 3-14
annually.
In sum, the Court finds that barring the plaintiffs from the area in question
has not infringed upon any associational right, property right or other
Constitutionally recognized right secured to them by the First, Fifth, and/or
Ninth Amendments and it was not arbitrary, capricious or an abuse of FWS's
discretion.
Failure to File a Consistency Determination
A much more troublesome question is whether [**16] CZMA required
FWS to file a determination that its proposed action was consistent with
CZMA emanated from Congress' recognition that . . . increasing and competing
demands upon the lands and waters of our coastal zone . . . have resulted in the
loss of . . . wildlife, . . . decreasing open space for public use, and
shoreline erosion." 16 U.S.C. § 1451(c). Among its objectives are the
protection of "wildlife and their habitat" and provision for
"public access to the coasts for recreation purposes." 16 U.S.C. §
1452(2)(A), (C). To achieve those purposes, the Act includes a variety of
provisions designed to encourage the states to develop coastal zone management
programs and to promote cooperation between federal and state agencies engaged
in programs affecting the coastal zone. In an effort to reconcile the
potentially conflicting state and federal interests involved, the Act requires
federal agencies engaging in activities within a coastal zone to take
cognizance of any applicable state plan that has been approved by the Secretary
of Commerce.
"Each Federal agency conducting or supporting
activities directly affecting the coastal zone shall conduct or support those
activities in a manner which is, to the maximum extent practicable, consistent
with approved state management programs."
16 U.S.C. § 1456(c)(1) (1982 ed.) [emphasis added].
The Secretary of Commerce has promulgated detailed regulations governing the
procedures to be followed in effecting that accommodation. The regulations
require federal agencies engaging in planning or construction activities which
directly affect the coastal zone of a state having an approved management plan
to provide the state with a detailed description of the activity and its
anticipated effects on the coastal zone together with a brief statement
indicating whether or not the proposed activity will be undertaken in a manner
consistent, to the maximum extent practicable, with the state's management
program. See, 15 C.F.R. §§ 930.31, 930.33, and 930.34. Among the factors to be
considered by the agency is the impact its actions will have on beach access.
15 C.F.R. § 930.39(b).
[*81] The regulations further [**18] mandate that the
consistency determination be provided before the agency reaches a decision and
at least 90 days prior to final approval of the proposed activity unless the
agency and the state agree otherwise. 15 C.F.R. § 930.34(b). They also provide
a comprehensive procedure by which the state may communicate its disagreement
with a consistency determination and seek mediation by the Secretary if the
disagreement remains unresolved. 15 C.F.R. § 930.41-930.44.
In this case, there is no question that FWS failed to file a determination that
its proposed action was consistent with
Given the failure to file a consistency determination, the question becomes
whether such a filing was required. As previously noted, CZMA § 307(c)(1) and
the pertinent regulations require a federal agency to submit a consistency
determination only with respect to activities "directly affecting the
coastal zone." In defining the "coastal zone," the Act
specifically excludes lands held in trust by the federal government. Thus, it provides,
in relevant part, that:
". . . Excluded from the coastal zone are lands the use
of which is by law subject solely to the discretion of or which is held in
trust by the federal government, its officers or agents."
16 U.S.C. § 1453(1).
FWS contends that, since the fence in question is located within the boundaries
of the Refuge held in trust by the federal government, it is outside of the
coastal zone. Therefore, it concludes that no consistency determination was
required. While the premises of that argument are correct, the conclusion does
not necessarily follow. The mandate of CZMA § 307(c)(1) applies not only to
federal activities within the coastal zone but also to activities directly
affecting it. [**20] As noted by the United States Supreme Court,
the legislative history of CZMA indicates that these words were inserted as a
compromise between the House bill, which included federally controlled lands
within the definition of the "coastal zone" thereby subjecting all
activities on those lands to the consistency requirement, and the Senate bill,
which excluded federally controlled lands from the definition of the
"coastal zone" thereby totally exempting activities on those lands
from that requirement. Consequently, the words "directly affecting"
were intended to require that activities conducted on land under federal
jurisdiction be consistent with state management plans, but only if those
activities impact other areas within the coastal zone. Secretary of the
Interior v.
In this case, it is at least arguable that some of the proposed actions
described in FWS's Master Plan may have direct effects extending beyond the
boundaries of the Refuge and into the coastal zone. Thus, it is conceivable
that the experimental removal of vegetation or the creation of an artificial
island in Trustom Pond might impact the area surrounding the Refuge. Indeed, it
[**21] is difficult to see how the breach of Trustom Pond can be
accomplished without physically intruding upon and altering the intertidal zone
through which sea water will presumably ebb and flow.
However, it is not those proposed actions that are being challenged. What is
being challenged is the erection of a fence and the question presented by that
challenge is whether that fence "directly affects the coastal zone."
The record is totally devoid [*82] of even a suggestion that the
fence has any environmental effect. On the contrary, the EA specifically states
that the fence was designed so as not to promote artificial dune formation.
Furthermore, as previously stated, the evidence establishes that the fence is
well above the mean high-tide line and does not impinge on any legally
recognized right the plaintiffs may have to reach and use the intertidal zone.
The only effect of the fence cited by the plaintiffs is that it prevents them
from using the remaining portion of the beach for sunbathing. That restriction
certainly affects the plaintiffs and the activities they desire to engage in on
the Refuge property. It even might be viewed as affecting the Refuge property
itself. However, it clearly [**22] does not affect the area outside
the Refuge constituting the coastal zone. Consequently, no consistency
determination was required with respect to action barring plaintiffs from the
disputed portion of
Need for Environmental Impact Statement
Section 102(2)(C) of the National Environmental Policy Act requires federal
agencies proposing "major Federal actions significantly affecting the quality
of the human environment" to prepare a detailed statement regarding the
environmental impact of the proposed action and alternatives to it. 42 U.S.C. §
4332(2)(C).
Regulations promulgated by the Council on Environmental Quality require that
the agency first prepare an environmental assessment identifying the
environmental effects of the proposed action. The principal purpose of the EA
is to help determine whether the effects are "significant" enough to
trigger the obligation to file a full-fledged EIS. 40 C.F.R. §§ 1501.3, 1501.4,
1508.9, and 1508.27 (1984).
Thus, an EA is not a substitute for an EIS; but, rather, is a means for
determining whether an EIS is required. The distinction between the two
documents was aptly described in Sierra Club v. Marsh, 769 F.2d 868
[**23] (1st Cir. 1985) where the Court said:
"An EA aims simply to identify (and assess the
'significance' of) potential impacts on the environment; it does not balance
different kinds of positive and negative environmental effects, one against the
other; nor does it weigh negative environmental impacts against a project's
other objectives . . . this latter balancing job belongs to the officials who
decide whether to approve the project; and (where there are 'significant
effects') those officials should make the decision in light of an EIS . . . The
purpose of an EA is simply to help the agencies decide if an EIS is
needed."
If, based upon the EA, the agency concludes that its proposed action will have
no "significant" environmental effects, it must submit a finding so
stating which is known in the vernacular as a FONSI (finding of no significant
impact). In this case, as already noted, FWS did prepare a reasonably detailed
EA from which it concluded that the environmental effects of its proposed
actions were not significant enough to require preparation of an EIS.
Accordingly, a FONSI was filed.
The plaintiffs make the naked assertion that depriving them of the opportunity
[**24] to sunbathe on a portion of the beach does constitute an
action "significantly affecting the quality of the human
environment." This contention fails to recognize the distinction between
actions affecting the property and ecosystems comprising the Refuge and actions
affecting the activities that may be conducted there. It confuses actions
affecting the environment itself with actions affecting activities conducted
within the environment. Generally speaking, NEPA's requirement of an
environmental impact statement is triggered by the former but not by the
latter.
It is conceivable that there could be situations in which action affecting
activities conducted within the environment indirectly and adversely affect the
environment itself. However, this clearly is not one of those situations.
Barring the plaintiffs from
In short, while FWS's actions have clearly affected plaintiffs' sunbathing
activities on
CONCLUSION
Since the plaintiffs have failed to demonstrate a likelihood of success on the
merits of their claim and since the injury that the plaintiffs will suffer if
an injunction is withheld does not outweigh the injury that would likely be
inflicted if an injunction is granted, the request for a preliminary injunction
is hereby denied.
IT IS SO ORDERED