Stories appearing recently in many news outlets reported on a decision by the Court of Appeals for the 4^th District of California. The decision overturned a lower court ruling that the California Department of Parks and Recreation (”the Department”) must conduct public hearings before adopting a new policy to ban nudity at San Onofre State Beach. According to the appeals judges, no such hearings are necessary prior to a nudity ban even though clothing-optional use has long been a custom at San Onofre.

 Recent, unfounded criticism

In the past few weeks, some communications have circulated regarding AANR’s position on California public lands. They have tried to paint AANR as the fool. Frankly, it has been difficult for the GAT members working tirelessly in California to suffer these unjustified, ridiculous attacks when the team is only too aware of how ludicrous these attacks are.

 However, the team feels strongly that staying its course in negotiating for protection on public lands in California, and by focusing on the importance of gaining ground with other landed agencies, as well as focusing on the very broad defense of our rights to reasonable access to recreate nude on public land, is the right decision.

 AANR’s opinion has been sought regarding the loss handed down by the California Court of appeals. Our position remains to the general public:

 “It is not our place to comment because this is not our lawsuit. For reasons AANR’s Government Affairs Team did not share, the Naturist Action Committee (NAC) filed the suit. NAC is therefore in the best position to comment on what it believes the case will mean for San Onofre…and it is for NAC to choose whether it will appeal to the California Supreme Court…or any other legal action it might take.”

 Speaking more candidly, however, to you as a big part of the nudist community, it is important for you to know your Government Affairs Team’s legal analysis of the NAC suit. From the day the suit was filed, it was unlikely to accomplish anything more than to delay the Department. Even if successful, the suit would have only required the Department to go through a public hearing process, after which it would not be bound in any fashion to follow any recommendations made through the hearing process, and could have then proceeded to do as it pleased at San Onofre.  AANR still is committed to continuing to try to negotiate a positive outcome regarding San Onofre. However, it is also our unanimous opinion that the Department had its heels dug in over San Onofre to start with. After being sued, officials were dug in to their hips regarding that particular beach. At this stage, it will be considerably more difficult and will likely take years, if it is at all possible, to achieve.

 The nudist community is “fortunate” that the Appellate court decision was unpublished and cannot therefore be “formally” used as a precedent elsewhere. Should NAC elect to go forward-which if reports are correct it seems poised to do-and the California Supreme Court upholds the appellate decision, even this slim “positive” evaporates.

 What is the Cahill Policy?

The events which continue to unfold at San Onofre, and the very hard work that your AANR Government Affairs Team is doing elsewhere in California, overlap in one very important respect: the Cahill Policy.

 It is very much our place-and critical-to set the record straight on AANR’s work persuading the Department to voluntarily preserve the valuable legacy of Cahill on state lands beyond San Onofre.

 Let’s start by talking about the Cahill Policy and what it does. Decades ago, the state passed a law banning nudity in places unless designated for nudity. Russ Cahill, who was then-director of the Department, began studying where to put such places.

 The decision-making process caused enough controversy that Cahill determined he would not try to designate any nude areas at that time. But he also directed park personnel that they should not automatically write tickets to persons for merely appearing nude on park lands. Instead, personnel would only get involved when a member of the public made a complaint about the nudity and would simply ask the nude person(s) to dress. A citation would only be issued if the nude person refused to dress. (A subsequent court decision held that even if a person were asked to dress one day, it would not prohibit the person from returning to the location the next day to go nude again.)   

 AANR Team meets with the Department

Let’s now “fast forward” to about one year ago when the Department announced a ban on nudity at San Onofre beach. In response to the announcement, AANR Public Lands Liaison Steve Hubbard contacted the Department to inquire about the reasoning behind the ban and whether other lands managed by the Department were likely to face similar bans. As these discussions were taking place, NAC filed its San Onofre lawsuit.

 Rather than cease all communications with California, Steve Hubbard continued a dialog with the Department. In late fall of 2008, he arranged a meeting between himself, Executive Director Erich Schuttauf, Government Affairs Chair Alonzo Stevens, and the highest echelons of the Department. They included now-Deputy Director Tony Perez (then Chief Ranger/Acting Chief Ranger for both the northern and southern district), the Department’s General Counsel, and the Department’s liaison to the state legislature.  Prior to the meeting, all parties agreed that because San Onofre was in litigation, any discussion of that subject was off the table. One of the reasons the Department could even meet with AANR was the fact that we were not parties to the ongoing lawsuit.

 Since we couldn’t mention San Onofre, we talked about the future of nudity on all other public lands managed by the Department. Much of AANR’s presentation included reminders that the Cahill policy works very well. With some reluctance, the Department officials at the meeting had to agree and pledged not to deviate from using it in the future-with the exception of what might be the outcome at San Onofre. If you think as we do, your next inclination would be to ask for something in writing, and we did.

 Letter from Chief Perez

In months subsequent to the fall 2008 meeting, then-Chief Tony Perez prepared a letter to Steve Hubbard in which he and the Department reiterated their commitment to observing the Cahill Policy. Moreover, the letter expressed recognition of AANR and a clear willingness to work with AANR on a joint project on a place popular for clothing-optional use within the park system.

 There is tremendous cause to celebrate the letter from Chief Perez. It reaffirmed “Cahill over all” as a working policy that should be adhered to through the top leadership of the California Department of Parks and Recreation and was issued during a time of an intense legal struggle at San Onofre.

 Given the poisonous environment that AANR had to enter into negotiations, it is nothing short of amazing that the Department agreed to meet with any nudist group at all. The fact that officials were not only willing to meet but to reaffirm Cahill and reach out to the nudist community through AANR speaks volumes: AANR truly is the “credible voice of reason for nude recreation.”

 Additional success

Just a few months later, the true value of securing the Department’s commitment to Cahill was demonstrated when Department officials managing park land on the American River near Auburn, California, refused to ban nudity even after local community leaders drafted a resolution calling for such a ban. When these officials on the American River made a personal call to Steve Hubbard at the request of then-Chief Perez to express strong continuing support of Cahill, we legitimately took this as a sign that the Department was standing by its promises made to AANR and the nudist community.

 Why the deluge now?

In the past few weeks, some communications have tried to make much of the fact that the letter from Chief Perez to Steve Hubbard and AANR only voiced explicit support for Cahill within “remote” areas when it clearly applies to areas that are not remote. We will comment on several things that we find interesting about these attacks. First, we have to wonder aloud about their timing. The Bulletin carried news about AANR’s meetings with the Department months ago.

 Second, we find it interesting that those who were not present during any meetings between AANR and the Department would speculate that we had “ceded” to remoteness. Just as AANR is not in the position to voice why NAC and its lawyers filed its suit, or whether it will appeal an adverse ruling, how can those not present insinuate what was or was not said in meetings?

 At no time did AANR concede any point as to “where” Cahill applies. The reference to “remote areas” in Chief Perez’s letter appears to reflect the Department’s position at this time. Notably, while proffering that position Department officials have also agreed to partner with the nudist community in areas that clearly don’t fit a hard interpretation of the phrase “remote areas” either. Officials have asked to work together in areas such as Blacks Beach, for example, which is far from remote.

 AANR’s effort continues

We believe that whenever possible, working together internally as well as externally just makes sense. Litigation should only be entered into when all other avenues are closed. NAC has taken the position that the only thing that was saving nudists’ rights to be nude on public lands in California was their litigation. As recent events have shown, this is simply untrue. In fact, only the goodwill of the Department, and the commitments made to AANR on behalf of the nudist community, restrain the Department from an outright ban on nudity in ALL California parks.

 Where do we go from here?

We have repeatedly offered to bring various groups into a working partnership with AANR and the Department. These efforts have been rebuked time and time again, with the position being that we cannot and should not trust the parks department, and that anything short of designation is a waste of time. Yet Cahill, as it is currently being applied by California Parks, is working.

 Is it possible that the Department is disingenuous in its repeated offers to work with us? Certainly. However to date, they have been good to their word. Again, given NAC’s loss at the appellate court level, there is nothing but the Department’s goodwill and statements they have made to us that keeps it from dropping Cahill entirely.

 Finally, there is a clear positive side that will be felt far outside of the state of California from AANR’s effort. With the Department’s reaffirmation of Cahill in writing, multiple federal landed agencies are working with us toward establishing Cahill-like policies that will have the force of law elsewhere if these projects stay on track. These agencies have made it clear that the most persuasive argument for them has been California’s declaration of how well Cahill has worked for the last 30 years.