So just what is happening and what does it mean for nude sunbathers wishing to use the beach at Kaloko-Honokohau National Historical Park? In short the Supreme Court overturned the conviction of four men who were nude on Polo beach on Oahu in October 1998. The Court found that the men were not intentional in trying to affront someone with their genitals and that they did not direct the activity toward a specific individual. (Click here for the detailed account.) In short it is clear that the HRS 707-734 Indecent Exposure does not make nude sunbathing illegal. Indeed in a concurring opinion another Justice went on to say that such an interpretation is totally consistent with the intent of the legislature. In other words nude sunbathing is not currently illegal in Hawaii by statute or by this Justice's interpretation of the will of the legislature.
So what does the National Park Service do now? They cannot arrest nude bathers under HRS 707-734 Indecent Exposure. But since they distorted and misrepresented the facts to the Congress they now have a rule on the books that prohibits nudity in the park. If you are nude in the park you can be cited under Federal statutes.
Interestingly, this exactly parallels the situation on Maui and the popular nude beach at Makena. The beach is adjacent to the Makena State Park which prohibits nudity. Note that the beach is adjacent. It touches and is continuous with the park but is technically not part of the park. The strip of land around all the Hawaiian Islands is under the jurisdiction of the Department of Land and Natural Resources in a land category distinctly different than the state park. As such the state park ordinance is not enforceable on the beach.
The astute reader will note this is precisely the situation at Kaloko-Honokohau National Historical Park. The beach is not subject to the National Park Regulations.
So nude bathing is legal at Kaloko-Honokohau. That is not to say that
arrest may happen. The Park Service will try and impose its will on the
people until the people that make the decisions are replaced with others
that understand what is and what is not legal regarding nude sun and ocean
What is happening at Honokohau, an established nude beach for some sixty years?
Basically the problem is a misunderstanding on the part of park Superintendent Francis Kuailani regarding the Kaloko-Honokohau National Historical Park and his authority as superintendent.
Mr. Kuailani testified June 25, 1998 the nude human body is offensive to many native Hawaiians and to their culture. When asked about just the exposure of a woman's breast, he asserted that to was offensive.
Mr. Kuailani testified that prohibiting nude bathing was not a controversial issue. It's prohibition was clearly the right thing to do given the attitude of local Hawaiians. Further it made no difference that the park was not developed and the principle users of the park at the current time are the nude users. (Park Service figures for 1991 were 46,790 with three-quarters of the total -- beach use. page 125 General Management Plan) Mr. Kuailani asserted that driving three quarters of the users from the park would not affect use levels significantly.
Mr. Kuailani testified that he had waited for the congressional delegation to do something about nudity in the park. When they did not succeed in getting legislation passed he conclude that it was up to him to get the matter back on track.
Interesting, the NPS issued a Special Directive 91-3 that address the subject: Information on Public Nudity. The directive issued May 29, 1991 makes clear that "There is no Federal regulation prohibiting nudity that applies to all units of the NPS. Only Cape Cod National Seashore has a special regulation in effect that addresses such activity."
Mr. Kuailani apparently believed that he had the authority to prohibit nudity in the park, and he did in December of 1996.
In general park superintendents do have the authority to "designate areas for a specific use or activity, or impose conditions or restrictions on a use or activity" under the provisions of the Code of Federal Regulations section 1.5.
However section 1.5 also makes clear that the superintendent does not have the authority if the proposed changes in the use of the park "will result in a significant alteration in the public use pattern of the park area" or if the matter "is of a highly controversial nature" without first publishing as rule making in the Federal Register.
It was clear from Mr. Kuailani's testimony that he sincerely believed that his order intending to eliminate nude recreation was not in contradiction to section 1.5. It was not clear from his testimony who initiated the publication of the rule within the Federal Register after the fact. (An opportunity to respond to the rule closed the Friday before the hearing of June 25, 1998 where Mr. Kuailani testified.) Clearly someone associated with Mr. Kuailani or the National Park Service recognized that the prohibition of nude recreation within the park was highly controversial and would dramatically change the use figures by prohibiting 75% of the established use of the park.
The change in park visitation will have little affect on Mr. Kuailani and his ranger staff. They get paid the same whether they have to assist one visitor or fifty thousand a year. Regrettably that is not the case on the surrounding communities that derive significant portions of their income from the tourist. Park Service data clearly demonstrates that a significant number of visitors are from off island. The island of Hawaii continues to experience a decline in tourism while neighbor Maui has experienced a modest increase. (Dr. Leisure rates Little Beach on Maui as the number one on his top ten list of nude beaches. The reader is encouraged to draw his/her own conclusions regarding the impact of that beach on the overall travel statistics.)
It is clear that whatever the results of publishing the proposed rule in the Federal Register the results will be interpreted to prohibit nudity in the park. (The park superintendent and his staff are the ones who will review the response to the published rule and make the final decision.)
Furthermore the judge stated that "Hawaii law prohibits a person in a public place from committing any lewd act which is likely to be observed by others who would be affronted or alarmed. HAW. REV. STAT. 712-1217. Sunbathing in the nude in a public place where the sunbather is likely to be observed by others who would be affronted or alarmed is a "lewd act". State v. Bull, 597 P.2d 10,11 (1979)."
Dr. Leisure's Opinion: Magistrate Judge Yamashita is out of touch with the facts in this case and contemporary thought in Hawaii regarding nude sunbathing at a beach traditionally know for such activity. First the change in the use pattern of the park is clearly significant when nude use is prohibited. The figures presented by the National Park Service make this a given. Secondly the judge is out of step with what is controversial and what is not. Nude sunbathing in and off itself has become rather non controversial and is generally well accepted at particular locations throughout the islands. It is the prohibition of nude sunbathing that is the issue which is controversial.
It is with a great deal of irony that Judge Yamashita cites State v. Bull (1979) as further justification for his action by suggesting that this case supports the notion that Hawaii State Law Prohibits nude sunbathing. The Bull case involves bathers at Little Beach Maui who were convicted of open lewdness in 1979 for sunbathing nude. Today of course Little Beach is a popular nude beach promoted on the visitor channel and no mention is made of any potential legal problem. How can this be? The answer stems from the date of the incident, 1979. This was an interpretation of the law under the old Hawaiian Statutes, not the current Haw. Rev. Stat. 712-1217. In most circles the current thinking is that sunbathing in a spot traditionally known for such activity could not rise to the level of causing affront and alarm required by the statute. Indeed, there have been no arrest for nude sunbathing at Little Beach for many, many years.
Dr. Leisure understands that the decision by Judge Yamashita will be appealed to the District Judge. Based on the facts and the current trends this decision should be reversed.
To the extent this situation parallels a superintendents efforts to
thwart nude sunbathing at Playalinda National Seashore it will be interesting
to see what happens. Dr. Leisure recently learned that Wendall Simpson
the superintendent at the time of the controversy accepted a transfer out
of the Seashore for another position in the Park Service. A short time
later it is reported that he left the NPS entirely. In my consultations
with the National Park Service it has become clear that nude sunbathing
has become a very popular phenomena that is sweeping the country.
Dr. Leisure® P.O. Box 1137, Kihei, Maui, HI 96753
World Wide Web: http://www.drleisure.com/
Entire contents are copyright by Dr. George R. Harker 1997, 1998, 1999,