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SYLVANE v. WHELAN

February 4, 1981

Allen SYLVANE et al., Plaintiffs,
v.
William WHELAN, Director of the National Park Service; Cecil D. Andrus, Secretary, Department of the Interior; and the United States Department of the Interior, Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

With increasing regularity federal courts are being criticized by groups of irate citizens and/or by the media for acting or failing to act on problems which are within the province of the legislative and/or executive branches of our government but not within our jurisdiction. This case is no exception. Plaintiffs have come to us with a demand that we abate the alleged nuisance of nude bathing and sunning at Jacob Riis Park, part of the Gateway National Recreation Area located in the county of Queens, New York, although neither the Congress of the United States nor the Secretary of the Interior has enacted a law or promulgated a rule or regulation against the same.

 It is, of course, not within the province of this Court to enact laws or to promulgate rules or regulations except as the latter may pertain to or affect our own courts and procedures.

 With this preview and keeping in mind that there are at present no Federal or State laws or rules or regulations prohibiting nude sunbathing or nude bathing at Riis Park, *fn1" perhaps the balance of this opinion may be better understood.

 I

 Plaintiffs are residents of several communities near or adjacent to Riis Park and represent various community organizations located therein. On July 1 and July 2, 1980, a hearing was held on plaintiffs' motion for a preliminary injunction. At that time serious doubts as to the jurisdiction of this Court were raised. The motion for a preliminary injunction was denied, with the understanding that the issue of subject matter jurisdiction remained open. The matter is now before the Court on defendants' motion pursuant to Fed.R.Civ.P. 12(b) to dismiss the complaint for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim on which relief may be granted. For the reasons stated below, we find that this Court lacks subject matter jurisdiction over this claim, and that the complaint must be dismissed.

 Riis Park is part of the Gateway National Recreation Area. Gateway was created as a unit of the National Park Service in 1974, pursuant to Public Law 92-592, 86 Stat. 1308, 16 U.S.C. § 460cc (1972). Riis Park has long been a popular public beach with adjacent recreational facilities, owned prior to the creation of Gateway by the City of New York. The beach is divided by wooden jetties into units known as "bays". Various segments of the population have traditionally occupied certain bays in Riis Park; blacks, whites, teenagers, families, etc., each have established certain bays as their "domain". Bay 1 has long been frequented by members of the gay community and by nude sunbathers and nude bathers.

 Between 1974 and August 1980, the State of New York had not ceded concurrent jurisdiction to the United States at Gateway. During that period of time the United States Park Service could only enforce federal law at Gateway. See Paul v. United States, 371 U.S. 245, 83 S. Ct. 426, 9 L. Ed. 2d 292 (1963). In an effort to control nudity at Riis Park, arrests were at times made by the Park Police under the federal disorderly conduct regulation, 36 C.F.R. 2.7. *fn2" Since that statute requires a showing of intent "to cause public inconvenience, annoyance or harm," prosecution of nude sunbathers and bathers merely for nudity in an area traditionally used as a nude beach was difficult. In view of this, the Park Service promulgated a regulation, 36 C.F.R. § 7.29, worded the same as the existing New York State Law, N.Y.Penal Code § 245.00 (McKinney 1980). *fn3" However, even that regulation requires proof of lewd, lascivious or obscene behavior, as opposed to mere nudity. It is this continued absence of Federal or State law prohibiting nude bathing that led to the instant lawsuit. *fn4"

 In the original posture of this case plaintiffs sought damages for lost property values they believed they sustained as a result of the activities at Riis Park, and also sought an order from this Court requiring the defendant Secretary of the Interior to promulgate regulations prohibiting nude bathing at Riis Park.

 Following the hearing on the preliminary injunction, several changes both in the law and in this litigation arose which substantially affect this Court's jurisdiction to entertain this suit. First, effective August 4, 1980 the State of New York has ceded to the United States concurrent jurisdiction for law enforcement services in Gateway, reserving to the State complete jurisdiction over all matters other than law enforcement. See Certificate of Cession of Concurrent Jurisdiction, May 15, 1980, James C. Shea, Comm'r of General Services, at p. 3. Second, plaintiffs, perhaps realizing that neither this Court nor any other has the power to order the promulgation of regulations or legislation, have withdrawn both that prayer for relief and their claim for monetary damages, and instead seek an injunction to abate what they consider to be a public nuisance.

 II

 The only paragraph in the complaint that approaches a jurisdictional allegation is that "this action involves a controversy between the plaintiffs, as citizens of the United States and the defendants as representatives of the United States Government." Complaint, para 3. In the course of the hearing and in their brief, plaintiffs have posited jurisdiction variously on 28 U.S.C. § 1331(a), on the Federal Tort Claims Act, 28 U.S.C. § 1346(b), § 2674 et seq., and on the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

 At the outset, we may dispose of the more patently inapplicable bases of jurisdiction. The Tort Claims Act allows recovery of money damages only and affords no right to injunctive relief against the federal government. 28 U.S.C. § 1346(b). Even assuming all the requisites for suit under the Tort Claims Act have been met (which is not the case because, inter alia, plaintiffs have never filed a notice of claim), the amendment in plaintiffs' prayer for relief proves fatal to a claim of jurisdiction based on that statute. Nor can the Administrative Procedure Act without more support jurisdiction in this case. The Supreme Court has held that the APA is not an independent source ...


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