Dec 16

Write to Appeal Decision to Close Nisene Marks to Bikes

Following is a detailed history of the events up to today.

An earthshaking decision by California Superior Court Judge Judy Hersher was handed down on December 13, 2004, ordering cyclists out of Nisene Marks State Park, including the Aptos Creek Road. The judge wrote:

“Mountain biking is prohibited by the deed restrictions conveying the Dedicated Property to the State and the use of mountain biking cannot be authorized in the deed restricted portions of the Park.” (From the Court�s Ruling, Case No. 03CS01366, Dec. 13, 2004.)

Like the shock waves from the epicenter of 1989�s Loma Prieta earthquake did from deep within the Earth below Nisene Marks, the reverberations from this judgement will echo for a long time among the stately redwoods .

This decision overturns a new General Plan, with improved cycling opportunities, for the State Park that was ratified in 2003. Cycling groups are advocating that the California Department of Parks and Recreation defend their plan with an appeal and overturn this decision. Read on to see how you can help.Following is an outline of some points you can hit in your letters to the following people:

*John Laird
Assembly Member
State Capitol
P.O. Box 942849
Sacramento, CA 94249-0027
Tel: (916) 319-2027
Fax: (916) 319-2127
Email: Assemblymember.laird@assembly.ca.gov

*Abel Maldonado
State Senator
State Capitol
P.O. Box 942849
Phone: (916) 445-5843

*Ruth Coleman, Director
California Dept Of Parks & Rec
1416 9th St, Rm 1405
Sacramento, CA 95814
Email: info@parks.ca.gov

Tom Ward, Manager, Recreation
Calif Dept Of Parks & Rec
1416 9th St Room 1404-2
Sacramento, CA 95814
Email: TWARD@parks.ca.gov

David Vincent, Superintendent of the Santa Cruz District
Department of Parks and Recreation
Santa Cruz District
303 Big Trees Park Road
Felton, CA 95018
Email: dvinc@parks.ca.gov

– – – – –

I urge state parks to appeal the process because:

* The group who launched the suit represent a small but dedicated vocal minority who didn’t want to honor the collective and democratic public process of the general plan meetings.

* Having this suit succeed sends the message that activist judges can subvert the democratic process.

* The plaintiffs “Citizens for the Preservation of the Forest of Nisene Marks State Park” is a hiker only land use group and doesn’t really reflect the will of the community.

* The assumption that mountain bikers cause as much damage as horses is flawed. There are numerous studies that demonstrate that mountain bikers and hikers have the same impact on the environment. [ADD REFERENCES]

* Water running on poorly constructed trails leads to the erosion damage. Trails may be constructed to reduce the impact of environmental damage from water.

* The interpretation of the Nisene Marks deed is speculative and has no basis in legal fact. [FACT CHECK]

* The plaintiffs concession to allow bikes on fireroads but not on singletrack exposes the true agenda in which they do not wish to share the trails. The deed restriction and environmental impact issues are a ways to those means. [REFERENCES for Sandy Henn and Rich Apple]

* Banning bikes from the park – including fireroads – will upset the use patterns of Soquel Demonstration Forest – which is a remote park in the upper part of the mountains that allows mountain bikes on singletrack.

* The Nisene Marks deed did not explicitly ban bicycles from the park yet bicycles have been ridden on singletrack trails in the park since the turn of the century [FACT CHECK]

* The Nisene Marks deed restrictions are invalid. According to California law CVC 885.010 that discusses power of termination means that the deed restrictions of 1963 expired in 1993 since the restrictions were not renewed. [FACT CHECK]

* The CA State Parks [FACT CHECK] and the National Sierra Clubs national policy recognizes mountain biking as a legitimate users of many non-Wilderness back country trails. http://www.sierraclub.org/policy/conservation/mtnbike.asp

* Banning mountain bikes from the deeded 8,000 acres above the steel bridge will not mitigate trail conflict problems. Instead it will create more conflicts since mountain bikes will not be banned from the lower part of the park near the parking lots – which is where a large majority of the hikers use the trail. [FACT CHECK]

* The main concern issued by the plaintiffs is to reduce user conflicts on the single trail in the lower part of the park. If the general plan is allowed to proceed then a prospective plan could be to allow hiking only on trails near the parking lot and multi-use trails in the upper reaches of the park – which is visited by very few hikers and trail runners. This will separate the groups and reduce conflicts.

* Mountain biking is an activity which is associated with nature study and the appreciation and enjoyment of nature.

* Mountain bikers represent a large volunteer group who are willing to support and maintain the places they enjoy.

* Mountain bikers represent an environmental group who happen to be an active block of voters.


br />
The 10,000 acre Forest of Nisene Marks State Park has been officially shared with cyclists since 1989. This lovely redwood forest setting between Aptos and the Soquel Demonstration Forest became a State Park in 1963 by a generous 9,000 acre gift grant to the State. The remaining 1,000 acres were aquired piecemeal through the Sempervirens Fund and the Save the Redwoods League.

Cycling advocacy groups are resisting Judge Hersher�s decision. These principal groups are Mountain Bikers of Santa Cruz (MBOSC), International Mountain Bike Association (IMBA), Responsible Organized Mountain Pedalers (ROMP), and Santa Cruz Bicycle Industry Coalition (SCBIC).

A small group unwilling to share the trails with cyclists filed a suit against the California Department of Parks and Recreation earlier this year. They call themselves “Citizens for the Preservation of the Forest of Nisene Marks State Park” (Citizens4FNMSP), and are composed principally of two gentlemen, Sandy Henn and Rich Apple. In contention was the newly minted and approved General Plan for the park.

On March 11, 2001 the first public meeting to help create a new General Plan for the Park convened at Soquel High School. Thus began a process lasting nearly 2 years to forge a management plan for Nisene Marks. Many cyclists and representatives from advocacy groups attended the meetings and wrote letters. Cyclists outnumbered hikers by 3 to 1. In the end an equitable compromise was reached with the potential for a limited increase in mountain bike access to trails in the northwestern corner of the Park.

In retaliation, Citizens4FNMSP sued through the law firm of Wittwer & Parkin LLP claiming that the General Plan was invalid based upon their interpretation of the original grant deed, and alleged violations of the California Environmental Quality Act (CEQA) and an insufficient Environmental Impact Report (EIR).

“The lawsuit addresses the following: State Parks’ violation of the California Environment Quality Act (CEQA) � by deferring impacts analysis till after the development of a trail plan; a lack of biologic inventories to identify plants, animals and erosion-prone areas in need of special status protection; a lack of mitigation measures for conflicts associated with mountain bike use; failure to address damage incurred by illegal mountain bike use.

The lawsuit also addresses the State’s violation of the terms of the Marks’ grant deed and its “natural preserve” designation. State Parks has created a General Plan that ignores the deed’s stated intent � to preserve the park for activities respectful of its natural surroundings such as “camping, nature study, and hiking.” Instead, State Parks is proposing to manage the deeded portion of the park, not as a “natural preserve,” but as a recreation area where trails will be accessed by mountain bikes. These are trails that have been open only to pedestrian traffic for more than 40 years.” (From http://www.richapple.com/jan2004letter.html)

The Judge decided against cyclists. However, the State�s EIR and observation of CEQA was found satisfactory. Much of the decision may be attributed to Judge Hersher�s willingness to equate mountain biking with horse back riding.

According to a letter from the Director of California Department of Parks and Recreation (DPR, State Parks), Ruth Coleman, dated Nov. 23, 2004:

“The Department of Parks and recreation has recognized mountain biking as a legitimate recreational activity at this particular State Park, as demonstrated by the recently approved General Plan. However, the Superior Court has concluded that the deed restrictions on this property prohibit mountain biking.

The next step in this process would be an appeal of that judgement and that would be our preference. However, in deciding that course of action, we must first analyze the legal strength of our position to determine the likelihood of a successful outcome.”

The State has 60 days in which to file for an appeal. If the State decides to contest the decision, one of the key arguments may be to challenge the legality of the covenant deed restrictions (which precluded horses). According to David Baskin of the Mountain Bikers of Santa Cruz (MBOSC):

“In 1982 the California legislature enacted a statutory scheme titled POWERS OF TERMINATION. By statute, all of the previously existing common law rights of reversion (such as the ones stated in the Nisene Marks deeds), were consolidated, re-named as Powers of Termination, and subject to the statutes for purposes of interpretation and enforcement. Of paramount significance in the Nisene Marks case is Civil Code Section 885.030, which provides that powers of termination expire 30 years after recording of the instrument which created the interest, unless extended by the recording of a proper notice, prior to the expiration of the power. No such notices of extension have been recorded by the Donors or their successor in interest, the Nature Conservancy. Thus the Powers of Termination in the 1963 and 1965 deeds expired without further action in 1993 and 1995 respectively, unless a proper notice of extension was recorded by the holder of the power.”

According to Michael Kelley, a co-founder of IMBA:

“On appeal, the court generally deals with the record or facts as they are. You can’t submit new evidence. The issue is usually whether the trial judge abused her discretion in making the decision. Instead, the appeal will doubtless concentrate on the incorrect ruling regarding the basic enforceability of the deed restriction. In our view, the deed restriction was no longer valid, thus the judge never should have interpreted it. “

Cyclists must take steps to support the General Plan and a future with sustainable trail cycling in Nisene Marks. Since September there has been an ongoing letter writing campaign directed at State Parks supporting an appeal. This has been effective as, according to Santa Cruz District Superintendent David Vincent, “Letters are running 10-1 against the bicycle restrictions.” (Santa Cruz Sentinel, Dec. 9, 2004)

Concerned cyclists shoud continue to write. We are widening our targets to include State Assembly representatives and the Governor�s office. Due to space limitations their contact information is omitted from this article. For addresses and writing suggestions see mbosc.org, imba.com, or romp.org.

Another thing we can do is show our support by helping build a contingency fund through donations earmarked for IMBA�s Nisene Marks Legal Defense Fund. To help fight the legal battle to keep trails open at Nisene Marks State Park Fox Racing Shox of Watsonville is raising money by selling “Free the Trail” T-shirts for $10 each. 100 percent of the proceeds go to IMBA and Mountain Bikers of Santa Cruz. To buy a “Free the Trails” T-shirt see www.foxracingshox.com/ftt.

The Santa Cruz Cycling Club will hold a cyclocross race on Sunday, January 16, 2005 , at the Watsonville fairgrounds. (For details on the web see: http://www.cyclocross.cx/) There will be a special team relay category at 12 noon. Four persons per team, $40 entry per team, each rider does one lap. All proceeds from this category will go to the Nisene Marks Legal Defense Fund. Perhaps the ACTC would like to participate.

The State has 60 days in which to file for an appeal, and 180 days in which to write the court of its plans to implement the court order and modify the General Plan.

In the most basic terms, we stand to lose access to the only graded dirt road to the coast in this area, the historic Aptos Creek Rd. Please take the time to contest this unpopular decision, and show your support of an appeal in writing to the Director State Parks