Newsletter Winter 2005
General Plan Progress
Most of you probably already know about the lawsuit that threatens to ban bicycles from Nisene Marks. Here is a summary of the situation to date.
Background:
The Forest of Nisene Marks Start Park was created in 1963, when the children of Nisene Marks donated about 9,000 acres to the state for the purpose of creating a park. In general, the deeds granting the land to the state require that the property be kept in its natural state. Horseback riding is explicitly prohibited, and activity on most of the rest of the land is limited to camping, nature study, hiking, and associated activities. Bicycles are not mentioned in the deeds.
The deeds state that if the terms of the deeds are violated, the property will revert to the Donors or their heirs. The Nisene family later assigned the reversionary interest to the Nature Conservancy, which meant that if the terms of the deed were violated, the property would revert to the Nature Conservancy.
Since the park was created, with help from the Save the Redwoods league and others, about 1,000 acres of additional land has been added to Nisene Marks. The additional land is primarily south of the original land, downstream in the Aptos Creek canyon, between the original park and Aptos village. On Aptos Creek fire road, the land donated by the Marks family (the “Marks Family Property”) begins just above the Steel Bridge.
Since the mid-80s, State Parks has limited bicycling on the Marks Family Property to the fire roads, including Aptos Creek Rd, Hinckley Fire Rd, and Buzzard Lagoon Rd. Bicycle use has been permitted on most of the trails and roads below the Steel Bridge, on the property that is not Marks Family Property.
The General Plan:
In 2003, after an extended series of public hearings, State Parks released the new General Plan for Nisene Marks. The General Plan does not include a specific trails plan, but it does allow for the possibility of multi-use trails throughout the park, including the Marks Family Property. Any trail development, including significant enhancement of existing trails, or creation of new trails, would have to pass a CEQA (California Environmental Quality Act) review, and would thus be subject to public scrutiny before development could begin.
The Lawsuit:
Shortly after the General Plan was approved, a lawsuit was filed asking that the court block implementation of the General Plan unless it banned bicycles from the Park completely. The plaintiffs in the lawsuit are an organization named Citizens for the Preservation of The Forest of Nisene Marks State Park and an individual named Sandy Henn. Their lawsuit claimed that:
- The use of bicycles in the Marks Family Property violates the terms of the deeds
- The General Plan violates California Public Resources Code
- The General Plan violates CEQA because:
- State Parks did not respond to comments made by the plaintiffs during the General
- Plan public hearing process
- State Parks only laid out guidelines for the development of trails in the future, but did not submit specific trail plans
- State Parks failed to provide adequate mitigation measures
On November 12, Judge Judy Hersher issued her ruling on the lawsuit. She agreed with the plaintiffs that bicycles violated the Marks deeds, and dismissed all of the other claims in the suit.
Where it stands:
If Judge Hersher’s decision is let stand as written (i.e., is not appealed), then State Parks would be required to modify the General Plan to ban bicycles from all of the Marks Family Property, including the fire roads. State Parks has 60 days from the delivery of the Notice of Entry of Judgement to decide whether to appeal the lawsuit. As of the end of January, the Notice had not been delivered. If State Parks appeals the suit, then an Appellate Court would review the judge’s decision.
There are good legal grounds for appeal. First, it is State Parks’ position, and the position of the General Plan that bike riding in the park is in fact an activity associated with camping and nature study, and thus is not a violation of the terms of the deeds. Even though Judge Hersher disagrees with State Parks, an Appellate Court might agree with Parks, and with the General Plan.
Second, there is a reasonable chance that the reversionary clause in the deeds is not legally enforceable. Here’s how David Baskin, who is the Treasurer of Mountain Bikers of Santa Cruz and a lawyer who has closely followed the lawsuit describes this situation:
“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.”
In lay terms, that means that because the Nature Conservancy failed to extend their power of termination, their right to terminate the deed expired. Civil Code Section 885.060 proceeds to state that if the power of termination expires, the restrictions that would have triggered the termination (i.e., the reversion to the Nature Conservancy) are no longer enforceable.
State Parks has clearly and consistently exhibited the intention to honor the Marks family’s desires as expressed in the deeds. Even if the reversionary clauses, and the restrictions that would have triggered them, are obsolete because of a legal technicality, it is my belief that State Parks would continue to make thoughtful and careful planning decisions about bicycle and trail use in the park, just as the Marks family desired. Overturning Judge Hersher’s decision would not mean that bike-riding would automatically become legal on any of the single track above the Steel Bridge. It would only mean that State Parks could continue with the implementation of the General Plan, as it was developed in the 3-year planning process. State Parks could propose new multi-use trails in the Marks Family Property, but any such trails would still have to pass the rigorous CEQA review process.
In November, the Advocates Board met to discuss what position, if any, the Board should take regarding the appeal. It was decided that a statement would be drafted expressing the Board’s view that we support the General Plan as written, and approved by the Parks Commission, and encourage State Parks to appeal the verdict. In January, this statement was transmitted to Dave Vincent, Ruth Coleman (Director, California Dept. of Parks and Recreation), and Tom Ward (Manager, California Dept. of Parks and Recreation).
What to do:
Express your opinion. If you believe that the General Plan should be allowed to move forward, with bikes allowed on the fire roads, and with the possibility that multi-use or bike trails could be proposed in the future, then let State Parks and the other decision makers know how you feel, and ask them to appeal the decision. If you believe that bikes should be permanently banned from all of the Marks Family Property, including the fire roads, then let State Parks know that you’d like them not to appeal.
-Geoff Alexander
Contact info:
David Vincent, Superintendent of the Santa Cruz District
Department of Parks and Recreation
Santa Cruz District
303 Big Trees Park Road
Felton, CA 95018
dvinc@parks.ca.gov
Ruth Coleman, Director
Department of Parks and Recreation
1416 9th St, Rm 1405
Sacramento, CA 95814
info@parks.ca.gov
Tom Ward, Manager
Department of Parks and Recreation
1416 9th St Room 1404-2
Sacramento, CA 95814
TWARD@parks.ca.gov