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   Conservation Issues of the Ventana Chapter | santa cruz county

Court limits mountain biking in Nisene Marks because of deed restrictions

On December 9, 2004, Superior Court Judge Judy Holzer Hersher agreed with Citizens for the Preservation of the Forest of Nisene Marks State Park by ruling that, "mountain biking is prohibited by deed restrictions conveying the Dedicated Property (in the Forest of Nisene Marks State Park) to the State and that the use of mountain biking cannot be authorized in the deed restricted portions of the Park."

After nearly four years of public meetings, controversial preliminary draft plans, and a flawed General Plan, a lawsuit was filed against State Parks in April 2003 by Citizens for the Preservation of the Forest of Nisene Marks State Park. The lawsuit was based on language in the Marks family deed and the family's intention that the park remain largely undeveloped as a natural preserve, offering a place of refuge and solitude for hikers in an essentially primitive redwood landscape.

The Court agreed with Citizens and based its findings on the language of the Marks family deeds, the family's concerns regarding erosion, the family's wishes that any use be limited to hiking, camping, nature study and associated activities, and the fact that the family explicitly banned horses. The ban on horses was due to concern that the horses might cause damage to the hiking trails, particularly because of the Park's "erodible soils." State Parks enforces the ban on horses.

Judge Hersher stated that though there was no sport of mountain biking at the time the property was transferred to State Parks, "that mountain biking is at least analogous to horseback riding in terms of the damage that it does to the environment." This view was shared by many. Public written comments on the general plan were 3-to-1 opposing the expansion of bike trails in the Park.

Sierra Club role

During the General Plan process, the Santa Cruz Regional Group of the Sierra Club submitted written and oral comments to State Parks. The Santa Cruz Group focused on the lack of protection for natural resources in the Park's Plan. The Club asserted that the level of analysis in the plan was insufficient to determine the impacts of designated uses and development on habitat and species within the park.

The General Plan did not contain a comprehensive biological inventory of the park. Without such an inventory, it would be impossible to determine the need for special designations such as natural preserves. Likewise, there was no modern carrying capacity analysis nor cumulative impact analysis to determine how multiple uses proposed for the Park would effect natural resources. In what was viewed as an obvious attempt to avoid the issue of whether, or where, mountain bikes would be allowed on trails above the steel bridge, the General Plan did not contain a trail plan. The Sierra Club further asserted that the intention of the Marks family to keep the property in a natural state should be honored.

Ultimately, the Court based its findings on the language of the Marks deeds: ". . . the family intended the Property to remain largely undeveloped" and ". . . that any development of the property that occurs shall be in keeping with the natural surroundings," that ". . . given the grantors' emphasis on including only those activities associated with camping, nature study, and hiking, and the exclusion of all activities which would result in a substantial negative impact or erosion of trails, mountain biking is not an 'associated activity' contemplated by the grantors. Accordingly, the Court interprets the language of the deeds to prohibit mountain biking within the deed restricted portions of the Park."

The law requires such deed restrictions on land donated to public use to be strictly construed. For this reason, it is impermissible to read into a deed a use that did not exist when the land was donated and which is not associated with hiking, camping or nature study.

There are critics of the court ruling. Some see it as an overall condemnation of mountain bike use in State Parks, which, of course, it is not. Critics of the ruling might want to ask themselves how they would feel if they donated 9,000 acres to the State for a particular use and with certain restrictions, and then the State simply ignored their wishes. It is important that donors' wishes be followed so that other donors are comfortable and encouraged also to donate land.


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