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
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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