As many may know, while State Parks believed that the trial court erred in both it’s construction of the deed and in enforcing the expired deed restrictions, State Parks also did not want to be in the position on appeal of claiming that the deed restriction was unenforceable. SP was concerned that it would cause prospective donors to be concerned that State Parks would look for legal technicalities to avoid restrictions attached to gifts, with the result that donors might be less likely to donate land for parks.

In order to avoid an appeal, the parties entered into a settlement with which they were mutually satisfied. The court approved it since both parties were willing to live with it. The court had no independent interest in enforcing the deed restriction, and if the parties achieved a compromise which would avoid further litigation on appeal, the court will usually approve it unless there is a public policy reason not to do so.

State Parks wanted to open single track in Nisene for us. The Plaintiffs in the Nisene case put a bunch of information in the administrative record during the general plan process saying that mountain biking was like equestrian use in terms of its erosion impact on trails. Neither State Parks nor us put adequate information into the administrative record during the general plan process to rebut this, with the result that the trial court found that mountain bikes were more like horses in their impact on trails and that since the donors banned horses, they would have intended to ban bikes too.

The lesson for all of us in the cycling community is the importance of being involved in the process at every stage in an active and competent way. The good part is that the access that has been there for years will continue.

We would like ike to thank organizations in the mountain biking community like IMBA, ROMP, Team Wrong Way and Vello Bella and the local bike industry like Fox Racing Shox, Specialized, Santa Cruz Bicycles and the Santa Cruz Bicycle Industry Coalition for helping us in this cause. We would also like to thank the hundreds if not thousands of individual mountain bikers who supported us by writing letters, signing petitions and buying T-shirts.

Finally, we would especially like to thank David Green Baskin on behalf of everyone in MBOSC for the amazing job he has done in tracking this issue. You are an excellent spokesperson on behalf of mountain bikers in Santa Cruz county. You are an amazing asset to our community and we are proud and honored to have you speak for us.

We should all be thankful to all the government folks who have graciously met with us, kept us informed of the status of the case, and are giving due consideration to the impact that this decision will have on Santa Cruz County cyclists if it is not reversed on appeal.

In the meantime, please write to your land managers and political representatives and urge them to support the appeal by State Parks.

There has been a misconception that mountain biking is currently illegal in Nisene Marks. This is not true. In fact, the status of biking in the park has not changed in Nisene Marks since the legal decision notice has not yet become effective.

When the legal decision becomes effective, State Parks has 180 days to bring its general plan into compliance and to stop biking within the affected areas, which is the portion of the park above the steel bridge. However, if State Parks Appeals the legal decision, then it will not go into effect pending the appeal, a delay of possibly 1-2 years. If the appeal is successful, then the legal decision will be reversed and State Parks will be able to proceed with its plan to expand mountain biking
within the park.

The legal ruling only bans bikes from the deeded land north of the steel bridge, so all the multi-use trails south of the steel bridge will not be affected.

This could still be an opportunity to open new trails in Nisene Marks. If the legal decision becomes effective and bikes are banned from the deeded areas north of the steel bridge MBOSC will be urging State Parks to expand biking access on the trails south of the steel bridge.

For the time being, there has been no change in the rules and everyone should enjoy the park as we have in the past.

I just got back from the MBOSC meeting. There was a strong representation from various groups like:

• Stewards of Soquel Forest
• Responsible Organized Mountain Pedalers (ROMP)
• The Advocates of Nisene Marks
• Santa Cruz Bicycle Industry Coalition (SCBIC)
• Ken and Gabrielle Adelman
• Fox Racing Shox
• Santa Cruz Bicycles

Judge Hersher’s ruling was issued last Thursday and David Baskin used this as the focus of the discussion. The ruling is not good news for mountain bikers but it was pretty much what we expected. The summary is:

In conclusion, the Court finds that:

1. 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;
2. State Parks has abused its discretion in adopting the General Plan
   to the extent the General Plan identifies mountain bikers as legitimate users in the deed restricted portions of the Park. A peremptory writ of mandate shall issue directing State Parks to set aside its decision adopting the General Plan to the extent the General Plan designates certain areas within the Dedicated Property where mountain biking may be allowed. State Parks shall refrain from implementing the General Plan until State Parks has reconsidered its interpretation of the deeds in light of this Court's ruling and revised its General Plan accordingly. State Parks shall file a return to the peremptory writ of mandate within 180 days describing what steps State Parks has taken to comply with the writ.
3. Petitioners have failed to establish that the General Plan fails to comply with Public Resources Code section 5002.2 and 14 C.C.R. 4332; and
4. Petitioners have failed to establish that State Parks violated CEQA;
5. Petitioners shall be awarded their costs of suit upon appropriate application; and
6. The Court shall retain jurisdiction over this proceeding until the court has determined that State Parks has complied with this decision.

Petitioners are directed to prepare a formal order, attaching the Court's ruling as an exhibit, and a judgment and writ of mandate consistent with the ruling; submit them to opposing counsel for approval as to form; and thereafter submit them to the Court for signature and entry of judgment in accordance with Rule of Court 391.

SO ORDERED.

What can we do as a user group?

The most important thing now is to urge State Parks to file an appeal. They have 60 days to do this. Use your own words but at the very least you can just mention ask them to file an appeal

It's not enough that we just contact Dave Vincent and Ruth Coleman but we should also contact local legistators John Laird and Abel Maldonado. They should be informed that their constituency wants this to happen, and that we want them to let State Parks know that they support appealing this ruling. While you are writting your letters or email, you should also copy Governor Arnold Schwarzenegger and let his staff know that this is an important issue to you.

There seems to be quite a lot of momentum and activity surrounding the Nisene Marks (pending) ruling against mountain bikes. I'd just like to summarize some of the activity so far.

The last hearing in the matter was on November 19. Nothing has changed (as of a few days ago.) The judge is still trying to sort out how her ruling will affect the Park General Plan and the public's right to know of the change. The final ruling should come down any moment. When that happens, Tom Ward and State Park attorneys will meet with Ruth to decide their legal and political options.

Gary Sprung - senior national policy adviser from IMBA has formally written a letter to Dave Vincent, Ruth Coleman and Tom Ward urging them to appeal the ruling banning bikes in Nisene Marks. His well written letter summarizes the representational reach of IMBA, mountain bike participation in California (5.2 M participants, $2B/year to the California economy), perceived user conflict and comments about the interpretation of the Nisene Marks deed.

Gary also included a really informative paper summarizing the impacts of mountain biking on the environment when compared to other forms of trail travel. The paper concludes that mountain biking doesn't cause any more environmental impact than hiking.

IMBA also released an action alert on the Nisene Marks issue which is accessible from their front page.

Elayna Caldwell-Grim a marketing manager at Fox Racing Shox is working on the Free the trail campaign. Fox is selling T-shirts and the proceeds will go to a legal defense fund for MBOSC and IMBA to help with the appeal. T-shirts are available at local bike shops or bought online at: http://www.free-the-trail.org. Fox also includes a letter with each T-shirt that you can sign and mail to David Vincent (be sure to include Ruth Coleman and Tom Ward).

Santa Cruz County Cycling Club will hold a cyclocross race on Sunday January 16th, 2005, at the
Watsonville fairgrounds. 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 a legal defense fund for Nisene Marks.

Finally, at the next MBOSC meeting on Monday December 13, 2004 7 pm at Seabright Brewery we will be discussing the Nisene issue. I'll send an agenda later but please mark that date in your calendar. Hopefully by then we may know if State Parks has filed an appeal - they have 60 days. If the appeal is filed then we would need to figure out a strategy for the next phase which probably includes filing an amicus brief and may include fund raising for the legal battle.

The best course of action for us as a user group is to write to Ruth Coleman, Tom Ward and David Vincent of State Parks to appeal the ruling. If they don't appeal then all this activity is moot and biking is banned in Nisene. Period.

We still have recourse to ensure that biking remains legal in Nisene. If it does then State Parks can implement their general plan - which includes new multi-use trails.

Many of you may be saying: "So what if biking is banned? The riding at Nisene sucks. It's just fireroads". That may be true now but the general plan allows for the development of additional trails - singletrack - which would be open to bikes, and possibly open existing trails as well.

The fight for Nisene Marks is an investment in future trail systems in northern California. This is a marathon, not a sprint.

Thanks for your time.

Mark Davidson
President, MBOSC

If you want to see mountain biking remain legal in Nisene Marks then there are several things you can do.

1. Contact the State Parks representatives listed below and urge them to appeal the Nisene Marks ruling.
   This is the most important action that you can do. If State Parks will not or cannot appeal the ruling then the ruling stands and bikes will be been banned from Nisene Marks.

   If they decide to appeal then we may need help with fund raising efforts to pay for the legal fees. If the ruling is successfully appealed then State Parks can proceed with the general plan and develop a trail system which includes bikes. However, before we get trails, we need letters to State Parks urging them to file an appeal.
   
   

2. Buy T-shirt from Fox racing under the Free the Trail program.
   All money raised from this program will go towards a legal defense fund for the appeal. Currently, this money will be held in an account pending the decision to appeal. T-shirts can be found in some local bike shops like Another Bike Shop, Trailhead Cyclery and Family Cycling Center.
   
   
3. Attend the MBOSC meeting on Monday December 13, 2004 7 PM at Seabright Brewery.
   David Baskin will give an update and background on the legal proceedings so far. People who are interested in this issue are encouraged to attend.

Many of you may be saying "So what? the riding at Nisene sucks. It's just fireroads right now". That may be true now but the general plan allows for the development of additional trails, singletrack, which would be open to bikes, and possibly open existing trails as well.

The fight for Nisene Marks is an investment in the future trail systems in the south county.

In 2003, after a lengthy public process, the California Department of Parks and Recreation adopted a new general plan for Nisene Marks. One of the components of the plan provided for an expanded trail network in the park, which would allow for mountain biking on singletrack in the park, either on new or existing trails, the exact locations to be determined. Which trails might be open to biking was left for further action as the specific trails plan was developed.

Shortly after adoption of the plan, a group called citizens for the preservation of the Forest of Nisene Marks State Park and an individual named Sandy Henn filed a lawsuit which was intended to stop State Parks from implementing that portion of the General Plan which would allow mountain bikes in the park.

In September, 2004, Judge Hersher of the Sacramento Superior Court issued an Order finding that State Parks had failed to consider and act in compliance with the intent of the donors by allowing mountain biking within the portion of the park granted by the relevant grant deeds. The judge rejected the numerous arguments submitted by State Parks, including that the deed restrictions were unenforceable as a matter of law. The Order prohibited State Parks from implementing the General Plan pending a final ruling by the court on the impact of the court's ruling on the General Plan.

The case is set for further hearing on November 19, 2004, at which time the court is expected to issue its ruling. Once this ruling is issued, State Parks will be forced change the General Plan and to prohibit all mountain biking in that portion of Nisene Marks covered by the family deeds. This will essentially close the park to biking, and close the fire road link to Soquel Demonstration Forest to bikers.

Mountain Bikers of Santa Cruz and other concerned individuals are urging State Parks to appeal this ruling. We believe that the Court of Appeals will enforce California's statutes, find the power of termination and related restriction to have expired, and therefore reverse Judge Hersher's decision. If successful on appeal, State Parks will be allowed to proceed with its General Plan and allow mountain biking in Nisene Marks on fire roads and on appropriate single track. The importance of this appeal cannot be over emphasized.

It is important that we let the folks at State Parks know that we want them to appeal Judge Hersher's ruling. You can write letters or e-mail:

Ruth Coleman, Director
California Dept Of Parks & Rec
1416 9th St, Rm 1405
Sacramento, CA 95814

info@parks.ca.gov

Tom Ward, Manager, Recreation
Calif Dept Of Parks & Rec
1416 9th St Room 1404-2
Sacramento, CA 95814

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

dvinc@parks.ca.gov

David Green Baskin
Mountain Bikers of Santa Cruz