PRESERVE THE SERENITY OF NISENE MARKS
is the exact text of the "Gift Deed" for the upper portion of The
Forest Of Nisene Marks (generally above the steel bridge). In my opinion (expounded
upon below the text of the "Gift Deed") the restrictions of this deed
exclude the usage of mountain bikes in this area of the park, and if the State
of California proceeds in the direction being indicated by the contractors creating
the general plan for the park (to allow mountain biking in this upper portion
of the park), any descendents of the Marks family or executors of their estate
(includes the Nature Conservancy according to The Ventana chapter of the Sierra
Club) can and should take advantage of the legal rights given to them by this
deed and take possession of the property away from the state.
The gift of this land to the people of California was extremely generous of the Marks family and should be honored by respecting its intent, which was to preserve the land as a "natural preserve" for the enjoyment of its beauty and serenity.
the undersigned, Agnes K. Marks, a single woman, Herman H. Marks, a single man,
and Andrew P. Marks, a widower, hereinafter sometimes designated the "Donors",
wish to convey to the State of California, hereinafter sometimes designated
"State", a total of some Nine Thousand (9,000) acres of real property, to be
included within a State Park to be known as "The Forest of Nisene
WHEREAS, said conveyance is motivated by the affection of Donors for said real property and their intention that said real property be preserved for all time as a natural preserve, notwithstanding any future change of use of any surrounding properties and notwithstanding that increased population and other causes may bring about such changed uses in future years; and
WHEREAS, said real property will be conveyed by Donors to the state by gift deeds in several separate parcels, including the following:
the "Hinckley Basin" parcel, constituting some Two Thousand Five Hundred (2,500) acres, more or less,
the "Timothy Hopkins" parcels, hereinafter described, constituting some One Thousand Seven Hundred (1,700) acres, more or less, and
the "Aptos Forest" parcel, constituting some Four Thousand Eight Hundred (4,800) acres, more or less.
NOW, THEREFORE, Donors grant to State, to the end that its citizens may enjoy this land in perpetuity, all that real property situated in the County of Santa Cruz, State of California (hereinafter referred to as the "Property"), described in Exhibit "A" attached hereto and by this reference made a part hereof.
RESERVING THEREFROM a non-exclusive easement twenty (20) feet in width, for ingress and egress, pipelines and utilities, the location of said easement to be mutually agreed upon between Donors and State and to be located, both as to terrain and ground conditions, so that erosion will be at a minimum and so that trees shall not be cut or destroyed unnecessarily. Together with all of the Donors' right, title and interest in and to all water and water rights, whether surface or subsurface, or any other kind, including all appurtenant water and water rights, and all water and water rights in any wise incident to the Property, or used thereon or in connection therewith, and all other appurtenant rights and easements pertaining to the Property.
TO HAVE AND TO HOLD the Property, its incidents and appurtenances, unto said State, its successors and assigns forever; subject to the following conditions subsequent:
1. That the Property shall be a portion of a State Park to be known as "The Forest Of Nisene Marks";
2. That adequate standards for public health and safety shall be maintained thereon;
3. That there shall be no horseback riding thereon;
4. That the use of the Property shall be limited to camping, nature study, hiking, and associated activities;
5. That any development of the Property in connection with said activities shall be in keeping with its natural surroundings;
6. That there shall be filed no complaint in an action of condemnation whereby it is sought to condemn all or any portion of the Property, or any interest therein, whether or not the State shall participate in or accede to such exercise of the power of eminent domain.
Upon the breach of any of the conditions or the happening of any of the events hereinabove specified, Donors, their heirs, successors, administrators and assigns, or any one or more of them, may declare the forfeiture of that portion of the Property directly affected by the breach or occurrence upon which the forfeiture is based, and may reenter and take possession of said portion of the Property and all right, title and interest of the State or its successors in and to said portion of the Property as to which forfeiture shall have been declared and re-entry effected, shall thereupon immediately vest in the Donors, their heirs, successors, administrators and assigns. It shall be completely at the option of the Donors, their heirs, successors, administrators and assigns, to declare the forfeiture and effect re-entry of the portion of the Property which is directly affected by the breach or occurrence upon which the forfeiture is based.
Forbearance by the Donors, their heirs, successors, administrators, or assigns, to take advantage of any breach of said conditions shall not constitute or be construed as a waiver of the rights of the Donors, their heirs, successors, administrators, or assigns, by reason of any subsequent breach.
IN WITNESS WHEREOF, the undersigned have caused this instrument to be executed this 28th day of October 1963.
Agnes K. Marks
Herman H. Marks
Andrew P. Marks
One slight update to my perhaps longwinded opinion stated below is that printed and on-line articles have now appeared in "The Ventana" (publication of the local chapter of the Sierra Club). They agree with the basics of my opinion, but add information about how the Nature Conservancy was involved in the original transfer of ownership to the state, and how the Nature Conservancy can (and actually has in the past) use the rights designated to the "donors, their heirs, successors, administrators and assigns" to force the state to either follow the deed or lose possession of the property.
You can find links and contact information at the end of all of this. In a hurry to get to the "What can I do?" stuff? Click here...
In My Opinion
The short version of my opinion on the General Plan for The Forest Of Nisene Marks is this: The Marks family generously donated the land to the State of California with the requirement that the portion of The Forest Of Nisene Marks that is generally above the steel bridge (more exactly, I guess, the line is drawn right about where the power lines run perpendicular to the road a little distance above the steel bridge) be kept as a "natural preserve" for people to enjoy in quiet, calm ways that do not hurt the terrain or detract from its peaceful nature.
"Natural preserve" were the words used in the deed, and probably not coincidentally, are words having a specific meaning in terms of land use in State managed lands.
"Natural Preserve: managed primarily for resource protection"
In the last public workshop (October 20, 2001) the contractors presented three alternatives for a General Plan. None of the three alternatives stating which sections of The Forest Of Nisene Marks would be managed at what level (Wilderness, Natural Preserve, and two other categories that include "recreation" and "more intensive recreation") that were presented as options by the contractor (Royston Hanamoto Alley & Abey from Mill Valley) meet the basic requirements of the deed. All three alternatives allow "recreation" such as mountain biking in the portion of the park above the steel bridge.
Key to my opinion is the fact (a fact that seems lost on many, including the herds of mountain bikers lobbying hard to get as much of the park as possible for their sport, but not lost on the hikers and runners who have spoken up and hopefully have sent written comments to the contractor) that "shared trails" or "multiple use trails" don't work except for the mountain bikers who will eventually be the only ones using the trails.
Mountain bikers of course want to fly down the winding, hidden trails as fast as they can while still keeping in control and being relatively safe in terms of their own welfare. It's fun. I know because I've done it. I have two mountain bikes myself. Unfortunately, this is inherently dangerous to people on foot using the same trail. And for the majority of incidents where biker meets hiker, while an actual accident doesn't occur, it is still completely unsettling for the hiker who is trying to enjoy nature in exactly the manner for which the Marks family wanted it preserved. In fact, the very knowledge that bikes might come racing down from around any turn detracts greatly from the enjoyment of a hike.
The only reason I can guess that the direction the General Plan is taking is so illegally accommodating to mountain bikes is that mountain bike enthusiasts are very organized, very vocal and great in numbers since through the various mountain bikes organizations they are reaching members throughout the entire bay area to join them in their lobbying efforts. On the other hand, people who enjoy Nisene Marks on foot and without wreaking havoc upon the land and fellow park users are probably mostly local and not tied to any industry sponsored groups as to be so organized and able to perform outreach and so forth to rally support for our cause.
In my opinion (this has been the short version?) it makes no difference how many people lobby for mountain biking in the upper portion of Nisene Marks, the restrictions of the Gift Deed simply do not allow it. And while it's my first hope that enough people speak up now to positively influence the development of the General Plan to have it remain within the limitations of the deed, if this doesn't happen, then I hope some "heirs, successors, administrators or assigns" of the Nisene family will step forward and do the right thing by taking the land back from the State of California, as is their right if the State fails to honor the spirit and intent of the generosity of their family.
To this end I encourage
fellow hikers and "enthusiasts of serenity" to contact State Parks
and voice your opinion via the following address and those included at the bottom
of this page:
I will add any new contact information below if I receive it. Also, I will put a notice at the very top of this page about any other public forums to be held.
One quick thing I'd like to add to this short version of my opinion is that it is entirely piggish of mountain bikers to want to lay claim to one of the last places in Santa Cruz County where hikers can hike in peace. (Well, theoretically hike in peace, since though mountain biking is currently against the law on any and all single track trails above the steel bridge in Nisene Marks, there are so many up there now that I can't imagine what it would be like if it was legal.) Mountain bikers already own and have pretty much ruined both Gray Whale and Wilder Ranch for hiking.
Okay, now for the long-winded version of my opinion...
While many people, myself included, would prefer that no development of the park takes place and it just remains as it is in its wild, rugged, peaceful and natural state; the reality is that it is a state park and California State is not going to allow it to languish as the wonderful backyard park/secret spot that it almost is today. Hence the development of a General Plan.
I imagine there is much work that goes into creating a General Plan for a state park, and I'm sure that the hired contractors (Royston Hanamoto Alley & Abey from Mill Valley) are proficient at (and likely well paid for) what they do. There seems also to be many local people who have been working with the contractors who have no doubt also been doing good work, and likely doing so in the hopes of having The Forest Of Nisene Marks State Park strike a good balance between preserving and protecting the land and making it available to the public.
After attending two of the four public workshops, it is appearing that the process of creating a General Plan that keeps within the bounds of the intent, spirit and letter of the terms upon which the land was so generously donated to the state has been very much hijacked by a strong lobbying group of mountain bike enthusiasts.
In the last public workshop (October 20, 2001) the contractors presented three alternatives for a General Plan. All three alternatives violated the intent and spirit of the gift of the land to the public for the enjoyment of the beauty and serenity of the land through activities such as camping, nature study, and hiking. All three alternatives allow the thrills and spills of single track mountain biking on the very trails that were given to Californians on the premise that they be preserved for the peaceful, introspective enjoyment of nature.
Mountain biking is fun. It is highly recreational, energetic, exciting, and to ride in a beautiful place on a single track trail through the trees makes it all the more fun. Unfortunately, everything that makes it so exciting and recreational necessarily makes it absolutely incompatible with "nature study" and "hiking".
Mountain bikes were not around in 1963 when the deed was written. Had they been, I'm certain that they would have been specifically disallowed for two reasons: erosion (which is likely the reason horseback riding was disallowed) and being distruptive to the true enjoyment of the beauty and serenity of the land.
I believe mountain bikes are disallowed by the deed even as it is written. The deed says that "the use of the Property shall be limited to camping, nature study, hiking and associated activities". If "associated" here was intended to be extremely loose and far reaching, then the Marks family wouldn't even have included an attempt to name the activities they saw as appropriate for the enjoyment of the land. Accepting loosely associated activities could reason that camping is related to vacations, and for some people, "vacation" means staying in fancy hotels that have neon lights and casinos. So does anyone think the Marks family would think it's okay to build a few Las Vegas style hotels up in the park? Or perhaps a water slide?
I think it's a lot more obvious that "associated activities" are meant to be activities that are closely associated to camping, nature study and hiking. And to be closely associated they also have to be conducive to the quiet nature of those activities, and conducive to the peaceful quietness of hiking and nature study is the one thing that mountain biking is not.
If you haven't had the experience of hiking and having to "share" a trail with mountain bikers, trust me that the best experience goes like this: You're hiking. It's quiet and beautiful and you're soaking up the beauty. You're of course watching where you're going enough to stay safely on the trail, but because you're out there to enjoy nature, you're looking around quite a bit, interested in what you see and hear. Suddenly there's an urgent, unnatural sound, and if you're at Nisene Marks with its deep, tight gorges and winding trails, that sound is likely to come at the very last minute before mountain bikers are upon you.
The best this experience can be is that you are startled and brought completely out of whatever peaceful, introspective state you may have been in while immersing yourself in the beauty of your surroundings. The mountain bikers see you and they are in control enough that their passing you is negotiable with the terrain, with of course you stepping aside, and since this is the best the experience can be, you don't step into a patch of poison oak. The mountain bikers are nice enough and act considerate and appreciative as you let them pass, and perhaps if there are others in their party who are a ways back, they may even let you know how many more are coming.
The worst that could happen would of course be that you suddenly hear the bikes just before they run into you and somebody gets injured or worse. While I assume the worst is rare, from my own experience, the "best experience" I described for when mountain bikers come down the trail upon one or more hikers happens perhaps just under half the time. The rest of the experiences combine some flavor of being startled, having to quickly get out of the way, and having to put up with some amount of "attitude" from the bikers that can be anything from outright rudeness and contempt for your being in their way, to some sort of simpleminded cluelessness where they don't even get it that they might by their very recreational presence be ruining a place that by all rights should be free of such hectic, rat-race, urban disturbances.
The above is true regardless of what the politically motivated organizations of mountain bikers say. I've heard them speak, and they'd have you believe that mountain bikers never go very fast, and when they see hikers they stop their bikes, happily hop off, and move clear off the trail for the hikers. (At this point any experienced hikers must be laughing and mountain bikers must be saying "We're supposed to do that?")
So "Shared Trails" or "multiple use" trails do not work. What such terms really mean is that the trails become mountain bike trails because most hikers give up trying to enjoy a nice hike that too often becomes as nerve-wracking and unsettling as being in the city.
Okay, this has all been my opinion, and even though it is all absolutely correct and true, it is still just my opinion.
Definitions for a few of the words in the Gift Deed
Nisene: This isn't really a definition, but I think Nisene was the mother of Herman Marks. back to deed text
notwithstanding: Substitute "it doesn't matter that" for this word, and you get the idea. At this point in the deed they're saying that the land is to be kept as a "natural preserve" even if all the land around it gets developed. Plus, it doesn't even matter if future growth in population seems to push for some other sort of usage; this land should continue to be held as a "natural preserve". back to deed text
ingress and egress: Entrance and exit... back to deed text
appurtenant: Dictionary definition is kind of gnarly, but perhaps just think "appropriate", in an adjective sort of way. back to deed text
associated: My dictionary defines "associated" as "closely connected, joined, or united with another". I think "associated activities" here should very much be taken to mean activities that are closely associated with the named activities of "camping, nature study, hiking", and an obvious measurement of any other activities would be how conducive they are to camping, nature study, and hiking. back to deed text
forbearance: This means to delay to enforce. In other words, the donors of the property don't lose their right to take the property back if they fail to act right away once the state has violated the restrictions of the deed. back to deed text
People and Organizations to write to:
To have your say, submit your written comments no later than May 12, 2003 to:
California State Parks
Northern Service Center
Attn: Ellen Wagner
P.O. Box 942896
Sacramento, CA 94296-0001
see the plan at www.SantaCruzStateParks.org
Link to The Ventana
Go back up to the start of My Opinion
Page Created: December
3, 2001 Last Update: April 26, 2003 maintained by richapple.com
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Email me: Rich Apple