Dear Ms. Wagner,

These are my written comments regarding The Forest Of Nisene Marks State Park Preliminary General Plan/Draft EIR. It seems my comments fall into two categories, the first being actual suggestions for bettering the text of the plan, and the second being general comments about the plan and my reasoning against the planís interpretation of the applicable deed restrictions which will allow mountain bikes on the single-track trails above the Soquel Augmentation Line (popularly approximated as where the steel bridge of Aptos Creek Road spans Aptos Creek, though it technically is up the road a bit).

Suggestions For Bettering The Text

This category in and of itself might seem ludicrous because in general the text of the plan is so very well written. As I understand it, this is perhaps not in keeping with the typical, dry approach to such bureaucratic documents, and the readability and color in the plan is indeed thanks to Santa Cruzís own very popular historian, Sandy Lydon. I do find this aspect enjoyable, humanizing, and wonderful to read.

  1. One important aspect is left out of the historic recap in the Existing Conditions and Issues section that begins on page 5. Somewhere around page 49 in the "The Forest of Nisene Marks State Park Ė 1983 Ė present" section there should be an accounting of how the deed restrictions were interpreted to not include mountain biking on the trails above the Soquel Augmentation Line. For as much well-written, detailed history that is included, such an omission has the appearance of "spin". The "no bikes" interpretation of the deed was indeed made in the mid '80s and accounts for the existing rules restricting mountain bikes on all trails above the Soquel Augmentation Line to this very day, so that fact and how such rules were arrived at should be included here.
  2. On page 67 (still under Existing Conditions and Issues) there is a further reference to biking being allowed on designated trails. At that point in the document it should also be noted that none of the trails currently designated as legal for biking are within the area covered by the deed restrictions. Again, I see not specifying such in this incredibly otherwise thorough narrative as being politically slanted to camouflage the current interpretation of the deed as a means to distract from the controversial issue of State Parks reinterpreting the deed differently for the new plan.
  3. On pages 73 and 74 under Existing Conditions where the Deed Restrictions are discussed, I take great exception to a blatant misrepresentation of the facts regarding the use of the term "natural preserve" in the deed and how the narrative style of the plan serves to rob the significance of what were probably very specific, carefully chosen words in the deed.
  4. The plan says: It does not incorporate the definition of "natural preserve" as specified in the Public Resources Code (Section 5019.71), which was not adopted until 1978, some thirteen years after the deeds were recorded.

    I do not have full access to be able to completely research the full history of the Public Resource Code, but I was able to find that Section 5019.71 from 1978 had as a predecessor the 1971 code of Section 5001.5. Being that Section 5019.71 was a fine tuning of Section 5001.5, Iím certain that further language in Section 5001.5 was replaced by Section 5019.71, and it would have been in that prior portion of Section 5001.5 or accompanying notes that the term "natural preserve" was first defined. Evidence of this is that Section 5001.7 regarding airport facilities (must have been fairly close to 1971 or so being that itís just a couple decimal digits beyond 5001.5) does use the land use designation of "natural preserve" in its text, along with the other land use designations of "state wilderness", "state reserve", and "cultural preserve".

    Therefore the plan should not include this misleading implication that "natural preserve" was not adopted until 1978. 1978 is simply the year that the currently written definition of that designation was adopted, and it is most likely that the designation was first adopted in 1971. 1971 is of course still a number of years after the deed was written, but the smaller span of time does serve to bolster the probability that the use of the term by the Nature Conservancy was indeed accurate for its intended meaning being in line with what was eventually adopted by the state. I would be surprised if the exact term adopted by the state was not for the most part defined at the time by such organizations as the Nature Conservancy.

  5. Another problem I see in the plan has first to do with its well written definition of "Low Allowable Use Intensity" (page 101), with a wonderful case being made for what is so special in the areas recommended for "Low Allowable Use Intensity", how delicate and pristine the resources are, and how important it is to fully protect such resources. The "Activities" listed for this use intensity level (beginning at the bottom of page 102) are entirely in line with the respect and protective fervor expressed in the narrative description of the category, and that list (correctly, I think) does not include the highly recreative sport of mountain biking. Surely after all the talk in this use intensity designation about the "steepest slopes and most erodible soils" and the resources "that are especially vulnerable to impacts from activities and development", including biking as an activity would look ridiculous.

The problem is, however, that later, when the "Low Allowable Use Intensity" concept is applied to an actual "Land Management Zone" called "Resource Protection and Low Intensity Recreation" (page 110), the land sensitivity issues so eloquently described previously are painted with broader, less particular strokes, and suddenly, there in the narrative list of activities, appears "biking".

I very much think that "biking" should be very completely removed from the listed "visitor experience and recreation opportunities" for this "Low Intensity" Land Management Zone.

My General Comments About Decisions And Choices In The Plan

"Natural Preserve" Designation Belongs In The Plan

The general plan development process that has been shared with the public via a series of public meetings has each step of the way "softened" its proposals in terms of protecting the land and honoring the deedís requirement that it be "preserved for all time as a natural preserve". Even putting aside the official land designation aspect of the words "natural preserve", the very clear meaning of this phrase in the deed (along with all of the accompanying text of the deed) points to the donorís intent that the land be left in its natural state with all attempts made to limit access to just those activities that are the least likely to hurt the land.

As each series of proposed plans (A, B, and C) has been presented at each public meeting, the strictness of the land use categories has diminished, and now we donít even have the land use designation of "natural preserve" in any of the 3 options. The reason given for this in the April 12, 2003 public meeting was that the land is not "unique" so as to set it apart from other areas of the Santa Cruz mountains.

In reading the current definition of "Natural Preserves" (PRC 5019.71) I do not even see the word "unique". What I see is "outstanding natural or scientific significance", and that certainly does describe Nisene Marks. In addition, I feel that the land is unique and special in that it, as opposed to most of the Santa Cruz mountains, is set aside for the public. The fact that it was previously logged in parts does not detract from the land having (and this is from PRC 5019.71) "representative examples of plant and animal communities existing in California prior to the impact of civilization, geological features illustrative of geological processes, significant fossil occurrences or geological features of cultural or economic interest, or topographic features illustrative of representative or unique biogeographical patterns." (oops - there is one "unique")

Further, the deed itself requires that the land be preserved in a manner analogous to what the State has defined as "natural preserve". The deed does not say that such is later open to interpretation by the State based on qualifications it deems fit to place different public lands into different land use categories. In effect, the deed says the State shall be a steward of the land as long as it respects the choice that the Marks family made in choosing what that land category shall be. "Natural Preserves" in the current land designation sense exactly fits the tone and specifics of what the deed expressed.

I have too great of a respect for words to accept the argument of the State Park plan developers that the Nature Conservancy and the Marks familyís meaning behind "natural preserve" in the Ď60s was not the same meaning found in those words when they were adopted as a land use designation in 1971. (My point number 3 in the first section of this letter addresses how the 1978 adoption year of "natural preserve" by the State included in the plan is incorrect.)

The Current Restriction Against Bikes On The Single-track Trails Above The Steel Bridge Should Remain In The Plan

Mountain biking is not specifically mentioned in the deed as being restricted from the trails above the Soquel Augmentation Line, but that is because mountain bikes didnít exist when the deed was written. Mountain skateboarding, mud-sledding, and whatever other future highly recreative activities have yet to be invented were not specifically mentioned either. Along with all the other deed text about preserving and caring for the land, the following words were given to indicate the nature of activities that would be appropriate: That the use of the Property shall be limited to camping, nature study, hiking, and associated activities.

Mountain biking is a fun, exhilarating sport. It can be gentle and slow, as you often see with families riding along the fire road in Nisene Marks where mountain bikes are currently permitted. But on the steep, winding, single-track trails in the deed restricted area above the steel bridge, mountain biking is almost always at itís most exhilarating Ė in short, a thrill sport.

Mountain biking on the single-track trails in Nisene Marks is to "camping, nature study, and hiking" what a tidal wave would be to a quiet walk on the beach. Reading, photography, jogging Ė these are activities associated to "camping, nature study, and hiking". For the State to rule that mountain biking should be allowed as an "activity" associated to camping, nature study, and hiking seems just so strange to me. Itís like someone taking an IQ test and failing the association test where one is given a group of things (say "an orange, a cantaloupe, a block of wood, and a tomato") and cannot identify the one item in the series that doesnít belong.

In the plan (page 46) reference is given to interviews with Herman Marks and his realtor in the late Ď70s. The plan states: both Herman Marks and the realtor, Don Thompson, explained that the Marks family had nothing against horses per se, but that they were concerned about the damage that horses might do to the hiking trails in the Park.

First, note "hiking trails". They were saying that they were concerned about potential damage to "hiking trails". In the late Ď70s mountain bikes were perhaps becoming a glimmer in some peoplesí eyes, but even still the donor himself was defining the trails as being for "hiking".

This paraphrasing of what was said in interviews illustrates another big factor for not allowing mountain bikes on the single-track trails above the steel bridge in Nisene Marks Ė damage to the trails and to the environment. Mountain bikes harm the trails and hurt the fragile environment such as that found in Nisene Marks in amounts exponentially greater than does hiking, and perhaps even moreso than does horseback riding. Anyone who hikes and sees this damage, especially in places where mountain bikes run rampant such as the single-track trails in Wilder Ranch or Gray Whale Ranch in Santa Cruz, can attest to this fact. Our mountains usually and hopefully get a lot of moisture, and that means mud, and while mud plus anything (hiking included) can mean erosion and damage, mud plus biking reduces trails to sorry ruts that become almost impossible for hikers to negotiate.

Of course "biking" will be an issue in my next topic of "Public Safety", but for now the last of my words imploring State Parks to honor the deed and not allow mountain bikes on the single-track trails above the steel bridge in Nisene Marks is simply to say how much biking ruins the experience of hiking for which the Marks family seemingly most wanted the land preserved. The trails in Nisene are steep, winding, and narrow. This means that the typically aggressive mountain biker who is the type to ride those trails (and yes, of course plenty currently ride the trails illegally) is coming out of nowhere, riding fairly fast, and often scares the absolute bejesus out of a hiker enjoying the quiet and solitude of the trail.

What would Henry David Thoreau think?

Much is made of the overall plan to have "shared-use" trails, but as has been said by many hikers, "shared-use" really boils down to "mountain bikes only" because hiking on a "shared-use" trail will no longer be enjoyable.

Public Safety

Iím not sure what has changed in the last number of years, but it seems to me that laws, rules, and regulations used to always be written to error on the side of being overly safe. Iím not sure if it was the threat of lawsuits, a less corporate-influenced society bent more on consumer protection, or what; but the low amount of attention to public safety in many areas just amazes me. (Itís okay that people driving cars at all sorts of speeds and in all sorts of traffic conditions are holding a phone in one hand and having a potentially distracting conversation with someone whoís somewhere else entirely and not even close to being a second set of eyes and ears for the dangerous task of driving the car? Ė sorry, off topic!!)

Both the preliminary general plan/draft EIR and the deed speak of the need to consider public safety. However, in softening the use restrictions to allow "shared-trails" in the steep, tricky terrain of Nisene Marks, State Parks is certainly chucking public safety out the window. Bikers and hikers on the same trail when the visibility is adequate for them to always be aware of each other would be safe, but what trails in Nisene Marks fit that description? If any single trail is completely safe in this regard, I certainly havenít seen it. Most trails in the deed restricted area of Nisene Marks are probably this safe for as little as 1/3 of the trail and possibly as much as 2/3. This means that almost all of the trails have significant sections that are downright dangerous if "shared-use" is allowed.

Owing to the tightness of the mountains in Nisene Marks and the dense forest, mountain bikes are usually not as easily heard as they seem to be in other places. And on the trails in the deed restricted area bikers riding downhill are typically going fairly fast as such trails can be steep and do attract the best riders. Other features of those trails is that they curve a lot and thereís not a lot of visibility. Therefore hikers and bikers on the same trails add up to accidents just waiting to happen. Public safety, called for in the both the general plan and the deed, can only be served if such dangerous situations are discouraged via the rules and regulations.

Lack Of Science

Lastly, it is evident that this plan was put together with words and not with very much science. The existing conditions of what is out there are culled from other studies and writings rather than from State sponsered scientific research. In effect, the plan is attempting to establish how to protect something that it has not even defined. Where are the field surveys and biological inventory reports?

If such studies, surveys and inventories are done, I am certain that the evidence of what is actually there in Nisene Marks would demand that a great portion of it be protected at the level described as "Natural Preserves" in PRC Code 5019.71. State budget woes or whatever else has directed this general plan to be for the most part created via mere word processing and graphics cannot justify a final version of the plan that errors on the side of non-protection of resources that have not yet been properly cataloged.

I don't mean this to minimize the work that many have done to create and present the plan thus far. Clearly many dedicated people have been working very hard to create and present where they'd like the Forest Of Nisene Marks State Park to go. I just believe that they're getting some very important aspects wrong.

Thank You,

Rich Apple

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