The Portland-based non-profit Northwest Trail Alliance has decided to take legal action in response to the City of Portland’s decision to ban bicycling in the River View Natural Area. Yesterday, the group filed a Notice of Intent to Appeal with the Oregon Land Use Board of Appeals (PDF).
In a letter to their 1,000 members explaining why they’ve taken this step, the Northwest Trail Alliance Board of Directors said they “strongly believe” the decision published in a March 2nd memo by Commissioner Amanda Fritz and Nick Fish was made, “in the absence of due process and without any rational basis for exclusion.”
“… the gravity of this decision, the lack of justification, and the lack of answers has led the board to believe that the next right step is to take legal action.”
– Kelsey Cardwell, Northwest Trail Alliance board president
“Citing only a vague ‘abundance of caution,'” the letter states, “the commissioners sidestepped the planning process initiated in 2013. Subsequent communications provided by the commissioners fail to address our questions and concerns.”
In a press release, NWTA Board President Kelsey Cardwell made it clear that she’d much rather work with the city and not have to file an appeal, but the way this decision has been handled by Fritz and Fish has left them no other choice. “For years we have worked with the city in good faith,” she wrote, “and we would much rather continue in that partnership to resolve this issue. However, the gravity of this decision, the lack of justification, and the lack of answers has led the board to believe that the next right step is to take legal action.”
The initial paperwork to file the intent to appeal has cost $400 so far. To help them wade through the complicated land-use appeal process, the NWTA has hired lawyer Aaron Berne of Harris Berne Christensen LLP.
From here, the City of Portland has 21 days to deliver “the record of local proceeding” to LUBA. This record should contain all the information the City used to inform their decision. If necessary, the NWTA would then have 14 days to question or object to the contents of the record and the City would get another 14 days to respond. Once the record has been settled and received by LUBA, the NWTA would have three weeks to submit their official petition and the City of Portland gets twice that long to file their brief. After hearing oral arguments from both sides, LUBA would then make a final decision.
The ultimate LUBA finding will take one of three forms: An approval of the city’s decision, a reversal of it, or a “remand” of the decision where they’d send it back to the city for further consideration.
It’s unlikely LUBA would issue a reversal in this case because no clear violation of law or breach of jurisdiction has taken place. A remand, or a “do-over,” makes much more sense. According to the land-use experts at 1000 Friends of Oregon, here are some situations where LUBA would remand a case:
“LUBA will also remand a decision if the local government fails to follow proper procedures to such an extent that the failure ‘prejudiced the substantial rights of the Petitioner.’
LUBA will remand a decision that is not ‘supported by substantial evidence in the whole record.’ This means that LUBA will send a decision back to the local government if (1) there was virtually no evidence to support the decision, or (2) the supporting evidence was so undermined by other evidence that it was unreasonable for the local government to decide as it did.”
In the River View case, the NWTA does seem to have had their rights violated. They were led all along to believe that bicycling would be allowed in the 146-acre parcel, only to be blindsided by the commissioners’ decision. As we’ve reported, even members of the Parks Board were unaware of the bike ban. One member, Jim Owen, was so disturbed by it that he asked Parks Director Mike Abbate if there was a way they could “re-open the conversation” about it in order to accept more feedback.
Documents we’ve obtained through a public records request show that as late as June 2014 the city planned to build bike trails at the site, only to abruptly halt the public process a few months later.
In the past few weeks, Commissioners Fritz and Fish have offered no evidence to support their decision other than vague references to conservation concerns (which have no basis in science) and what they refer to as an “active lawsuit.”
Also noteworthy as we head into this appeal process is that the NWTA’s lawyer has included the March 2nd memo from Commissioners Fritz and Fish as the official decision they plan to appeal. This is important because LUBA requires that the decision to be appealed is a “final” decision, not a temporary one. Then recall shortly after the March 2nd memo was released, when Commissioner Fritz posted a follow-up message to the River View website where she appeared to try and backpedal from the decision:
“We are not saying River View will never be used for mountain biking, rather just not now, before the citywide assessment of appropriate places for cycling is funded and completed.”
Was Fritz advised to do make that statement by city attorneys specifically in hopes of staving off a LUBA fight? This is just one of the issues that will hopefully get hashed out in the weeks to come.
UPDATE, 11:24 am: The NWTA has just released an open letter to members and supporters. I’ve posted it in its entirety below:
An Open Letter to Our Members and Supporters,
Yesterday, the Northwest Trail Alliance filed a Notice of Intent to Appeal with the Oregon Land Use Board of Appeals regarding the recent mountain bike ban in the River View Natural Area. We did so because the Board of Directors strongly believes that the decision to ban bikes was made by City Commissioners Fritz and Fish in the absence of due process and without any rational basis for exclusion. Citing only a vague “abundance of caution,” the commissioners sidestepped the planning process initiated in 2013. Subsequent communications provided by the commissioners fail to address our questions and concerns.
We do not take this action lightly. We would much rather work in partnership with the City to resolve the issue. However, the gravity of this decision, the lack of justification, and the lack of answers has lead the board to take legal action. We simply cannot stand idle.
NWTA was first notified about the change in policy at River View in a meeting with representatives from Portland Parks & Recreation (PP&R) and the Bureau of Environmental Services (BES) offices on March 2. Understandably, we were caught off guard by this announcement, having participated in the planning process until it was halted abruptly in August 2014.
We empathize with the community’s frustration with this decision. We have observed displays of dissatisfaction in various forms, including the recent protest ride at River View on March 16. These reactions represent frustration not only with this decision, but also the glaring lack of progress on the topic of access to natural surface trails in the City of Portland over the past decade or more. We encourage our members and supporters to continue to make their voices heard in an appropriate fashion. At the same time, we cannot condone and strongly discourage any acts which defy current regulations related to trail access. As frustrating as it has been, we are committed to working within the system.
In addition to filing this appeal, we have leveraged our collective voices to apply pressure on the City to reconsider this decision:
- We continue to actively engage with the commissioners and their staff to maintain an open dialogue. We submitted specific questions regarding the process and justification for the ban. To date, we have not received a satisfactory explanation. (http://nw-trail.org/?q=node/7886)
- We continue to engage with Mayor Hales’ office to encourage his direct involvement in this change in policy, and the larger issue of trail access in Portland.
- NWTA members testified before the Parks board two days after the decision. Surprisingly, the Parks Board was not made aware of the decision beforehand and expressed concern about this abrupt change in policy.
- NWTA also testified at a City Council meeting about what cyclists can bring to the table when allowed in our green spaces. (https://www.facebook.com/nwtrail/posts/867238923318203)
- We are actively employing social and traditional media to build awareness and support. Encouragingly, the Oregonian and other news outlets have covered this issue, and a recent Oregonian editorial strongly criticized the City’s actions. We anticipate continued local, regional and national coverage on this issue. (http://www.oregonlive.com/opinion/index.ssf/2015/03/portland_sticks_it_to_mountain.html#incart_river)
- We worked with our parent organization, the International Mountain Bicycling Association (IMBA), and their partner organizations PeopleforBikes and the League of American Bicyclists to weigh in on this issue. On March 18, these organizations delivered a joint letter to the commissioners and Mayor Hales expressing their dissatisfaction with the recent decision. (http://bikeleague.org/content/league-supports-portland-mountain-bikers).
- While not officially involved in the River View Protest Ride, many of our members and supporters were present. It was a strong show of support with over 300 people participating. We received positive response from the City and other entities regarding our right to protest, our message, and the way it played out in a mature and controlled manner. (http://www.katu.com/news/local/Mountain-bikers-test-new-ban-on-trail-riding-at-River-View-Natural-Area-296527051.html?tab=video&c=y)
- We continue to monitor the work of the River View Technical Advisory committee. We attempted to attend the River View Technical Advisory Committee (TAC) meeting, but we were refused entry on grounds it was not a public meeting.
- We will continue to participate as a member of the Project Advisory Committee scheduled to reconvene on April 8.
Mountain Bike Master Plan and Larger Efforts
Over the past several years, NWTA has engaged with PP&R and the City in good faith in an effort to increase access to singletrack. Previous efforts, including those of the Forest Park Singletrack Advisory Committee, haven’t resulted in any progress on the ground. In fact, the amount of singletrack trail open to cyclists within the City has decreased over the past decade. The River View ban would decrease access even further, which is why the issue is of such great importance.
The timing of the River View decision is particularly troublesome, given that NWTA is actively lobbying for the City to fund an off-road cycling master plan. NWTA initiated the funding for the proposal by presenting a petition signed by close to 3,000 supporters to the Parks Budget Advisory Committee. We continue to lobby for its funding, and are hopeful that Mayor Hales will include this funding in his final budget request. Should that happen, we are confident that we will have support from a majority of City Council.
While Commissioners Fritz and Fish did order the closure of River View, they also pledged to support funding for the off-road cycling plan. This pledge should be seen as a positive offer and we should agree to support their initiative and willingness to move forward with a larger solution.
We need a master plan because we need a roadmap for the future of off-road cycling in Portland. Without a master plan, access will continue to be limited. We anticipate it will be a lengthy process, and while we are not excited about a delay in progress, we recognize it is a critical element to protect and grow access.
As unfortunate as it is, the River View decision is another important event in our continued advocacy efforts. It has galvanized our community, and brought attention to the issue at a local and national level. We will continue to leverage this visibility to further our long-term goals of delivering a “ride to ride” experience in the City of Portland.
There are reasons to be optimistic. Our collective voice continues to get stronger. Public agencies recognize a benefit in providing cyclists access to natural surface trails, and to an active, healthy recreation. The majority understand how conservation and recreation can coexist by applying current recreation and resource management tools. They also recognize the significant enthusiasm and resources the mountain biking community brings to the table, particularly valuable in an era of constrained budgets.
Rest assured that while our focus has most recently been on River View issue and access in the City of Portland, we haven’t lost sight of the organizations’ larger mission of advocating for sustainable trails throughout the region. We’ve had numerous successes in recent history, including the development of a world class bike only network at Sandy Ridge, and the continued development of a trail system at Stub Stewart State Park. We continue to work collaboratively with our partner agencies Bureau of Land Management, US Forest Service, Oregon State Parks, Washington Department of Natural Resources, Port of Cascade Locks, and others to expand and improve riding opportunities within the region.
We appreciate your continued support, and encourage you to follow these issues closely and make your voices heard. Together we are stronger.
Please lend your voice to this cause by sending a letter to Mayor Hales. We’ve included below a letter that you should customize with pieces of your own personal story. We have already filled in talking points about the Mayor’s priorities: “complete neighborhoods” and “equity and opportunity.”
Board of Directors
Northwest Trail Alliance
“Dear Mayor Hales,
As an avid cyclist, I would like to bring two issues to your attention. First, I urge you to support the off-road cycling master plan in your budget. I believe in healthy, active, livable communities and I promote the concept of “ride to your ride.”
I also want to alert you to Commissioners Fish and Fritz’s recent decision to abandon an ongoing public process, arbitrarily and with no basis in science or data. In doing so, they undermined the professional input of a technical advisory committee and devalued community involvement.
It’s clearly time for a citywide plan that identifies great places for safe, recreational cycling. It’s important to me that all communities in Portland have easy access to exercise and outdoor fun.
Thank you for your consideration,”