alta ski resort's motion to dismiss wasatch equality lawsuit

8/12/2019 Alta Ski Resort's motion to dismiss Wasatch Equality lawsuit

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FREDERICK R. THALER (7002)ROBERT O. RICE (6639)RAY QUINNEY & NEBEKER P.C.36 South State Street, Suite 1400Post Office Box 45385Salt Lake City, UT 84145-0385Phone: (801) 532-1500Facsimile: (801) [email protected] [email protected]

Attorneys for Defendant Alta Ski Lifts Company

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

WASATCH EQUALITY, a Utah NonprofitCorporation; RICK ALDEN, an individual;DREW HICKEN, an individual; BJORNLEINES, an individual; and RICHARDVARGA, an individual,

Plaintiffs,

v.

ALTA SKI LIFTS COMPANY, a UtahCorporation d/b/a ALTA SKI AREA; THEUNITED STATES FOREST SERVICE, anagency of the United States Department ofAgriculture; and DAVID WHITTEKIEND, inhis official capacity as Forest Service Supervisorin the Wasatch-Cache National Forest,

Defendants.

MOTION TO DISMISS

Case No. 2:14-cv-00026 PMW

Judge Paul M. Warner

Case 2:14-cv-00026-PMW Document 21 Filed 03/21/14 Page 1 of 30
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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RELIEF SOUGHT AND GROUNDS FOR MOTION

Defendant Alta Ski Lifts Company, d/b/a Alta Ski Area (Alta), seeks dismissal ofPlaintiffs Complaint under Federal Rules of Civil Procedure 8 and 12(b)(6). Plaintiffs assert

that Altas equipment requirement precluding individuals from using various kinds of equipment,

including snowboards, at its resort constitutes a violation of the Plaintiffs rights under the

Fourteenth Amendment to the United States Constitution. This claim is insufficient as a matter

of law, and must be dismissed for at least the following reasons.

First, Plaintiffs, who characterize themselves as a class of people . . . who stand

sideways on a single snowboard, lack standing to assert a claim under the Fourteenth

Amendment. To meet their burden of establishing standing, Plaintiffs must show that their

complaint falls within the zone of interest emanating from the Fourteenth Amendment. It

demeans the Constitution itself to suggest that the Fourteenth Amendment, ratified in the

aftermath of the Civil War, includes in its zone of protection those who engage in a

particularized winter sport. Because Plaintiffs cannot show standing, the Court should grant

Altas motion.

Nor is there any Forest Service final agency action on Altas business decision regarding

the use of snowboards. That decision was made by Alta, and not by the Forest Service. In the

absence of final agency action, the Court should not review Plaintiffs claim against the Forest

Service under the Administrative Procedure Act (APA).

The Court should also dismiss Plaintiffs claim because they cannot show the necessary

state action required to establish a violation of the Fourteenth Amendment. Alta is a private

company that makes many decisions about the manner in which it runs its business, one of which

happens to be the equipment requirement Plaintiffs challenge. The allegations regarding the

Forest Services relationship with Alta do not satisfy any of the four tests for establishing state

action. Hence, Plaintiffs have failed to meet their burden to show state action. Under such



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circumstances, this Court need not analyze the underlying constitutional claims further and thus,

should grant Altas motion.Finally, the Court should grant Altas motion because Plaintiffs cannot overcome the

presumption that Altas equipment requirement is presumed valid under the controlling rational

basis test. In fact, the rational basis for Defendants conduct is supplied by Plaintiffs

themselves in their complaint, in which they allege that the equipment requirement is driven by

business, safety, customer demographic and terrain concerns. Each of these interests supplies a

rational basis that Plaintiffs cannot overcome. For all of these reasons, the Court should grant

Altas motion and dismiss with prejudice all of Plaintiffs claims.

STATEMENT OF FACTS 1

1. Plaintiffs are a group of people . . . who stand sideways on a single

snowboard. (Compl. 5.)

2. The Forest Service is an agency of the federal government. David Whittekiend is

a Forest Service supervisor. (Id. 27-28.)

3. Alta is a privately owned and operated Utah corporation that operates an all

season resort partially on Forest Service land near Salt Lake City, Utah. (Id. 26, 43, 47.)

4. Alta operates its resort under a Forest Service Ski Area Term Special Use Permit

(Permit) that the Forest Service issued on October 25, 2002. (Compl. 47; see also Permit,

attached as Exhibit A.) 2

5. Altas Winter Site Operation Plan (Plan) states that [t]o promote safety of

employees and persons on the mountain and to avoid interference with operations, uphill and

1 The following facts are those as alleged by Plaintiffs in their Complaint filed in this action. Alta sets forth theseallegations only for the purposes of this Motion.2 In a Rule 12(b)(6) motion to dismiss, the district court may consider documents referred to in the complaint if thedocuments are central to the plaintiffs claim and the parties do not dispute the documents authenticity. Alvaradov. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).



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downhill travel must be accepted and approved by Alta Ski Area. (Compl. 51; Alta Ski Area

Winter Site Operation Plan 2013/2014 (Plan), VIII(B), attached as Exhibit B.)6. The Plan further states that Alta reserves the right to exclude any type of skiing

device that they deem creates an unnecessary risk to other skiers and/or the user of the device, or

any device they deem causes undue damage to the quality of the snow, or is not consistent with

their business management decisions. (Plan, VIII(D)(4).)

7. The Plan further states that Alta may restrict [s]ledding, tubing or snowshoeing

in unauthorized areas, [u]nauthorized use of equipment or downhill devices and [u]phill or

downhill travel that is not approved by Alta Ski Area. (Id., VIII(E)(7), (13), (14).)

8. Alta allows various types of skis to be used at Alta, but does not permit the use of

snowboards. (Compl. 88, 103.)

9. The Forest Service has not required that Alta prohibit the use of snowboards, nor

has it encouraged the prohibition against the use of snowboards. (See, id. 51-52.) In fact,

[t]o promote safety of employees and persons on the mountain, the Forest Service allows Alta

to regulate uphill and downhill travel. (Plan, VIII(B).)

10. Plaintiffs do not allege that they have been denied access to Alta when adhering to

Altas rules, including its equipment requirements. (See generally Compl.)

11. Numerous other, all-season resorts operate on federal land under similar permits,

including other resorts in Utah, such as Snowbird, Brighton, and Solitude. These resorts have

made the business decision to allow snowboarding. (Id. 59.)

12. There are differences between snowboarding and skiing. The main difference is

the orientation of a persons feet. (Id. 87.) Specifically, one stands sideways on a single

snowboard, as opposed to facing directly downhill on skis. (Id. 5.)

13. Skiers do not have a blind spot because they face downhill, unlike snowboarders,

who have a sideways stance. (Id. 73.)



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14. Additionally, according to Plaintiffs, snowboarders are often members of the

younger generation and have their own snowboarding counterculture distinct from skiing.(Id. 32-33.)

15. Plaintiffs also plead that some skiers report that they prefer not to ski at resorts

that allow snowboarding. (Id. 77-85.)

16. Altas business model markets itself specifically to skiing. Plaintiffs plead that

Altas website states, The Alta Skiing Emphasis: By limiting the number of skiers in the area

and by not allowing snowboarding, Alta strongly upholds a commitment to your skiing

experience. (Id. 63.)

17. According to a 2006 survey, nearly 40 percent of skiers who indicated that Alta

was their favorite resort did so because snowboarding is not permitted at Alta. (Id. 77.)

18. Another informal survey found that 94 percent of Altas customers prefer to ski at

a resort that caters to a skier-only market, prompting Alta-area businesspeople to agree that

snowboarding should not be permitted at Alta. (Id. 79.)

19. Alta customers like skiing at Alta because, without snowboarding, [t]heres not a

blind spot that people talk about, they find the experience more peaceful, safe and enjoyable

and the mountain is less crowded. (Id. 73, 84.)

20. Plaintiffs also allege in their Complaint that Altas requirement as to the use of

snowboards was instituted for at least the following reasons:

a. Altas customer base prefers to ski where theres no snowboarding and itsbusiness model caters to a skier-only market. (Id . 73-74.)

b. Alta prefers to maintain a skiing culture. (Id .)

c. Altas terrain is not conducive to snowboards. (Id . 74.)

d. Altas equipment requirements aid in maintaining the quality of thesnow. (Id. 51.)



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21. Plaintiffs now sue, alleging under the Administrative Procedures Act (APA) a

single cause of action that Altas equipment requirement violates the Equal Protection Clause ofthe Fourteenth Amendment to the United States Constitution. (Id. 99-112.)

STANDARD OF REVIEW

This Court must under Federal Rule of Civil Procedure 12(b)(6) dismiss the Plaintiffs

Equal Protection claim if it finds that Plaintiffs allegations in support of this claim lack

sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its

face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)). This requirement is rooted in Federal Rule of Civil Procedure

8(a)(2), which states that a pleading must contain a short and plain statement of the claim

showing that the pleader is entitled to relief. This rule requires more than mere [t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements. Iqbal,

556 U.S. at 678. Such claims fail[] to state a claim upon which relief can be granted and

should therefore be dismissed. Fed. R. Civ. P. 12(b)(6).

ARGUMENT

I. PLAINTIFFS LACK PRUDENTIAL STANDING TO ASSERT A VIOLATIONOF THE UNITED STATES CONSTITUTION.

A. Generally.

The Court should dismiss Plaintiffs Complaint because they have not met, and cannot

meet, their burden of establishing the required elements of standing. Plaintiffs carry the burden

of establishing the elements of standing. Mount Evans Co. v. Madigan, 14 F.3d 1444, 1450

(10th Cir. 1994) (finding that plaintiff suing Forest Service lacked standing) (citations omitted).

Determining whether Plaintiffs have met their burden is a two-part inquiry about whether

Plaintiffs can show (1) constitutional standing, and (2) prudential standing. See id. ([T]he term

standing subsumes a blend of constitutional requirements and prudential considerations.).



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Prudential standing applies in a suit for judicial review of agency action under the APA, and in

an action against a non-federal entity alleging a Constitutional violation.3

Here, Plaintiffs cannotcarry their burden of showing prudential standing to invoke this Courts jurisdiction for their

claim against either Alta or the Forest Service. 4

To meet the prudential requirements of standing, the plaintiffs complaint must fall

within the zone of interest to be protected or regulated by the statute or constitutional guarantee

in question. Id . at 1451 (citing Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982)); see also Utah Shared Access

Alliance v. Carpenter, 348 F. Supp. 2d 1265, 1269 (D. Utah 2004) aff'd, 463 F.3d 1125 (10th

Cir. 2006) (affirming dismissal of Administrative Procedures Act (APA) claim for lack of

prudential standing). The only law Plaintiffs attempt to vindicate in their Complaint is the

United States Constitution. 5 Specifically, Plaintiffs sole claim is that they were denied an

alleged right under the Equal Protection Clause of the Fourteenth Amendment to snowboard at

Alta. Thus, to meet their burden to show standing Plaintiffs must establish that the claimed right

to wear a snowboard at Alta is in the zone of interest protected by the Fourteenth Amendment

to the United States Constitution. See Mount Evans, 14 F.3d at 1451.

3 E.g, Block v. Community Nutrition Inst., 467 U.S. 340, 345-48 (1984) (ruling that consumers did not have prudential standing to seek APA judicial review of federal agency decisions related to milk prices); Elk GroveUnified School Dist. v. Newdow, 542 U.S. 1, 17-18 (2004) (parent did not have prudential standing under the Firstand Fourteenth Amendments to challenge state school district policy requiring teacher-led recitation of the Pledge ofAllegiance).4 To establish constitutional standing, a plaintiff must show that (1) he or she has personally suffered an injury infact; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, not merely

speculative, that the injury will be redressed by a favorable decision. Mount Evans, 14 F.3d at 1450. Plaintiffscannot show an injury in fact, given their ability to snowboard on federal lands at every other permitted resort in thenation, including one, Snowbird, that they must pass by to get to Alta to then complain about the denial of aconstitutional right to snowboard. However, Plaintiffs lack of standing is most obvious under the prudential aspectof the standing analysis.5 Plaintiffs also cite the APA in their Complaint. However, assuming that the requisite standing and final agencyaction exists, the APA provides no substantive requirements, but merely provides the framework for judicial reviewof agency action. Utah Shared Access Alliance v. Wagner, 98 F. Supp. 2d 1323, 1333 (D. Utah 2000). Hence, theonly legal questions before this Court are constitutional ones.



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B. Snowboarding is Not Within the Zone of Interest Protected by theFourteenth Amendment to the United States Constitution.

Identifying the zone of interest protected by the Fourteenth Amendment is neitherdifficult nor controversial. To begin, [t]he clear and central purpose of the Fourteenth

Amendment was to eliminate all official state sources of invidious racial discrimination in the

States. Loving v. Virginia, 388 U.S. 1, 10 (1967) (invalidating laws prohibiting interracial

marriage). In enacting the Fourteenth Amendment, [w]hatever else the framers sought to

achieve, it is clear that the matter of primary concern was the establishment of equality in the

enjoyment of basic civil and political rights and the preservation of those rights from

discriminatory action on the part of the States based on considerations of race or color. Shelley

v. Kraemer, 334 U.S. 1, 23 (1948) (holding that courts could not enforce racial covenants on real

estate). In its simplest terms, the Fourteenth Amendment declares that the law in the States

shall be the same for the black as for the white. Brown v. Bd. of Ed., 347 U.S. 483, 492 (1954)

(declaring laws that establish separate but equal schools for black and white students

unconstitutional).

Against this historical backdrop, Plaintiffs contend that this Court must stretch the

Fourteenth Amendment to protect those who wear a snowboard. It demeans the Constitution to

suggest that the amendment that protected the interests of former slaves during Reconstruction

and James Meredith and the Little Rock Nine must be expanded to protect the interests of those

who engage in a particularized winter sport. It bears repeating that Plaintiffs, who classify

themselves as a class of people who stand sideways on a single snowboard, plead their claim

solely as a constitutional one. There is no authority holding that the zone of interest created bythe Fourteenth Amendment protects those who stand sideways on snowboards. 6 (Complaint,

5.)

6 To state the obvious, unlike race, which is an immutable characteristic that cannot be changed, Plaintiffs canchange the equipment on their feet from a snowboard to skis in a minute or two.



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In fact, few if any cases pursue the novel constitutional theory Plaintiffs ask this Court to

accept. One recent case, however, has at least considered the kind of aesthetic or recreationalinterests Plaintiffs attempt to vindicate, and concluded the plaintiff could not show prudential

standing. In Alexander v. First Wind Energy LLC, the plaintiff sued a state-sponsored energy

concern over the development of an industrial wind-energy project. 2:11-CV-00364-GZS, 2012

WL 681838, at *1 (D. Me. Feb. 28, 2012) report and recommendation adopted, 2:11-CV-364-

GZS, 2012 WL 966029 (D. Me. Mar. 21, 2012), aff'd (Oct. 23, 2012). Among her claims, the

plaintiff asserted a Fourteenth Amendment claim that she faced injury from the developments

impact on the scenic quality of the western mountains in which she lives. Id. at *5. The

Alexander court conducted a detailed prudential standing analysis and concluded that the

plaintiffs claim of an aesthetic injury did not fall within the zone of interest of the Fourteenth

Amendment:

The only federal law invoked in this case is the United States Constitution, morenarrowly the Fifth and Fourteenth Amendments, with the Fourteenth being theoperative amendment insofar as state action is concerned . . . . Alexander is

attempting to vindicate an interest in scenic beauty as a purely constitutionalright . Simply stated, the professed individual right to prevent others fromengaging in development that might spoil the scenic beauty of the westernmountains does not fall within any established zone of interest I am able toidentify emanating from the Takings Clause, Privileges and Immunities Clause,the Due Process Clause, or the Equal Protection Clause of the FourteenthAmendment.

Id. (emphasis added). Hence, the Alexander court dismissed the plaintiffs Fourteenth

Amendment claim under Rule 12 for lack of prudential standing. Id. at *5-*6; see also

Hinesburg Sand & Gravel Co. v. State, 693 A.2d 1045 (Vt. 1997) (holding that plaintiffsclaimed right to sell gravel was not within Fourteenth Amendments zone of interest).

Alexander provides this Court with guidance in analyzing whether Plaintiffs can show

prudential standing. Like Alexander, the only federal law invoked in this case is the Fifth and

Fourteenth Amendment. Like Alexanders claimed aesthetic interest, Plaintiffs seek to protect



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an aesthetic or recreational interest in wearing a snowboard while descending Altas slopes. Just

as the Alexander court concluded, this Court should find that the claimed right to snowboarddoes not fall within any established zone of interest emanating from the Fourteenth

Amendment. See id. at *5.

In sum, there is no legal authority demonstrating that the Fourteenth Amendment protects

ones right to practice a particular sport, to use certain sporting equipment or to engage in leisure

one way versus another. In short, there is no basis in the historical underpinnings of the

Fourteenth Amendment or the 150 years of jurisprudence following its enactment to support

Plaintiffs contention that the Constitution was meant to protect snowboarders. For this reason,

the Court should grant Altas motion to dismiss.

II. PLAINTIFFS CLAIM SHOULD BE DISMISSED BECAUSE THEY DO NOTCHALLENGE FINAL AGENCY ACTION.

Plaintffs claim against the Forest Service should be dismissed because they do not

challenge a final agency action by the Forest Service. And, because their claim fails as to the

Forest Service, it also fails as to Alta.

The only way this Court has jurisdiction to review Plaintiffs claim against the Forest

Service is if Plaintiffs have a justiciable claim under the APA. 7 Indeed, Plaintiffs plead their

case against the Forest Service under the APA. (Compl., 12, 50; see also Robbins v. U.S.

7 This Courts jurisdiction to review Plaintiffs claim against the Forest Service is contingent on the APA because it provides the sole waiver of sovereign immunity invoked by Plaintiffs. See 5 U.S.C. 702. Plaintiffs cite theDeclaratory Judgment Act, 28 U.S.C. 2201, and the general federal question jurisdiction statute, 28 U.S.C. 1331.See Compl. 11, Request for Relief 1. But neither of those statutes provide waivers of sovereign immunity.Fostevdt v. United States, 978 F.2d 1201, 1202-03 (10 th Cir. 1992); Wyoming v. United States, 279 F.3d 1214, 1225(10 th Cir. 2002). If Plaintiffs do not have a justiciable APA claim either because they lack prudential standing ordo not challenge final agency action their claim against the Forest Service must be dismissed under Federal Ruleof Civil Procedure 12(b)(1) because a suit against the United States cannot proceed in the absence of an expresswaiver of sovereign immunity. United States v. Mitchell, 463 U.S. 206, 212 (1983). And, if the claim is dismissedas to the Forest Service, it must also be dismissed as to Alta.



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Bureau of Land Management, 438 F.3d 1074, 1085 (10th Cir. 2006) (holding constitutional

claim against government is reviewed under the framework set forth in the APA.).

Plaintiffs do not have a justiciable claim under the APA because they do not challenge

final agency action within the meaning of the APA, 5 U.S.C. 704. 8 See also Utah Envtl.

Congress v. Russell, 518 F.3d 817, 823 (10th Cir. 2008). To constitute final agency action,

(1) the action must mark the consummation of the agencys decision making process; and

(2) the action must be one by which rights or obligations have been determined, or from which

legal consequences will flow. Pennaco Energy, Inc. v. U.S. Dept of Interior, 377 F.3d 1147,

1155 (10th Cir. 2004) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). A complaint

challenging an action that is not final agency action is not subject to judicial review and must

be dismissed. FTC v. Standard Oil Co. of California, 449 U.S. 232, 246-47 (1980); Southern

Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1158 (10 th Cir. 2013) (agency decisions that

are not final agency action are clearly not fit for judicial review).

As more fully explained below, while Plaintiffs allege that the Forest Services approval

of the Permit and Plan constitute a final agency action, both the Permit and the Plan are utterly

silent on Altas business decision regarding the use of snowboards. There is no agency action

here, much less final agency action. The decision about permissible equipment at Alta was made

by Alta, not the Forest Service. Altas business decision about snowboards use does not mark

the consummation of the agencys decision making process under the final agency action test

identified in Bennett v. Spear because there was no Forest Service decision on the issue. See 520

8 Plaintiffs also do not have a justiciable claim under the APA because they lack prudential standing for the reasonsstated above.



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U.S. at 178. Again, the decision was made by Alta, not the Forest Service. Nor under the

second element of the test has the Forest Service taken action with respect to

snowboard use at Alta through a means by which rights or obligations have been determined, or

from which legal consequences flow. Id. That Plaintiffs desire the Forest Service to regulate

Alta differently with respect to Altas business decisions does not transform Altas actions into

Forest Service final agency action under the APA. See Standard Oil, 449 U.S. at 246-47. This

Court should dismiss Plaintiffs claim against the Forest Service because they do not seek review

of the requisite final agency action that must support an APA claim. Lacking an agency action

on the single issue before the Court Altas business decision regarding the use of snowboards

at Alta Plaintiffs fail to state a claim for which relief can be granted under the APA. And,

because this claim fails as to the Forest Service, it also fails as to Alta. 9

III. ALTAS EQUIPMENT POLICY IS SIMPLY ONE OF MANY BUSINESSDECISIONS BY A PRIVATE ENTITY THAT DOES NOT INVOLVE STATEACTION AND THEREFORE IS NOT SUBJECT TO ANY LEVEL OFCONSTITUTIONAL REVIEW.

A. Generally.

Alta is a private corporation. Alta makes many business decisions about how to run its

private business. Among other things, such decisions include what services it will offer (like the

types and levels of ski instruction alpine, telemark, freeride, nordic), what food to serve in its

restaurants, what to sell in its gift shops, and what type of equipment it allows customers to use.

Altas business decision as a private entity to restrict the use of certain equipment by itscustomers including sleds, inner tubes, snowshoes, snowboards, and other unapproved devices

does not constitute state action any more than its other business decisions. Accordingly, Alta is

9 For example, the dismissal of the Forest Service would be fatal to any attempt to show that Alta is a state actor,as Plaintiffs must do to prevail on their claim.



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not a state actor, its decision to prohibit the use of snowboards is not state action, and the

Fourteenth Amendment is not implicated in any way.Private conduct is not subject to the Fourteenth Amendment's prohibitions unless the

private actor is engaged in activity deemed to be a state action. Gallagher v. Neil Young

Freedom Concert, 49 F.3d 1442, 1446 (10th Cir. 1995) (dismissing plaintiffs claim for lack of

state action); see also Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) quoting Shelley v. Kraemer,

334 U.S. 1, 13 (1948) (the Fourteenth Amendment erects no shield against merely private

conduct). The principle underlying the constitutional distinction between state and private

action is clear and informative: First, it preserves an area of individual freedom by limiting the

reach of federal law and federal judicial power. Second, it avoids imposing on the State, its

agencies or officials, responsibility for conduct for which they cannot fairly be blamed.

Gallagher, 49 F.3d at 1447 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982)

(internal citations omitted).

Additionally, unless Plaintiffs first establish state action, the Court need not reach the

Fourteenth Amendment issue raised by Plaintiffs. See Gallagher, 49 F.3d at 1457 (declining to

decide Fourteenth Amendment issue where plaintiff failed to establish state action); Am Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (the resolution of the state-action issue would

be sufficient by itself to reverse the judgment of the Court of Appeals); Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 358 (1974) (finding state regulation of private entity was not

sufficiently connected with private entitys action so as to make that action attributable to the

State for purposes of the Fourteenth Amendment and therefore not reaching the constitutional

issues).

B. The Court Must Focus on the Specific Conduct at Issue.

Determining whether there is state action begins by identifying the specific conduct of

which the plaintiff complains. Am. Mfrs. Mut. Ins. Co., 526 U.S. at 51. The purpose of this



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requirement is to assure that constitutional standards are invoked only when it can be said that

the State is responsible for the specific conduct of which the plaintiff complains. Blum, 457U.S. at 1004. Of course, the specific conduct at issue here is Altas ability to exclude any

type of skiing device that they deem creates an unnecessary risk to other skiers and/or the user of

the device, or any device they deem causes undue damages to the quality of the snow, or is not

consistent with the business management decisions. (Compl. 51.) Thus, the question becomes

whether Plaintiffs can show that Alta engaged in a state action in enforcing its equipment

requirement.

C. Alta is not a State Actor Under any Recognized Test for State Action.

1. Plaintiffs do not Satisfy the Symbiotic Relationship Test .

The Tenth Circuit uses four tests to determine whether a private entity is a state actor

such that it can be held liable for a violation of the Equal Protection Clause of the Fourteenth

Amendment. The four tests are the nexus test, the public function test, the joint action test,

and the symbiotic relationship test. Wittner v. Banner Health, 720 F.3d 770, 775 (10th Cir.

2013) (citations omitted).

Plaintiffs rely on the symbiotic relationship test as the sole basis for their state action

argument. (Compl. 57 (alleging that the Forest service entered into a symbiotic relationship

with Alta.).) 10 This test requires a showing that the state has so far insinuated itself into a

position of interdependence with a private party that it must be recognized as a joint participant

in the challenged activity. Gallagher, 49 F.3d at 1451 (citation omitted). Importantly, where

the government has not put its own weight on the side of the proposed practice by ordering it,there is no state action. Jackson, 419 U.S. at 357.

Plaintiffs do not allege (nor could they) that the Forest Service has put its own weight on

10 Plaintiffs also refer to a joint enterprise test, apparently as another name for the symbiotic relationship test. (SeeCompl. 57.) The Tenth Circuit does not recognize a joint enterprise test and refers only to the symbioticrelationship test. Hence, Alta refers only to the symbiotic relationship test. See Wittner, 720 F.3d at 775.



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the side of [the snowboard restriction] by ordering it. See id. In fact, Altas equipment

requirement that does not allow snowboards is not even something Plaintiffs allege the ForestService required, as it is not mentioned in the Permit or the Plan. (See Compl. 55.) Instead,

the Forest Service left it to Alta to determine the most appropriate way to manage uphill and

downhill travel on the mountain in a manner that was consistent with Altas business, marketing,

safety and terrain-related objectives. Critically, the Forest never ordered the snowboarding

ban and in fact, was utterly silent on the specific issue that matters to Plaintiffs the most. In

short, the Forest Service has no more insinuated itself into Altas equipment requirement

decision than it has in the scores of other business decisions Alta has the individual freedom to

make, including, for instance, about what hats to sell in its gift shops, food to sell in its

restaurants, or the types of ski instruction to offer in its ski school. See Gallagher, 49 F.3d at

1447. Without more, the Court should grant Altas motion without further constitutional

analysis.

Despite the Forest Services silence on the question of the snowboard ban, Plaintiffs

still have the temerity to allege that the Forest Service approv[ed], endors[ed], and

authorize[ed] the equipment requirement. (Compl. 28.) Assuming this allegation was

plausible under Iqbal (and it is not), 11 the allegation still is insufficient to show the level of

government participation required to show a symbiotic relationship. Action taken by private

entities, even with the approval or acquiescence of the State, is not state action. Am. Mfrs. Mut.

Ins., 526 U.S. at 52 (Supreme Court found no state action even though the state had specifically

authorized and approved the policy in question) (citations omitted); see also Blum, 457 U.S. at

1004-05 (Mere approval of or acquiescence in the initiatives of a private party is not sufficient

to justify holding the State responsible for those initiatives under the terms of the Fourteenth

11 In Iqbal, the Supreme Court required that a plaintiffs allegations at least plausibly support the asserted claims.Iqbal, 556 U.S. at 678. Here, Plaintiffs allegations that the Forest Service approved, endorsed and authorized the

ban are implausible in light of the fact that Permit and Plan are utterly silent on the topic.



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Amendment); Carlin Communication, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352,

1361 (11th Cir. 1986) (the mere approval by the [state] of a business practice of the regulatedutility does not transmute a practice initiated by the utility into state action).

Lacking evidence that the Forest Service was actually involved in the challenged

equipment requirement, Plaintiffs resort to a state action argument nearly entirely founded on the

allegation that the Forest Service issued the Permit to Alta and approved the Plan. (Compl.,

102 (Alta, the USFS, and Mr. Whittekiend are state actors because Alta operates on federal land

pursuant to its Permit and Plan approved annually by the USFS and Mr. Whittekiend . . . .).

Courts, however, routinely find no state action where the government has merely issued a permit

to use a public space. For example, in UAW, Local 5285 v. Gaston Festival, the Fourth Circuit

found that the private entity was not a state actor even though it had been issued a permit to use

public property and the city had provided the entity with police protection, traffic department

assistance, and sanitation services. 43 F.3d 902, 904 (4th Cir. 1995); see also Jackson, 419 U.S.

at 346 (finding no state action where state issued certificate of public convenience to utility);

Wagner v. Metropolitan Nashville Airport Authority, 772 F.2d 227, 229 (6th Cir. 1985) (finding

no state action where state leased airport space to private entity, emphasizing that

[c]ontemporary decisions stress the necessity of a close nexus between the state and the

challenged conduct rather than application of a mechanistic formula based on business

relationships such as the mere leasing of space by the state); Watson v. Kenlick Coal Co., Inc.,

498 F.2d 1183, 1193 (6th Cir. 1974) (Accordingly, we hold that the issuance of a permit to strip

mine to a private coal company for the purpose of enforcing that state's environmental policy is

not such state action . . . .) Thus, the Forest Services issuance of a Permit and approval of the

Plan does not establish a symbiotic relationship.

Nor is Alta a state actor simply because it is subject to some oversight by the Forest

Service. Indeed, in controlling precedent the Supreme Court has rejected such assertions in



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situations involving far more highly-regulated private entities, even where such entities provide

essential public services. In Jackson, the Court considered whether a privately-owned utility thatwas subject to extensive regulation by the state could be considered a state actor. 419 U.S. at

346. The Court held that [t]he mere fact that a business is subject to state regulation does not by

itself convert its action into that of the State . . . [n]or does the fact that the regulation is

extensive and detailed. Id . at 350. Specifically, the Court held that the termination of electric

service was not a state action even though the State had specifically authorized and approved

the general policy that permitted the private entity to terminate service. Id. at 354. At best,

Plaintiffs have merely alleged that Alta is a heavily regulated, privately owned business, an

allegation that is not sufficient to connect [the Forest Service] with [Altas] action so as to make

the latters conduct attributable to the State for purposes of the Fourteenth Amendment. See id.

at 358.

Likewise, Plaintiffs allegation that Alta pays the Forest Service a fee under the Permit

does not show a symbiotic relationship. (See Compl. 56.) Payments under government

contracts . . . are insufficient to establish a symbiotic relationship between the government and a

private entity. Gallagher, 49 F.3d at 1453. This is especially so where, as here, the benefits the

government receives are indistinguishable from those that could be obtained through contracts

generally. Id. Hence, it cannot be said that the fees paid to the Forest Service create a

symbiotic relationship. See id. 12

12 Plaintiffs may not rely on Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), a race discriminationcase, and its views regarding leasing arrangements to attempt to establish a symbiotic relationship. In that case, theSupreme Court found a private business was a state actor in part because it leased parking garage space from a stateagency. Id. at 723-25. In so holding, however, the Burton court specifically confined its holding to the facts of thatcase, announcing that its finding of state action was not a universal truth by which state leasing arrangements are

judged. Id. at 725. Equally important, the Tenth Circuit has narrowly interpreted Burton. Further, showing thatBurton was a narrow decision aimed at eradicating race discrimination and should be confined to its specific facts,the Tenth Circuit noted that [t]he present Supreme Court . . . has not found state action in any case that has reliedupon Burton. In each case in which the applicability of Burton has arisen, the Court has distinguished Burton on itsfacts as part of its justification for not finding state action. Gallagher, 49 F.3d at 1451 (citation omitted).



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For all of these reasons, Plaintiffs have failed to make allegations sufficient to establish a

symbiotic relationship between Alta and the Forest Service, and thus, the Court should dismissPlaintiffs claims without considering the Fourteenth Amendment questions posed.

2. Plaintiffs do not Meet any of the Other Tests for State Action.

While Plaintiffs fail to establish state action under the symbiotic relationship test that

they themselves selected, they also fail to show state action under the remaining three tests used

in the Tenth Circuit, that is, the nexus test, the public function test and the joint action test. To

show state action under the nexus test depends on, among other things, whether the State has

provided such significant encouragement, either overt or covert, that the choice must in law be

deemed to be that of the State. Am. Mfrs. Mut. Ins. Co., 526 U.S. at 52. As discussed above,

the Forest Service has, at most, permitted Alta the discretion to make all kinds of business

decisions regarding how to run its business, one of which involves a decision regarding approved

equipment. Indeed, Plaintiffs own allegations suggest that the Forest Service is unconcerned

with the issue of what skiing devices are permitted at ski resorts as it has presumably issued

permits to the many other ski areas on Forest Service land that permit snowboard use. (See, e.g.,

Compl. 36, 59.) Accordingly, Plaintiffs cannot show state action under the nexus test.

Similarly, Plaintiffs allegations do not support a finding of state action under the public

function test, which has been limited strictly, and covers only private actors performing

functions traditionally the exclusive prerogative of the State. Natl Broadcasting Co . v.

Communications Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir. 1988) (quoting

Jackson, 419 U.S. at 353). Here, Plaintiffs have not alleged that the operation of ski resorts is

traditionally the exclusive prerogative of the state, as such is clearly not the case. Plaintiffs do

not, because they cannot, allege that governments exclusively or even typically operate ski areas,

or that ski areas are facilities that, like voting booths or court systems are the exclusive

prerogative of the state. See id. Indeed, the resort next door to Alta is the privately-run



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Snowbird resort. (See Compl. 59, 66.) Because operating a ski resort is not traditionally the

prerogative of government, Plaintiffs cannot show state action under the public function test.Finally, Plaintiffs cannot establish the existence of state action under the joint action test,

which asks whether state officials and private parties have acted in concert in effecting a

particular deprivation of constitutional rights. Gallagher, 49 F.3d at 1453. Plaintiffs never

allege that Alta and the Forest Service have acted in concert to ban snowboards. There is no

allegation that the Forest Service evenly mildly suggests that Alta should ban snowboards. Such

silence establishes no more than the [Forest Services] acquiescence in [Altas] practices, which

is insufficient to establish state action under the joint action test. Id. at 1455.

For these reasons, Plaintiffs cannot show state action under any of the four tests. Thus,

the Court may grant Altas motion without further constitutional analysis.

IV. EVEN IF PLAINTIFFS COULD SHOW STATE ACTION, ALTA HAS ARATIONAL BASIS FOR ITS SNOWBOARD USE POLICY.

A. Generally.

Alta is not a state actor and its equipment requirement is not state action. Thus, the Court

may end its analysis here and grant Altas motion. Even if, however, Altas private policy

restricting the use of snowboards could be construed as state action, it does not violate the Equal

Protection Clause of the Fourteenth Amendment.

The Unites States Supreme Court has developed a tripartite rubric for evaluating equal

protection challenges. When a statute burdens certain fundamental rights such as voting rights

or the right to interstate travel, a court will strictly scrutinize that statute, upholding it only if

the state actor can clearly demonstrate a compelling interest. See , e.g ., Atty. Gen. of N.Y. v.

Soto-Lopez , 476 U.S. 898, 906, (1986) (right to interstate travel); Storer v. Brown , 415 U.S. 724,

756 (1974) (Brennan, J., dissenting) (voting rights). Likewise, a court will apply strict scrutiny if

a legislative distinction is based on a suspect classification such as race or national origin. See ,

e.g ., Shaw v. Reno , 509 U.S. 630, 643-45 (1993) (racial classifications). In such cases, the state



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actor must demonstrate that the challenged classification is substantially related to an

important objective. Clark v. Jeter , 486 U.S. 456, 461-62 (1988) (involving paternity suit). Allother Fourteenth Amendment controversies are subject to the third and least exacting tier of

scrutiny the rational basis test. Hodel v. Indiana , 452 U.S. 314, 331-33 (1981) (holding

statute survived rational basis review).

Here, Plaintiffs concede that their Fourteenth Amendment claim is subject to the least

exacting tier of scrutiny by arguing that [t]here is no rational relationship between Altas

equipment requirement and any claimed interest. (See Compl. 106.) This is not surprising.

Plaintiffs cannot seriously argue that wearing a particular winter sports device is a fundamental

right. See Sheskey v. Madison Metro. Sch. Dist., 2007 WL 5595895, at *16 (W.D. Wis. Sept.

26, 2007) (holding plaintiffs did not have fundamental right to participate in recreational

programs offered by private defendant). Similarly, Plaintiffs cannot sincerely contend that

those who stand sideways on a single snowboard are suspect class members. See San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, (1973) (defining a suspect class as one saddled

with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated

to such a position of political powerlessness as to command extraordinary protection from the

majoritarian political process.).

B. Plaintiffs Class-of-One Claim.

Plaintiffs allege that Defendants denied them their Fourteenth Amendment rights by

treating Plaintiffs differently from similarly situated people who wear skis. (Compl. 100,

103.) Such similarly situated claims, in this nations jurisprudence, are known as class-of-one

claims. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011)

(explaining class-of-one theory) (citing Village of Willowbrook v. Olech , 528 U.S. 562, 564

(2000)); see also Jennings v. City of Stillwater, 383 F.3d 1199, 1210 (10th Cir. 2004) (Plaintiff

does not claim that the unequal treatment of her claim was due to her membership in any



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protected class or racial or gender group. Rather, she asserts that she suffered discrimination as a

class-of-one.).13

The Tenth Circuit approaches class-of-one cases with caution because it is deeply wary

of turning even quotidian exercises of government discretion into constitutional causes.

Kansas Penn, 656 F.3d. at 1216 (citation omitted). For example, in Jennings , the Tenth Circuit

denied the plaintiffs Fourteenth Amendment claim, explaining that:

[T]he concept of a class-of-one equal protection claim could effectively provide a federalcause of action for review of almost every executive and administrative decision made bystate actors. It is always possible for persons aggrieved by government action to allege,and almost always possible to produce evidence, that they were treated differently fromothers, with regard to everything from zoning to licensing to speeding to tax evaluation. Itwould become the task of federal courts and juries, then, to inquire into the grounds fordifferential treatment and to decide whether those grounds were sufficiently reasonable tosatisfy equal protection review. This would constitute the federal courts as general-

purpose second-guessers of the reasonableness of broad areas of state and local decisionmaking: a role that is both ill-suited to the federal courts and offensive to state and localautonomy in our federal system.

383 F.3d at 1210-11.

Similarly, in Kansas Penn, the Tenth Circuit elaborated on the dangers posed by

transforming disagreements about ordinary, low-level decisionmaking into federal constitutional

claims:

These concerns are magnified with challenges to low-level government decision-making,which often involves a great deal of discretion. The latitude afforded police officers, IRSagents, university administrators, zoning officials, and other, similar government actorsnecessarily results in a sizeable amount of random variation in outcome. If eveninnocuous inconsistencies gave rise to equal protection litigation, government actionwould be paralyzed.

656 F.3d at 1216-17.

13 Class-of-one claims may be brought by groups comprised of more than one plaintiff. See , e .g. , Olech , 528 U.S. at564 (Whether the complaint alleges a class of one or of five is of no consequence because we conclude that thenumber of individuals in a class is immaterial for equal protection analysis.); see also Hayes v. City of Torrington , 2004 WL 1498135, at * 1 (D.Conn., May 26, 2004) (In their pleadings, Defendants have suggested that class ofone claims are limited to classes of exactly one person. Defendants are wrong.).



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To avoid the risk of paralysis the Tenth Circuit is concerned about, this Court should

proceed with the utmost caution in analyzing Plaintiffs claim. If Plaintiffs prevail here, who isnext to claim a constitutional right to a certain form of amusement on public lands such as

Arches National Park, Washington D.C.s Tidal Basin or the grounds of the Statue of Liberty? 14

C. Plaintiffs Cannot State a Class-of-One Claim.

1. The Similarly Situated Analysis.

To sustain a class-of-one claim, Plaintiffs must show that they have been intentionally

treated differently from others similarly situated and that there is no rational basis for the

difference in treatment. Kansas Penn, 656 F.3d at 1216. Plaintiffs cannot establish any of these

three requirements. First, to show they are similarly-situated, Plaintiffs must establish that they

are similarly situated in every material respect. Id. This is a substantial burden, requiring

Plaintiffs to demonstrate that no rational person could regard the circumstances of the plaintiff

to differ from those of a comparator. Id. at 1218; see also Cordi-Allen v. Conlon , 494 F.3d 245,

251 (1st Cir.2007) (This requirement demands more than lip service. It is meant to be a very

significant burden.)(quotation omitted)); Purze v. Village of Winthrop Harbor , 286 F.3d 452,

455 (7th Cir.2002) (requiring class-of-one plaintiff to demonstrate that the comparable properties

were prima facie identical in all relevant respects) (emphasis in original). 15

14 One need simply go to any hiking trail in Utah and see the types of routine decisions that could be challenged incourt if plaintiffs are successful in challenging Altas equipment decisions. Just to name a few examples, some trailsare for hiking only, some allow hiking and horseback riding, others allow hiking, horseback, and bicycles, and yetothers allow all of the above, plus motorcycles. To further complicate matters, the distinctions are not alwaysmotorized versus. non-motorized. For example, the famous Slickrock Trail in Moab, Utah, allows bicycles andmotorcycles, but does not allow four wheelers. There are numerous other equipment decisions made on a daily

basis, such as what types of floating devices can be used in municipal pools, what types of shoes (even down to thespecific type of spikes) that may be worn on golf courses, etc.15 Plaintiffs claim they are a victim of animus against snowboarders. This District Court has declined to use animusas a basis for a higher level of scrutiny in an equal protection analysis and still confines the analysis to the standardrational basis test. Kitchen v. Herbert, 961 F.Supp. 2d 1181; 2013 WL 6697874, at *21 (D. Utah Dec. 20, 2013).



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Plaintiffs are not similarly situated in every material or relevant respect to those who

wear skis at Alta. Plaintiffs stand sideways on a single snowboard, rather than facing forward

and directly downhill like skiers do. (Compl. 5.) While Plaintiffs minimize this distinction,

they also plead that skiers do not have the blind spot that snowboarders have. (Id. 73.)

Plaintiffs Complaint indicates that snowboarders are perceived by some as hazardous, and

according to Plaintiffs, are rightfully characterized as members of the younger generation.

(Id. 32, 83-84.) At least according to Plaintiffs, Snowboarders have their own snowboarding

counterculture distinct from skiing, and skiers and snowboarders struggle to coexist in

harmony with one another. (Id. 21, 32-33.) 16

These distinctions show that Plaintiffs have not met their substantial burden of showing

that comparators be similarly situated in all material respects. Kansas Penn, 656 F.3d at

1218. This demanding requirement is in place because a difference in treatment could

legitimately be based on a number of different factors. Id.; see also Jennings , 383 F.3d at 1213-

14 ( When multiple variables are in play, however, the difference in treatment can be the product

of a number of considerations, conscious or otherwise, many of them legitimate. ) Even relying

solely on Plaintiffs naturally self-serving allegations, one can easily identify differentiating

factors that explain allegedly dissimilar treatment. Thus, the business, demographic, cultural,

marketing and safety differences that Plaintiffs highlight in their pleadings easily justify Altas

equipment requirement. Because Plaintiffs cannot show that they are similarly-situated to the

16 Alta does not agree with Plaintiffs dramatized conclusion that a cultural conflict exists between skiers andsnowboarders. Plaintiffs pleading strategy on this point skirts the boundaries of Rule 12s requirements for settingforth plausible allegations. Iqbal, 556 U.S. at 678. Still, if there is an ounce of truth to this allegation, it simplyhighlights the fact that snowboarding and skiing are not substantially similar.



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relevant comparator, the Court should dismiss their complaint before even identifying the

rational basis for Altas equipment requirement.

a. Plaintiffs Have not Made the Threshold Showing That TheyWere Treated Differently From Others Who are SimilarlySituated.

Even if Plaintiffs could meet their heavy burden under the similarly-situated analysis,

Plaintiffs cannot show that they have been treated differently from those who ski at Alta. Like

everyone else, Plaintiffs may access Alta at any time of year, including to ride Altas chairlifts

and descend Altas slopes. That some may prefer to use a snowboard or other unapproved

device, such as sleds, inner-tubes, or snowbikes does not mean that Alta is treating these

individuals differently. Everyone is treated the same; they all must comply with Altas

equipment rules regardless of their individual preferences. As Plaintiffs cannot show that Alta

treats them differently than anyone else, they cannot sustain a claim under the Equal Protection

Clause for this additional reason.

b. Alta has a Rational Basis for its Equipment Requirement.

i. The Tenth Circuit Presumes Altas EquipmentRequirement is Valid.

Even if Plaintiffs could show that they were similarly situated and that they were treated

differently, they still cannot show that Altas equipment requirement is irrational and thus in

violation of the Fourteenth Amendment. Plaintiffs own allegations provide a rational basis for

Altas equipment requirement. Under the rational basis test, [a]n equal protection claim will fail

if there is any reasonably conceivable state of facts that could provide a rational basis for the

classification. Teigen v. Renfrow, 511 F.3d 1072, 1083 (10th Cir. 2007) (affirming Rule 12

dismissal of plaintiffs equal protection claim). In fact, in cases like Plaintiffs, the Tenth Circuit



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presumes the rationality of the conduct at issue and requires the Plaintiff to overcome the

presumption of rationality. Id . at 1086; see also Heller v. Doe, 509 U.S. 312, 320-21 (1993)

(holding plaintiffs have the burden to establish that the policy is unconstitutional and negative

every conceivable basis which might support it, whether or not the basis has a foundation in the

record.) [A] classification must be upheld against equal protection challenge if there is any

reasonably conceivable state of facts that could provide a rational basis for the classification.

Heller, 509 U.S. at 320. Defendants have no obligation to produce evidence to sustain the

rationality of [the snowboard ban], nor is its equipment requirement subject to courtroom

factfinding and may be based on rational speculation unsupported by evidence and empirical

data. Id. Moreover, a court may find a rational basis for conduct even though the defendant

did not actually articulate at any time the purpose or rationale supporting its classification.

Id. quoting Nordlinger v. Hahn, 505 U.S. 1 (1992); see also Romer, 517 U.S. at 632 ([i]n the

ordinary case, a law will be sustained if it can be said to advance a legitimate government

interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the

rationale for it seems tenuous).

ii. Plaintiffs Complaint Supplies the Rational Basis forAltas Equipment Requirement.

Here, Plaintiffs Complaint itself demonstrates that Plaintiffs cannot meet their burden of

overcoming the rationality of Altas equipment requirement. First, Plaintiffs allege that Alta

prevents the use of snowboards because its business model caters to a skier-only market.

(Compl. 73-74.) Similarly, Plaintiffs allege that Alta prevents the use of snowboards because

it prefers to maintain a skiing culture. (Id. 74.) These allegations clearly highlight Altas

business interest in maintaining a skiing culture that caters to a skier-specific market. In fact,



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Plaintiffs plead that surveys confirm that a large percentage of skiers prefer Alta because it is a

skier-only resort. Not surprisingly, Alta area businesses concluded that if customers preferred a

skier-only destination, so did the business owners. (Id. 79.) Protecting Altas business

interests provides the necessary rational basis for Altas equipment requirement.

Additionally, Plaintiffs allegations (as well as common sense) reveal that snowboarders

have a blind spot that skiers do not and some Alta users are concerned about safety in the

presence of those who snowboard. (Compl. 73, 83-84.) Safety concerns clearly constitute a

valid interest that Plaintiffs cannot overcome.

Plaintiffs also allege that Alta prevents the use of snowboards because its terrain is not

conducive to snowboards. (Compl. 74.) State actors like the government routinely make

decisions about what types of uses are suitable for public lands. It is not irrational for state

actors to determine that some winter sports equipment is more suitable than others on certain

terrain, particularly mountainous, winter terrain. Much of Altas terrain requires long, high

mountain traverses, which are difficult on a snowboard, and a number of its groomed slopes have

relatively flat traverses as compared to some other resorts. While skiers can propel themselves

on these traverses by skating and poling, snowboarders must do one of two things: (1)

maintain excessive speed in order to carry themselves over the flat traverse (since they can

neither skate nor pole and are strapped into the board), or (2) take their board off and walk or

unstrap one foot and push like a skateboard after coming to a stop on a flat traverse. Both of

these responses create safety issues that constitute a rational basis for Altas equipment

requirement.

Plaintiffs Complaint also points out that the same rational equipment distinction between



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skis and snowboards has been made by others. For example, Plaintiffs plead that snowboarding

is one of the most popular events in the Olympics. (Compl. 40.) However, of the five

Olympic snowboarding events halfpipe, slope style, snowboard cross, snowboard slalom, and

snowboard giant slalom in none of these events do those riding snowboards compete against

those riding skis. Those riding skis do compete in these same five events, but they do so

separately due to the differences in the equipment used and the nature of the sports themselves.

In short, any one of the reasons set forth in Plaintiffs Complaint support a finding of

rational basis for the equipment requirement. A concern about the impact of the use of

snowboards on business, safety, demographics, terrain, culture, or its customers is sufficient to

support the prohibition. Indeed, neither Alta nor the Forest Service needs to produce evidence

that any of these reasons are justifiable or even that those are the actual reasons, nor need there

be any evidence in the record whatsoever regarding any rational basis at all. Rather, Alta may

support its policy entirely on rational speculation unsupported by evidence and empirical data.

Heller, 509 U.S. at 320. As Plaintiffs Complaint supports a finding of numerous rational bases

for the equipment requirement, there is no equal protection violation even if the Court were to

find that that the Defendants are state actors.

iii. Plaintiffs Allegations of Animus do not Bar Dismissalof Their Complaint.

Plaintiffs portray themselves as the victims of stereotypes, prejudices, animus and

irrational fears. (Compl. 21, 75.) Based on this perceived animus, Plaintiffs allege Altas

equipment requirement is motivated by a bare desire to disadvantage . . . an unpopular group . .

. . (Id. 72.) Their pleading strategy is no doubt an attempt to shoehorn their claim into a

Fourteenth Amendment framework. See Romer, 517 U.S. at 624 (stating that a bare . . . desire



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to harm a politically unpopular group cannot constitute a legitimate governmental interest.).

Plaintiffs argument fails for numerous reasons.

First, the legal point Plaintiffs attempt to make relates to political unpopularity. See id.

As has been established, the Fourteenth Amendment was enacted to eliminate historical and

invidious racial discrimination in the States. Loving, 388 U.S. at 10. In this context, those

who snowboard can hardly claim they represent the kind of politically unpopular community that

the Constitution was designed to protect. Snowboarding is one of the most popular events in

the Olympics. (Compl. 40.) Plaintiffs allege that snowboarding is an all-American,

mainstream sport, that snowboarders comprise 40% of winter sports enthusiasts, and that

Snowboarding became the fastest-growing winter sport. (Compl. 37, 40-41.) Plaintiffs even

concede that skiers and snowboarders, as a general matter, share the mountains, including those

on public land, in harmony and without issue. (Compl. 6.)

Plaintiffs allegations of hostility are irrelevant because courts disregard such claims of

animus if there is a rational basis for the alleged conduct. In Flying J, Inc. v. City of New

Haven, the court dismissed an equal protection claim where the plaintiff pled that a regulation at

issue was maliciously and spitefully directed at plaintiff. 549 F.3d 538, 545-48 (7th Cir.

2008). In so doing, Flying J specifically held that [a]nimus comes into play only when, no

rational reason or motive being imaginable for the injurious action taken by defendant against the

plaintiff, the action would be inexplicable unless animus motivated it. Id. at 546 (quoting Lauth

v. McCollum, 424 F.3d 631, 634 (7th Cir. 2005).) The Flying J court explained that a given

action can have a rational basis and be a perfectly logical action for a government entity to take

even if there are facts casting it as one taken out of animosity. Id. at 547. Further, [i]t is only



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when courts can hypothesize no rational basis for the action that allegations of animus come into

play. Id. (emphasis added); see also Powers v. Harris, 379 F.3d 1208, 1224 (10th Cir. 2004)

(rejecting equal protection claim because we have conceived of a legitimate state interest other

than a bare desire to harm. . . .). Similarly, Plaintiffs have not met the burden of showing

Altas equipment requirement lacked a legitimate interest. (See supra, Part IV.C.b.i-ii.) For

these reasons, Plaintiffs allegations of animus are no bar to dismissal.

CONCLUSION

For the foregoing reasons, the Court should dismiss Plaintiffs Complaint with prejudice.

DATED this 21 st day of March, 2014.

RAY QUINNEY & NEBEKER P.C.

/s/ Frederick R. Thaler Frederick R. ThalerRobert O. Rice

Attorneys for Defendant Alta Ski Lifts Company



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CERTIFICATE OF SERVICE

I hereby certify that on this 21 st day of March, 2014 I caused a true and correct copy of

the foregoing MOTION TO DISMISS with the Clerk of Court using the CM/ECF system

which sent notification of such filing to the following:

Jonathan R. SchofieldPARR BROWN GEE & LOVELESS185 S State St Ste 800Salt Lake City, UT 84111

[email protected]

Michael S. AndersonPARR BROWN GEE & LOVELESS185 S State St Ste 800Salt Lake City, UT [email protected]

Rachel L. WertheimerPARR BROWN GEE & LOVELESS185 S State St Ste 800Salt Lake City, UT [email protected]

/s/ Christy McCarthy

1275757

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

alta ski resort's motion to dismiss wasatch equality lawsuit

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