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Appellate Case: 14-4152

Document: 01019632016

Date Filed: 06/03/2016

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IN THE UNITED STATES COURT OF APPEALS


FOR THE TENTH CIRCUIT
WASATCH EQUALITY, a Utah
Nonprofit Corporation; RICK ALDEN,
an individual; DREW HICKEN, an
individual; BJORN LEINES, an
individual; and RICHARD VARGA,
an individual,
Plaintiffs/Appellants,
v.
ALTA SKI LIFTS COMPANY, a Utah
Corporation d/b/a ALTA SKI AREA;
THE UNITED STATES FOREST
SERVICE, an agency of the United
States Department of Agriculture; and
DAVID WHITTEKIEND, in his
official capacity as Forest Service
Supervisor in the Wasatch-Cache
National Forest,
Defendants/Appellees.

PETITION FOR
PANEL REHEARING OR
REHEARING EN BANC

Appeal No. 14-4152

On Appeal from
The United States District Court for the District of Utah
(Civil No. 2:14-cv-00026 - Judge Dee Benson)
Jonathan R. Schofield (UT 8274)
Michael S. Anderson (UT 13976)
Rachel L. Wertheimer (UT 13893)
PARR BROWN GEE & LOVELESS
101 South 200 East, Suite 700
Salt Lake City, UT 84111
Telephone: (801) 532-7840
jschofield@parrbrown.com
manderson@parrbrown.com
rwertheimer@parrbrown.com
Attorneys for Plaintiffs/Appellants

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TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 1
A. The Panel Did Not Rule on the Issue Dismissed with Prejudice: Whether
Plaintiffs Claim Is Barred by the Property Clause; Thus, Erroneous
Precedent Bars Plaintiffs from Amending Their Pleadings .......................... 3
B.

The Panel Did Not Apply the Traditional Motion-to-Dismiss Standard,


Effectively Creating a New Standard Demanding More than Mere
Plausibility for Alleging State Action ....................................................... 4

C.

The Panel Adopted a New Requirement that a Symbiotic Relationship


Exists Only If the Operation Is Indispensable to an Entire Agency ............. 7

CONCLUSION ........................................................................................................ 10

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TABLE OF AUTHORITIES
Cases

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................7


Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assn, 531 U.S. 288 (2001) .....9
Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) ................... 6, 10, 11
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)................................5
Engquist v. Oregon Dept of Agric., 553 U.S. 591 (2008) ....................................1, 4
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442 (10th Cir. 1995)...... 6, 11
Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) .................................................6
Milo v. Cushing Mun. Hosp., 861 F.2d 1194 (10th Cir. 1988) ..................................5
Perkins v. Londonderry Basketball Club, 196 F.3d 13 (1st Cir. 1999) ...................11
Ponce v. Basketball Fed'n of Com. of Puerto Rico,
760 F.2d 375 (1st Cir. 1985)..........................................................................11
Romer v. Evans, 517 U.S. 620 (1996) .......................................................................4
U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973) ...............................................5
U.S. v. Windsor, 133 S. Ct. 2675 (2013)....................................................................4
Wittner v. Banner Health, 720 F.3d 770 (10th Cir. 2013) .........................................9
RULES
Federal Rules of Appellate Procedure 35 .................................................................. 1
Federal Rules of Appellate Procedure 40 .................................................................. 1

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Pursuant to Rules 35 and 40 of the Federal Rules of Appellate Procedure,


Plaintiffs and Appellants Wasatch Equality, Rick Alden, Drew Hicken, Bjorn
Leines, and Richard Varga (collectively, Plaintiffs or Appellants) respectfully
petition for rehearing by the Panel or en banc.
INTRODUCTION
This appeal concerns what civil-rights claimants must allege to survive
motions to dismiss. Defendants portrayal of this case as being about some
constitutional right to snowboard has confused the state-action analysis and
resulted in new procedural requirements that burden all future claimants, conflict
with other circuits, and depart from directives announced by the U.S. Supreme
Court. Additionally, by failing to reach or vacate the alternative rulings below, the
Panel left in place the District Courts only dismissal with prejudice under an
erroneous and dangerous construction of the Property Clause, which bars Plaintiffs
from further amending to cure any allegations deemed lacking at this time.
ARGUMENT
Rather than address the more substantive Equal Protection issues presented
by the appeal,1 the Panel affirmed dismissal only on the state-action issue,

The following three issues were raised in the appeal: (1) whether the District
Court erred by applying an incorrect standard of review to Plaintiffs allegations,
and thereby concluding that Plaintiffs insufficiently alleged state action; (2)
whether the District Court erred by applying the limited reasoning in Engquist v.
Oregon Dept of Agric., 553 U.S. 591 (2008), from the public-employment context
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concluding that Plaintiffs could not plausibly allege the snowboarder ban may
constitute state action. [Opinion at 5, a copy of which is attached as Exhibit 1.]
And by avoiding the District Courts alternative rulings, the Panel left intact
erroneous and expansive precedent precluding any Equal Protection challenge
where the government couches conduct as a land-use decision. The Panel also
passed on the rare opportunity to address this unique case and controversy
involving allegations of animus under rational basis, declining to shed light on this
developing area of Equal Protection jurisprudence.
Absent further action by the Panel, this Court should rehear Plaintiffs
appeal en banc to consider the effect of the opinion, which: (1) affirmed a single
alternative ruling of dismissal without prejudice while never reaching or vacating
the ruling that was with prejudice; (2) created a new pleading standard that
demands more than mere plausibility; and (3) adopted a new requirement that a
symbiotic relationship exists only if revenue is indispensable to an entire
governmental agency. Each is further discussed below in turn.

to any government action related to the management of public lands, and thereby
concluding that Plaintiffs claim is barred by the Property Clause; and (3) whether
the District Court erred by applying an incorrect standard of review to Plaintiffs
allegations, as well as by rejecting Plaintiffs animus allegations and arguments,
and thereby concluding that Plaintiffs failed to state an Equal Protection claim.
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A. The Panel Did Not Rule on the Issue Dismissed with Prejudice:
Whether Plaintiffs Claim Is Barred by the Property Clause; Thus,
Erroneous Precedent Bars Plaintiffs from Amending Their Pleadings
The Panel did not address the one issue dismissed with prejudice,
concluding that, because its state action ruling controls all issues on appeal, we
decline to address [Plaintiffs] challenges to the district courts alternative rulings.
[Opinion at 15.] But this Court must either reach or vacate the District Courts
Property Clause ruling or Plaintiffs will be foreclosed from amending their
complaint to provide additional evidence of the Forest Services involvement in the
discriminatory conduct.
Moreover, the District Court created precedent that wrongfully prevents
claimants from challenging any discrimination on federal land so long as the
government claims the conduct relates to a land-use decision. [Joint Appendix
(JA) 418-23.] An issue of first impression, the District Court misapplied U.S.
Supreme Court authority and created conflicting law by applying limited reasoning
from the public-employment context to any government action involving publicland management. [Id. (applying Engquist v. Oregon Dept of Agric., 553 U.S.
591 (2008)).] No court has ever extended Engquist this far to foreclose all classof-one claims in this context. There is simply no authority supporting such a
sweeping ruling. Plaintiffs presented a compelling appeal as to why the District
Courts Property Clause ruling should be reversed, and those arguments should be
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addressed by this Court. [See Appellants Opening Brief at 35-40; Reply Brief at
12-17.] Plaintiffs therefore request that the District Courts Property Clause ruling
be reversed or vacated.
It is should also be noted that the Panel never reached how allegations of
animus should be analyzed in rational-basis cases. The District Court held that
where . . . there are multiple grounds supporting a rational basis for Altas skiersonly equipment restriction, Plaintiffs[] allegations of animus are irrelevant to the
discussion. [JA 429 (emphasis added).] The U.S. Supreme Court has had few
opportunities to address such fact patterns. See, e.g., U.S. v. Windsor, 133 S. Ct.
2675, 2693 (2013); Romer v. Evans, 517 U.S. 620, 634 (1996); City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 450 (1985); U.S. Dept of Agric. v. Moreno,
413 U.S. 528, 533 (1973). Judge Holmes addressed the issue in a concurring
opinion, but this Court has never directly addressed it. Bishop v. Smith, 760 F.3d
1070, 1096-1109 (10th Cir. 2014) (Holmes, J., concurring). This Court should
provide guidance in this important area of Equal Protection jurisprudence.
B. The Panel Did Not Apply the Traditional Motion-to-Dismiss Standard,
Effectively Creating a New Standard Demanding More than Mere
Plausibility for Alleging State Action
The state-action doctrine exists both to screen cases where the government
should not be liable for private conduct and to prevent the government from hiding
behind purportedly private actors. The government cannot delegate acts it cannot
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do itself into the hands of others. Milo v. Cushing Mun. Hosp., 861 F.2d 1194,
1197 (10th Cir. 1988) (holding that the government cannot escape liability by
delegating responsibility to another [private] party). This determination is a factintensive inquiry unsuited for motions to dismiss. Gallagher v. Neil Young
Freedom Concert, 49 F.3d 1442, 1448 (10th Cir. 1995). As the U.S. Supreme
Court has instructed, the true nature of the States involvement may not be
immediately obvious, and detailed inquiry may be required in order to determine
whether the test is met. Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)
(citing Burton v. Wilmington Parking Authority, 365 U.S. 715, 722-23 (1961)
(Only by sifting facts and weighing circumstances can the nonobvious
involvement of the State in private conduct be attributed its true significance.)). If
civil-rights claimants must establish state action before discovery, shocking
governmental abuses may result.
By disregarding the instruction that a complaint need only call for enough
fact to raise a reasonable expectation that discovery will reveal evidence, the
District Court, as affirmed by the Panel, essentially adopted a summary-judgment
standard for state-action cases by concluding that, despite all of the facts proffered
by Plaintiffs, it simply was not plausible that the Forest Service had any
involvement with Altas snowboarding ban. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007). But Plaintiffs have provided a litany of concrete factual
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allegations, including statements by Altas General Manager that the Forest


Service approves of the ban and that Alta derives its authority for the ban under the
annual Plan developed with and by the Forest Service. [Opinion at 8.]
While the District Court overlooked many of these allegations (and even
construed some in favor of Defendants), the Panel noted some allegations but still
deemed them insufficient. Because civil-rights claimants can rarely provide proof
of coordinated conduct before discovery, the standard now adopted makes it
virtually impossible for claimants to survive motions to dismiss based on state
action through otherwise private parties. [A] well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely. Twombly, 550 U.S.
at 556 (internal quotes omitted). On motions to dismiss, claimants will always lack
some crucial information about the true nature of any relationship between the
government and the offending private party. Thus, the proper standard merely
requires that state action could plausibly exist if the allegations are presumed true
and all reasonable inferences are construed in favor of the claimants.
Discovery in this case would confirm the Forest Service has more to do with
the Ban than it claims. Even without discovery, public documents demonstrate the
Forest Service is heavily involved in policies at other ski areas operating under
permits similar to Altas, such as the Forest Services role in lifting Aspens
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snowboarding ban. [Exhibit 2.] The Forest Service was also recently involved in
developing and releasing Brightons (a neighboring ski resort to Alta) uphill-travel
plan. [Exhibit 3.] Such facts demonstrate Forest Service involvement in the
decision-making process for traffic flow and equipment use at ski resorts on
federal land. Such publicly known involvement supports, at a minimum, a
plausible inference that the Forest Service did more than merely acquiesce to
Altas desires to ban snowboarders. As alleged in the Complaint, the Forest
Service endorses, authorizes, allows, approves, and enforces Altas
snowboarder ban. [JA 11, 14, 16, 20-21.] These statements were more than
conclusory allegations and were supported by a host of facts set forth in Plaintiffs
briefs. [Opening Brief at 9-11, 25-27.]
C. The Panel Adopted a New Requirement that a Symbiotic Relationship
Exists Only If the Operation Is Indispensable to an Entire Agency
Turning any one factor into a necessary component of state action creates a
dangerous loophole for governmental discrimination. If an agency believes state
action exists only when its operations are an indispensable element to its success,
then it can freely delegate otherwise unconstitutional conduct to any willing
business partner so long as the delegated operation never become indispensable
to the entire agency. In this situation, no claimant could survive a motion to
dismiss no matter how tangled and interrelated the relationship between the
government and the purportedly private actor.
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Plaintiffs allegations here support a plausible inference of state action under


the symbiotic-relationship test, which does not myopically focus on Altas creation
and enforcement of the Ban but instead properly considers the broader
entanglement of Alta and the Government. The symbiotic-relationship (or
entwinement) analysis starts by asking whether and to what extent the states
relationship with the private actor goes beyond the mere private [conduct].
Wittner v. Banner Health, 720 F.3d 770, 778 (10th Cir. 2013) (quotations omitted)
(quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assn, 531 U.S. 288,
299 (2001)).
Plaintiffs set forth a mass of factual allegations detailing the commingled
responsibilities of Alta and the Government. [Id.] In order to find that state action
was still lacking, the Panel artificially framed indispensability to distinguish
Burton and focused on only a single fact: whether Altas operations are
indispensable to the entire Forest Service. [Opinion at 10-11.] But in Burton, a
single coffee shop was not indispensable to the entire Wilmington Parking
Authority. Burton, 365 U.S. at 722-24. Instead, the profits from that single coffee
shop was indispensable to only that single parking structure. Id. at 723-24.
Similarly, the profits from Altas operations as a ski-only mountain are
indispensable to both the ski-resort operations under the Forest Services Permit
and the Forest Services management of the Wasatch-Cache National Forest.
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The Panels application of the indispensability prong creates a conflict in


this Circuit and among other Circuits. See Gallagher v. Neil Young Freedom
Concert, 49 F.3d 1442, 1452-53 (10th Cir. 1995) (analyzing whether the profits
generated from the concert at issue were indispensable to the University when
compared with profits generated from the concert center at the University of Utah,
not the entire University or even the entire State Education System); Ponce v.
Basketball Fed'n of Com. of Puerto Rico, 760 F.2d 375, 381 (1st Cir. 1985) (The
restaurants racially discriminatory policy [in Burton] was acknowledged to be
indispensable to the success of the governments joint venture with the private
party.); Perkins v. Londonderry Basketball Club, 196 F.3d 13, 22-23 (1st Cir.
1999) (assessing whether conduct was indispensable to the Towns success vis-vis the venture).
Finally, the Panel found that Plaintiffs did not allege that the Forest Service
participated in the funding, creation, and financial structure of the ski area and then
simply contracted the management responsibilities to a private corporation, as the
public trust did in Milo. . . . Rather, the facts in the compliant suggest that the
Forest Service merely leases federal land to Alta. [Opinion at 11-12.] Here too
inferences were construed in favor of the moving party without allowing for
discovery. If discovery had occurred, Plaintiffs would have been able to
conclusively establish that the Forest Service participated in the funding, creation,
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and financial structure of the ski area. For example, it is common knowledge that
Alta was founded by the Forest Service.2
CONCLUSION
Plaintiffs respectfully request that, at a minimum, the District Courts
Property Clause ruling be reversed or vacated so that Plaintiffs will not be
precluded from amending their complaint to further support state action. Plaintiffs
also request that this Court consider the state-action issue and grant Plaintiffs
request for rehearing en banc.
RESPECTFULLY SUBMITTED this 3rd day of June 2016.
PARR BROWN GEE & LOVELESS

/s/ Jonathan R. Schofield


Jonathan R. Schofield
Michael S. Anderson
Rachel L. Wertheimer
Attorneys for Plaintiffs/Appellants

In the early 1930s, the Forest Service began searching for areas to develop for
recreational skiing, retained Alf Engen to explore possible locations, and later
accepted his recommendation to develop a ski resort at Alta. A Brief History of
Altas Chair Lifts, ALTA HISTORICAL SOCIETY,
http://www.centralpt.com/databaseindshowitem.aspx?id=71998&oid=490039&pid
=32629 (last visited June 3, 2016).
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CERTIFICATE OF DIGITAL SUBMISSION


I hereby certify that with respect to the foregoing:
(1)

all required privacy redactions have been made per 10th Cir. R. 25.5;

(2)

if required to file additional hard copies, that the ECF submission is


an exact copy of those documents;

(3)

the digital submissions have been scanned for viruses with the most
recent version of a commercial virus scanning program, Symantec
Endpoint Protection, Version 12.1.5337.5000, and according to the
program are free of viruses.

/s/ Jonathan R. Schofield


Jonathan R. Schofield

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CERTIFICATE OF SERVICE
PETITION FOR PANEL REHEARING OR REHEARING EN BANC
I hereby certify that on June 3, 2016, I electronically filed the foregoing
using the Courts CM/ECF system, which will send notification of such filing to
the following:

Frederick Roger Thaler, Jr.,


Robert O. Rice
Calvin R. Winder
RAY QUINNEY & NEBEKER
36 South State Street, Suite 1400
Salt Lake City, Utah 84111
Carlie Christensen
Jared C. Bennett
OFFICE OF THE UNITED STATES
ATTORNEY DISTRICT OF UTAH
185 South State Street, Suite 300
Salt Lake City, Utah 84111

/s/ Jonathan R. Schofield


Jonathan R. Schofield