Memorandum in Opposition of Motion To Dismiss Lawsuit Between Wasatch Eqaulity and Alta

J onathan R.
Schofield (8274)
Michael S. Anderson (13976)
Rachel L. Wertheimer (13893)
PARR BROWN GEE & LOVELESS
185 South State Street, Suite 800
Salt Lake City, UT 84111
Telephone (801) 532-7840
Facsimile (801) 532-7750

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

WASATCH EQUALITY, a Utah Nonprofit
Corporation; RICK ALDEN, an individual;
DREW HICKEN, an individual; BJ ORN
LEINES, an individual; and RICHARD
VARGA, an individual,

Plaintiffs,

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.

COMBINED MEMORANDUM IN
OPPOSITION TO BOTH DEFENDANTS
MOTIONS TO DISMISS

Case No. 2:14-CV-00026 DB

J udge Dee Benson

(ORAL ARGUMENT REQUESTED)

Plaintiffs Wasatch Equality, Rick Alden, Drew Hicken, Bjorn Leines, and Richard Varga
(collectively, Plaintiffs), through their undersigned counsel, respectfully submit this Combined
Case 2:14-cv-00026-DB Document 29 Filed 05/13/14 Page 1 of 53
Memorandum in Opposition to Both Defendants Motions to Dismiss, responding
simultaneously to each Motion to Dismiss (Motion or, collectively, Motions) filed separately
by Defendant Alta Ski Lifts Company (Alta) and by Defendants United States Forest Service
(USFS) and David Whittekiend (USFS Supervisor) (The USFS and USFS Supervisor may
be referred to collectively as the Government, or collectively with Alta as Defendants.).

TABLE OF CONTENTS

I. INTRODUCTION ...................................................................................................................... 3
II. FACTUAL BACKGROUND ................................................................................................... 7
A. History of Snowboardingin General and at Alta .......................................................... 7
B. The Uniqueness of Alta, and Altas Relationship with the USFS ................................. 10
C. Altas J ustifications for the Ban Are Nothing More than Pretext for Animus towards
Snowboarders from its Ownership, Management, and Customers ................................ 12
D. Alta Has No Rational Basis for Excluding Snowboarders ............................................. 16
III. ARGUMENT ......................................................................................................................... 18
A. Under the Applicable Standard of Review, the Complaint States a Plausible and
Factually-Supportable Cause of Action that Withstands Defendants Motions ............ 18
B. This Court May Reach the Merits of Plaintiffs Claim .................................................. 20
1. This Court Has J urisdiction Under 28 U.S.C. 1331 .................................................... 20
2. The Government Has Waived Sovereign Immunity ...................................................... 22
3. Plaintiffs Have Standing ................................................................................................ 28
C. Plaintiffs Have Stated a Claim for Relief Against Defendants ...................................... 32
1. Plaintiffs Allegations Satisfy State Action ................................................................... 33
2. Plaintiffs Have Stated a Claim Under Equal Protection .......................................... 42
IV. CONCLUSION...................................................................................................................... 53

2
I. INTRODUCTION
At nearly every ski resort in the world, skiers and snowboarders coexist and thrive
together. This was illustrated on the recent cover of the November 2013 Freeskier Magazine,
featuring a photograph of three professional athletes, two skiers and a snowboarder, who had the
following to say in the corresponding article:
I enjoy riding with snowboarders a lot. I think it really helps diversify your
skiing to see it from a different perspective. . . . Sometimes egos get in the
way with the whole skier/snowboarder thing, but in my eyes we all do the
same thing for the same reasons. J ossi Wells (professional skier)

Ive never had a problem with skiers, it makes no difference to me whats on
your feet. What matters is what kind of person you are. . . . We all share a
similar passion, why not do it in peace. J ohnnie Paxson (professional
snowboarder)

Ski/snowboard beef is so 2000. Gus Kenworthy (professional skier)

[Comp. 7 (quoting Freeskier Magazine (Nov. 2013).]
These sentiments apparently do not resonate at Alta, which has created, fostered, and
encouraged hostile and divisive skier-versus-snowboarder attitudes by adopting and enforcing an
anti-snowboarder policy and snowboarding ban (Ban). Adopted as a result of animus,
stereotypes, and other illegitimate considerations harbored by Alta against the type of people
believed to constitute snowboarders as a group, the Ban arbitrarily deprives individuals of their
right to access public land at Alta on the same terms as all others that are similarly situated.
Alta is one of only three ski resorts worldwide that prohibits snowboarding, and the only
resort that does so on public land. Alta exists solely by the grace of the Government, operating
under a USFS Ski Area Term Special Use Permit (Permit) that mandates the lands and waters
covered by this permit shall remain open to the public for all lawful purposes. [Id. 47, 53
3
(emphasis added).] Because Alta operates on public land, the Permit should be construed
broadly to favor freedom and maximum public use. And, while the Ban might be legally
permissible at resorts operating on private land, it has no place at resorts operating on public land
belonging to the people.
Accordingly, Plaintiffs challenge the Ban as violating the Equal Protection Clause in the
Fourteenth Amendment to the U.S. Constitution, as applied to the federal government through
the Due Process Clause in the Fifth Amendment (Equal Protection). Plaintiffs allege that the
Ban arbitrarily classifies and excludes snowboarders from the use and enjoyment of public land
on which Alta operates as a result of animus against snowboarders and without rationally
furthering any legitimate governmental interest. Regardless of whether a fundamental right or
protected class has been targeted by discrimination, Equal Protection guarantees fairness under
the law by demanding that similarly situated people are treated alike unless the governmental
discrimination is, at a minimum, rationally related to some legitimate governmental interest.
Because of the complex and entangled relationship between Alta and the Government,
Defendants must obey the same rules as other government actors, including Equal Protection
principles. On its face, the Ban classifies snowboarders and excludes them from the public land
at Alta unlike how skiers have been treated. Notwithstanding the Governments knowledge of
the Ban, the Government continues to approve Alta's Winter Site Operation Plan (Plan), under
which Alta purports to enforce the Ban. By failing to lift the Ban, the Government approves the
exclusion of a significant portion of the skiing population from public land that shall remain
open to the public for all lawful purposes under the Permit. While they may have an interest in
safety generally, Defendants cannot show that the Ban rationally furthers any specific safety
4
interestindeed, Plaintiffs have alleged and can prove precisely the opposite. Defendants also
may have certain legitimate business interests, but the interests offered by Defendants here are
either false, illegitimate, or not rationally related to the Ban against snowboarders. Thus,
Plaintiffs will show that the justifications offered by Defendants to support the Ban are merely
pretext for the animus towards a certain group of people that actually motivated the Ban.
Animus is inherently irrational and can never support governmental discrimination.
Defendants raise a number of technical arguments as to why the Court should not reach
the merits of this case, which fail for relatively basic reasons. First, this Court has jurisdiction
over Plaintiffs Equal Protection claim arising under the U.S. Constitution pursuant to 28 U.S.C.
1331. Second, the Government has waived its sovereign immunity because the Administrative
Procedures Act provides a general waiver for all claims arising under the U.S. Constitution
regardless of whether there has been final agency action (but even assuming final agency action
is required, it has been met). Third, Plaintiffs have standing because their claim that they have
not been treated equally to those similarly situated at Alta falls squarely within the zone of
interests protected by Equal Protection.
Defendants substantive attack of Plaintiffs Equal Protection claim also fails. The
allegations in the Complaint, accepted as true under the applicable standard of review,
sufficiently state that Defendants conduct constitutes state action that arbitrarily discriminates
against Plaintiffs without any rational relationship to a legitimate government interest. First, the
complex relationship between Alta and the Government, including the latters oversight and
control over the former, are so intertwined that state action is satisfied under the joint-action,
symbiotic-relationship, nexus, and public-functions tests. Indeed, as declared on billboard-sized
5
maps throughout Alta adjacent to prominently featured USFS and Alta logos, Alta Ski Area and
the Uinta-Wasatch-Cache National Forest [are] PARTNERS IN SKIING. [See Photographs of
USFS-approved Alta Signs and literature, attached hereto as Exhibit 1.] Second, Plaintiffs
allegations show that the Ban arbitrarily classifies and excludes specific people from Alta based
on animus and other illegitimate stereotypes without rationally furthering a legitimate state
interest. Whether their Equal Protection claim is considered under class-based or class-of-one
theories, Plaintiffs have stated a valid claim for relief and have satisfied their pleading burden
here.
Although Alta would have the Court believe that only racial discrimination is worthy of
Equal Protection, courts have been refining the true meaning of Equal Protection for over a
century, as its basic tenets are applied in various contexts. Indeed, Equal Protection has long
been understood to protect all people equally from arbitrary and irrational classification and
discrimination by the Government and its actors.
This case is not about snowboards. Nor is it about skis. Indeed, it has little to do with
equipment at all. At its heart, this case is about Alta and the Government arbitrarily classifying
groups of people based on animus and other stereotypes and excluding those considered
undesirable from benefits freely enjoyed by all others without giving any rational justification.
In this case, Defendants have transformed the public land at Alta into a private country club
controlled by some individuals with exclusive, elitist, and discriminatory views. Defendants
discretion, however, is bounded by the simple requirement that every state action must be
rationally related to some legitimate interest.
6
The classification is arbitrary. The Ban irrational. Not a single interest has been
identified that Plaintiffs have not previously declared they would disprove. As a result,
Defendants Motions should be denied.
II. FACTUAL BACKGROUND
Plaintiffs Complaint consists of 112 paragraphs that detail and describe the factual and
legal support for their Equal Protection claim. The Statement of Facts in Altas Motion, which
it claims are based on Plaintiffs Complaint, misstate Plaintiffs case, omitting key facts and
misrepresenting others. [Alta Mot. 3.] To the extent necessary, Plaintiffs invite the Court to
review the Complaint in its entirety and, in deciding any particular issue raised by the Motions,
rely on what Plaintiffs actually allege. A copy of Plaintiffs Complaint is attached hereto as
Exhibit 2. For purposes of summarizing the Complaints allegations relevant to the Defendants
Motions, Plaintiffs submit the following factual summary:
A. History of Snowboardingin General and at Alta
Modern snowboarding, inspired by skiing, skateboarding, and surfing, began in the 1970s
when several companies began manufacturing snowboards for public sale and use, but it was not
until the 1980s that snowboarding gained momentous popularity, inspiring its own movement
within the world of skiing and becoming its own counterculture. [Compl. 29-30.] Some
skiers, viewing themselves as more sophisticated and affluent, bristled at this snowboarding
counterculture, which brought with it a particular style, attitude, dialogue, dress, and equipment.
Snowboarders were often stereotyped as immature, inexperienced, and reckless. Some skiers
disliked snowboarders and opposed their infiltration into the ski resorts and ski culture. As a
result, snowboarders were initially banned from many ski resorts. [Id. 32.] In the early and
7
mid-1980s, only seven percent of ski resorts in the United States allowed snowboarding, and
some required snowboarders to undergo a skills assessment prior to being allowed on a chairlift.
[Id. 31.]
Ski resorts, however, began opening their terrain to snowboarders as they faced a
growing number of customers who wanted to snowboard. As snowboarders equipment and
skills improved, insurance companies began insuring resorts for snowboarders as well as skiers.
Interacting more regularly with snowboarders, skiers became more comfortable with
snowboarding, ski schools began offering snowboard instruction, and snowboarders gained
acceptance as part of the winter-sports community throughout much of the world. [Id. 34.]
Throughout the 1990s, snowboarding became one of the fastest-growing winter sports,
increasing in popularity among all demographics regardless of age, sex, or ability. [Id. 37.] In
1994, snowboarding was officially recognized as an integral part of the skiing community when
the National Ski Association became the United States Ski and Snowboard Association,
overseeing the U.S. Ski and Snowboard Teams. [Id. 39.] In 1998, snowboarding became an
official Olympic sport, and snowboarders from around the world competed in the halfpipe and
giant slalom events at the Nagano Olympic Games. In the 2002 Salt Lake Olympic Games,
snowboarding was one of the more-popular events, and members of the U.S. Snowboarding
Team swept the gold, silver, and bronze medals in the mens halfpipe and won the gold medal in
the womens halfpipe. For many, snowboarding had become mainstream. [Id. 40.]
Snowboarders now comprise approximately forty percent of the total ski and snowboard
population in the United States (during the 2012-13 season there were approximately 7.4 million
snowboarders and 11.3 million skiers). [Id. 41.] As skiers and snowboarders shared the terrain
8
at most resorts, they demonstrated that they could coexist and that there was no longer any
legitimate reason to prohibit snowboarding at ski resorts. [Id. 34.]
Notwithstanding these advances, outdated or outright discriminatory perceptions and
attitudes continue among some skiers, which are exploited by a few resorts that continue to
prevent snowboarders and their counterculture from having a presence on certain mountains.
These divisions continue, facilitating and provoking animosity and hostility between skiers and
snowboarders. Today, only three resorts in North America prohibit snowboarders: Deer Valley
(Utah), Mad River Glen (Vermont), and Alta. [Id. 42.]
Alta, however, has not always prohibited snowboarders. In the early 1980s, Alta allowed
snowboarders to ride its chairlifts. In fact, Plaintiffs Hicken and Varga were among some of
Utahs first snowboarders to snowboard at Alta. Sometime in the early to mid-1980s, Alta
summarily decided it would no longer allow snowboarders to access its terrain or ride its
chairlifts and instituted the Ban. [Id. 61.] According to Gus Gilman, Director of Alta Ski
Patrol:
We allowed snowboards when nobody else did, and then we had a hard time with
. . . the early snow boarders, it was a developing sport. There were no edges on
snowboards, there was no . . . snowboards are really only good for powder skiing,
and then the advent of Burtons first board with metal edges and, you know, hard
bindings and things like that really took snowboarding to a level where it became
acceptable at other ski areas, and in that time Alta had had snow boarders for
awhile [sic] and that we couldnt keep them out of the closed areas and they were
constantly . . . because the boards were suitable for . . . werent really suitable for
hard snow, and so Chic [Morton, Altas former General Manager,] got mad one
day and said, Thats it. No more snow boarders. And then now we have . . . I
bet we get ten letters a week from people that really like coming to Alta because
there are no snow boarders here. Theres not a blind spot that people talk about,
and theres not the . . . you know theres just a different attitude from people, and
you can go to another ski area and get that feeling, or you can come to Alta and
go . . . and a lot of people dont know that theres no snow boarders and then
about half way through the day they realize, man theres no snow boarders here,
9
and its a great deal for them and now we sort of have a customer base of people
who prefer to ski where theres no snowboarding.

[Id. 73 (quoting The Alta Experience, Interview with Gus Gilman by KUED (2008)).] In the
following years, efforts were made to reopen Alta to snowboarders. In the late 1980s, various
individuals contacted Altas General Manager at the time, Chic Morton, to discuss the possibility
of allowing snowboarding at Alta. Mr. Morton responded to these requests by declaring that
anyone who uses the words rip, tear, or shred will never be welcome at Alta. On another
occasion, Mr. Morton stated that as long as [he was] alive snowboarders will never be allowed
at Alta. [Id. 76.] Thirty years later, Alta still does not welcome snowboarders, refusing to let
snowboarders ride its chairlifts and access its terrain. [Id. 62.]
B. The Uniqueness of Alta, and Altas Relationship with the USFS
Alta consists of 2,130 skiable acres, 1,802.7 of which (85%) are located on USFS public
land. [Id. 43.] The public land on which Alta operates is uniquely nestled at the top of Little
Cottonwood Canyon, and Altas snow and terrain make it unlike any other resort. [Id. 44.] At
elevations between 8,530 and 10,550 feet, the north-facing slopes of Altas mountains showcase
some of the best terrain in the entire region and typically receive more snow than any other Utah
resort, averaging 560 inches annually of Utahs greatest snow on earth. [Id. 45.] Indeed,
even Altas General Manager, Onno Wieringa, has stated that, while there may not be much
difference in the quality of snow at other resorts (even less than a mile away at Snowbird), there
is no denying Alta averages more snow per year than its nearest neighbor, or anywhere else in
Utah: It just snows more right in this little corner of the Wasatch than it does anywhere else.
[Id. 46 (quoting Linda Hamilton, Secret Ingredient, Storm Patterns Make Alta Special, Deseret
News, J an. 19, 1989).]
10
Alta operates under a USFS Ski Area Term Special Use Permit, which authorizes Alta to
operate a resort on public land subject to the provisions of the Permit. [Id. 47.] The Permit
requires that the lands and waters covered by this permit shall remain open to the public for all
lawful purposes. [Id. 53.] Pursuant to the Permit, the Government must approve annually
Alta's Plan, setting forth Altas operations and management plan for each year. [Id. 48.] As
the owner and Permit holder of the land on which Alta operates, the Government exercises
substantial control over Altas use of public land. For instance, the Government approves nearly
every action taken by Alta on USFS land, including but not limited to signage, ski routes,
avalanche control, and general safety. The Government also has authority to check and regulate
the type, cost, and adequacy of services provided to the public, including the price of a lift ticket,
and to require that such services conform to certain standards. [Id. 55.] In addition to
exercising substantial control over Altas use of federal land, the Government receives a fee
based on a percentage of revenue from lift-ticket sales and ski-school operations. Alta paid the
Government $473,792 in 2009, $449,005 in 2010, $471,449 in 2011, and $304,396 in 2012,
which may be a relatively small portion of the overall USFS budget, but is a significant portion
of the revenue the Government receives within the Uinta-Wasatch-Cache National Forest. [Id.
56.]
The Permit and Plan themselves not only contain multiple provisions where the
Government burdens Alta with operational requirements, but also require the Government to
maintain control over and monitor Altas operations on public land for the benefit of the public.
Examples of Alta/Governmental interdependence too numerous to recite in this section are set
forth in a separate table, attached hereto as Exhibit 3 and incorporated herein. Thus, the
11
Government has entered into a joint enterprise and a symbiotic relationship with Alta in its
ski-resort business. [Compl. 57.]
C. Altas Justifications for the Ban Are Nothing More than Pretext for Animus
towards Snowboarders from its Ownership, Management, and Customers

Altawith Government approval, endorsement, and authorizationenforces its Ban,
openly declaring that snowboarders are not welcome at Alta. Altas trail map prominently states,
adjacent to the USFS logo, that Alta is a skiers mountain, Snowboarding is not allowed.
Signs in Altas ticket windows prominently declare in large, bold letters: No Snowboards. A
copy of Altas trail map and other Alta signs showing the USFSs fingerprint on Altas
operations are attached as Exhibit 1. Altas Ban unlawfully discriminates against snowboarders
by denying them the same access freely granted skiers to the public land on which Alta operates.
[Compl. 60, 63-65.] According to Altas General Manager, Onno Wieringa, Altas Ban works
for Alta because we like it, our skiers like it, our owners like it, and the Forest Service says its
OK. [Id. 94.]
Ostensibly, Alta claims it is entitled to enforce the Ban under a provision in the Plan
which states that uphill and downhill travel must be accepted and approved by Alta and 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 damages
to the quality of the snow, or is not consistent with the business management decisions.
1
[Id.
1
Prior to 2000, the Plan language simply stated that Alta can reserve 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. It is
believed that Alta modified the language of the Permit to include the business management
12

51-52.] The USFS is aware of Altas Ban, and nevertheless approves Altas Plan. [USFS Mot.
4.] By approving Altas Plan annually, the USFS allows Alta to exclude snowboarders from
using public land and enforces the Ban, notwithstanding the Permits inclusive language that the
lands and waters covered by this permit shall remain open to the public for all lawful purposes,
thereby excluding a particular class of individuals from use and enjoyment of this public land.
[Compl. 58.]
While Altas current reason for its Ban remains unknown, Plaintiffs cited several
justifications for the Ban that Alta has alluded to in the past, such as Altas claims that it is
attempting to maintain a skiing culture, that its terrain is not conducive to snowboards,
2
and
that its business model caters to a skier-only market. However, Plaintiffs vigorously dispute the
veracity and rationality of each of these justifications, alleging that they are nothing more than
pretext. Indeed, Plaintiffs allege that Altas Ban is based on antiquated stigmas and stereotypes
that snowboarders are immature, inexperienced, reckless, disrespectful, and/or out of control,
among other things. [Id. 67.] As alleged in the Complaint, Altas ownership and management
implemented (and continue to maintain) the Ban as a result of stereotypes, prejudices, animus,
and irrational fears held by Altas ownership, management and customers towards snowboarders
and snowboarding culture. [Id. 72.] As alleged, in enacting its Ban, Alta was motivated by a
decision language in an effort to further enforce the Ban, coincidentally at the same time the
USFS was pressuring Aspen ski resort to lift a similar snowboarding ban.

2
To the extent Alta claims snowboarders are not capable of accessing some of Altas terrain (an
assertion Plaintiffs dispute), Alta demeans snowboarders. Furthermore, if this were the true
rationale, Alta would similarly prohibit any skiers not able to access this terrain due to their
ability. This is not the case.
13

bare desire to disadvantage what Alta viewed (and continues to view) as an unpopular group, by
denying snowboarders access to Alta. [Id. 72-75.]
Regardless of what Altas ownership and management think, or proclaim to think,
of snowboarders, Alta impermissibly and knowingly serves as a conduit for animus
towards snowboarders held by its customers. [Id. 83-85.] There is no question that
there is a group of Alta skiers who do not like snowboarders and who ski at Alta because
of its Ban. [Id. 77.] David Quinney, an owner of Alta, stated:
I know that management up there now are just holding the door against letting
snowboarders in. You know? Theyre just being really stubborn about it. And
and I applaud them for doing that. But itit makes you wonder, how long can
they continue? And, you know, there are other people like me, saying the reason
we ski at Alta is because they dont have snowboarders.

[Id. 78 (quoting The Alta Experience, Interview with David Quinney by KUED (2008).] Bill
Leavitt, former Alta Town Mayor and owner of the Alta Lodge, stated:
Why doesnt Alta allow snowboarding? Everybody else is. Think of the
economics involved here. How much money they could make because its the
fastest growing thing. Well we went and checked with our old guests in all the
different lodges, people who have been coming here for years, 94 percent of them
said please dont, and so we had a big meeting and we were talking about it and
somebody said, If 94 percent of our loyal guests dont want it, why are we
wasting time talking about it and the lift company said, well, well lose money,
the lodges will, the restaurants will lose money, everybody if we do this so I want
to make sure that Im hearing from you. I want a show of hands. Every hand
went up. It was all the business people here, if the people who have been
coming here dont want it, we dont do it.

[Id. 79 (quoting The Alta Experience, Interview with Bill Leavitt by KUED (2008).]
As alleged in the Complaint, many of Altas customers hold underlying stereotypes,
prejudices, animus, and irrational fears towards snowboarders and snowboarding. [Id. 80.] On
multiple occasions between 1994 and 2013, snowboarders, including Plaintiffs Hicken and
14
Varga, have been verbally assaulted and heckled by Alta skiers while descending Alta terrain
from Snowbird. [Id. 82.] In a video filmed at Alta in 2013, Alta skiers made the following
comments about snowboarders:
Snowboarders are assholes, teenage assholes, out of control; they cant stop;
they hit people, and then they dont even stop to see how they are. . . I hate
snowboarders. They need to get off our mountain; get their own mountain.
This is a skiers mountain.

Snowboarders are the worst. Thats why I dont ski anywhere else but here .
. . I dont ever want to see a snowboarder near me . . . Snowboarders are too
young and stupid . . . I would hate it if there were snowboarders.

They shouldnt intermix. At Alta, the tradition should be keep it for skiers.

If you have a problem with it [no snowboarding], go to another resort . . .
stay the hell off this mountain.
[Id. 83 (quoting website available at http://www.youtube.com/watch?v=YwWDMAEYe5c
(last visited J an. 15, 2014)).] Further demonstrating the animus held by Alta skiers, the
following are merely a few mild examples of the type of comments made concerning
snowboarders at Alta:
YouTube user named David Collis (Dec. 16, 2013): Alta is for Skiers! Get
use to it, I cant stand it when I have to put up with boarders, they cut you off,
get in the way, and are usually AIRHEADS! Go away and cut someone else
off, you will NEVER be allowed here, I hate snowboarders!!!

Website user named Hate Snowboarders with a Passion!!! (Dec. 12, 2013):
NO WAY NEVER!!!!! Snowboarders have brought the getto into a
respectable sport. So why would Alta ever want to change? You guys are a
bunch of idiots, typical snowboarding crowd that just cannot understand.

[Id. 84 (quoting website Available at
http://videositeprofits.com/demo/video/YwWDMAEYe5c/Shit-ALTA-Skiers-Say-
15
About-Snowboarding.html; website Available at http://unofficialnetworks.com/shit-alta-
skiers-snowboarding-wow-guys-feel-107837/ (last visited J an. 15, 2014)).]
Altas Ban, as well as Altas advertising and marketing of the same, perpetuates
stereotypes and prejudices, creating a division between skiers and snowboarders and demeaning
snowboarders as second-class citizens not worthy of accessing Altas lifts or terrain. Altas Ban
is based on, creates, facilitates, endorses, and promotes animus towards snowboarders and
deprives snowboarders of the ability to use the public land on which Alta operates and the rights
otherwise afforded to skiers by operation of law. [Id. 70-71.]
D. Alta Has No Rational Basis for Excluding Snowboarders
There are no legitimate reasons for prohibiting snowboarders at any resort that allows
skiing. [Id. 86.] Skiers and snowboarders engage in the same activity. Both ride chairlifts to a
higher elevation so that they can descend by sliding down the snow. Both skis and snowboards
have bindings to attach the device to the skiers/snowboarders feet, and both devices have edges
allowing the skier/snowboarder to control his or her descent down the snow. The only difference
between the two is the orientation of a persons feet on the skis or board. [Id. 87.] Alta allows
a broad range of equipment on its chairlifts and terrain, as long as the particular device is referred
to as a ski, regardless of number of skis, length, width, type of binding, or otherwise. For
instance, a mono-ski (permitted at Alta) is simply a single board nearly identical to a
snowboard in shape and size but with feet facing forward. [Id. 88.] Allowing snowboarders at
Alta would not interfere in any way with Defendants ability to provide skiers with a positive
skiing experienceskiers would still enjoy the same snow on the same terrain. [Id. 89.] Altas
Ban does nothing to advance skiers access to or benefit from Altas unique public landit
16
merely excludes snowboarders from enjoying the same access to and benefit from that federal
land. [Id. 90.] Tradition or not, animus is inherently irrational and is never a legitimate
government interest. [Id. 91.]
On J anuary 12, 2014, when Plaintiffs Alden, Hicken, Varga, and other snowboarders
were denied access to snowboard at Alta, Altas General Manager, Onno Wieringa, told
Plaintiffs that, among other things, Altas Ban is really just a business decision. Mr. Wieringa
further stated that Alta can make enough money to be sustainable by just offering skiing, not
getting into tubing, not getting into ziplines and bungees and snowboarding. When Plaintiffs
asked what harm would result from allowing snowboarding, Mr. Wieringa responded that Altas
policies work for Alta because we like it, our skiers like it, our owners like it, and the Forest
Service says its OK. [Id. 94.] While at Alta that day, Plaintiffs observed skiers on a variety
of ski equipment, including alpine skis, wide powder skis, twin-tip free-ride skis, telemark skis,
alpine-touring skis, and even a mono-ski. None of these individuals was denied access to Altas
chairlifts while using such devices. [Id. 95.]
There are no distinctions between the broad range of ski equipment permitted at Alta
versus a snowboard, nor are there any distinctions between the type of people that ski versus
those that snowboard, that could possibly justify Altas Ban. [Id. 103.] Alta grants skiers
access to its chairlifts and terrain but bans snowboarders from both. By creating a classification
of people to disadvantage (snowboarders) and explicitly excluding them from accessing, using,
and enjoying public land, while granting access to all other similar groups (skiers), Alta (and by
extension the Government) discriminates against snowbarders. [Id. 104.] Altas Ban lacks any
rational basis to a legitimate government interest. [Id. 105.] There is no rational relationship
17
between, on the one hand, Altas Ban and, on the other hand, any possible interest claimed by
Alta or the USFS to support the Ban. [Id. 106.]
III. ARGUMENT
Defendants Motions mischaracterize the Complaint, confuse applicable law, and avoid
key issues. Under the applicable standard of review, Defendants Motions should be denied for
the following reasons: (1) the Complaint states a plausible and factually-supportable cause of
action; (2) this Court has subject-matter jurisdiction; (3) the Government has waived sovereign
immunity; (4) Plaintiffs have standing; (5) Defendants and the Ban satisfy state-action
requirements; and (6) even if heightened scrutiny is not triggered by animus, Altas Ban is not
rationally related to a legitimate governmental purpose.
A. Under the Applicable Standard of Review, the Complaint States a Plausible and
Factually-Supportable Cause of Action that Withstands Defendants Motions
Motions under Rule 12(b)(6) must be denied whenever the pleadings contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.
3
Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim has facial plausibility when the plaintiff pleads facts that allows the court to
3
While both Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
Government also moves to dismiss under Rule 12(b)(1) for lack of jurisdiction, claiming the
United States has not waived its sovereign immunity. [Govt Mot. 5.] Motions under Rule
12(b)(1) and Rule 12(b)(6) are reviewed under different standards. [Govt Mot. 5-6.] However,
to the extent the resolution of the jurisdictional question is intertwined with the merits of the
case, the Court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6)
motion, in which case the Rule 12(b)(6) standard of review should be applied. Holt v. United
States, 46 F.3d 1000, 1003 (10th Cir. 1995); [see Govt Mot. 7 (arguing that Plaintiffs must
show state action to waive sovereign immunity).]. Regardless of which standard is applied,
Plaintiffs have met their burden of establishing jurisdiction, as fully described in section III.B.
below.

18

draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.
However, even if it appears that a recovery is very remote and unlikely, a well-pleaded
complaint should not be dismissed for failure to state a claim. Twombly, 550 U.S. at 557
(quoting Schever v. Rhodes, 416 U.S. 232, 236 (1974) (emphasis added)). A complaint must
simply call for enough fact to raise a reasonable expectation that discovery will reveal
evidence. See id. Plaintiffs have more than adequately plead that Defendants conduct is
unconstitutional, and Plaintiffs should be given an opportunity to prove their claim by presenting
the evidence to a fact finder.
4

Defendants Motions reveal a number of factual disputes, relating to, for instance: (1) the
relationship between the Government and Alta; (2) the actual purpose of adopting and enforcing
the Ban; (3) the Governments involvement in, and knowledge of, the adoption and enforcement
of the Ban; (4) legitimate verses pretextual justifications for the Ban; (5) historical and current
animus towards the type of people that either snowboard or are believed to constitute
snowboarders as a class of people; and (6) whether the Ban is rationally related to a legitimate
governmental interest. Because the allegations in the Complaint must be accepted as true, these
factual disputes confirm that Defendants Motions should be denied. This case should, therefore,
continue to discovery, where additional facts will be discoveredparticularly those exclusively
within the control of Defendantsand the case can proceed to a fact finder.
The Defendants contradictory briefs provide a glaring example of the factual issues that
preclude dismissal. For instance, on the issue of the Governments awareness, involvement, and
4
Should the Court believe that the Complaint falls short of stating a claim, in any curable
manner, Plaintiffs respectfully request leave to amend the Complaint to satisfy any deficiency.

19

enforcement of the Ban, the facts will almost certainly show that the Government has been more
involved than Defendants care to admit here. Between the two Motions, Defendants attempt to
cover the waterfront with respect to the Ban but contradict themselves and each other repeatedly.
On the issue of the Governments awareness of the Ban, Alta first claims that the Permit and the
Plan are utterly silent on the Ban but then proceeds to parrot provisions in the Plan under
which Alta believes it had authority to implement the Ban (while also failing to mention that
these provisions were added by Altain 2000 in an effort to ground the Ban in the Plan). In
contrast, the Government fully admits it is aware of the Ban, that provisions in the Plan have
been construed to support the Ban, that the Government continues to approve Altas Plan
annually, and that, at the very least, the Government has acquiesce[d] to Altas [Ban]. [Govt
Mot. 12.] Moreover, the Government has previously advocated precisely the opposite position it
does here, publicly (and likely privately) arguing that similar snowboarder bans at other ski
resorts are discriminatory and pressuring resorts to abandon similar policies.
5

B. This Court May Reach the Merits of Plaintiffs Claim
This Court may decide this case on the merits because it has jurisdiction, sovereign
immunity has been waived, and Plaintiffs have standing. Each of these issues is addressed below
in turn.
1. This Court Has Jurisdiction Under 28 U.S.C. 1331
As stated in the Complaint, this Court has original jurisdiction of all civil actions arising
under the Constitution. 28 U.S.C. 1331 (Section 1331); Simmat v. U.S. Bureau of Prisons,
5
Having no intention of converting the Motions into ones for summary judgment, Plaintiffs
simply mention this example at this time to illustrate information that should be available during
discovery and that should be explored before presenting Plaintiffs case to a fact finder.

20

413 F.3d 1225, 1231 (10th Cir. 2005) (holding that a claim arising directly under the
Constitution falls within general federal question jurisdiction under Section 1331). Plaintiffs
Equal Protection claim under the Fifth and Fourteenth Amendments is a civil action arising
under the [U.S.] Constitution, which gives this Court jurisdiction over it. See id; see also Bell v.
Hood, 327 U.S. 678, 681-82 (1946) ([W]here the complaint . . . is so drawn as to seek recovery
directly under the Constitution of the United States, the federal court . . . must entertain the suit.
(emphasis added)); id. at 684 ([I]t is established practice for this Court to sustain the jurisdiction
of federal courts to issue injunctions to protect rights safeguarded by the Constitution.);
Califano v. Sanders, 430 U.S. 99, 105 (1977) (holding that Section 1331 confers subject matter
jurisdiction to review agency action).
The Tenth Circuit has rejected attempts to deprive federal courts of jurisdiction similar to
the one now urged by Defendants here:
Section 1331 . . . provides jurisdiction for the exercise of the traditional powers of
equity in actions arising under federal law. No more specific statutory basis is
required. A litigant having no other statutory authority for judicial review may
unabashedly point to Section 1331 as the basis for injunctive relief against agency
officers. As already noted, the Supreme Court in Bell v. Hood held that suits for
relief directly under the Constitution fall within this grant of jurisdiction.

Simmat, 413 F.3d at 1232 (emphasis added) (citation, internal quotations, and alterations
omitted); Cohens v. Virginia, 19 U.S. 264, 378 (1821) (making clear that in federal question
cases jurisdiction depends on the character of the cause, whoever may be the parties, and,
therefore, applies to Plaintiffs claim against all three Defendants). Thus, this Court has
jurisdiction under Section 1331 to hear Plaintiffs claim.
21
2. The Government Has Waived Sovereign Immunity
Defendants argue that the Government has not waived sovereign immunity pursuant to
the Administrative Procedures Act (APA) because there has been no final agency action. This
argument fails for at least two reasons. First, the APA provides a general waiver of sovereign
immunity for all claims arising under the Constitution, regardless of whether there has been final
agency action. Second, even assuming final agency action was required, it has been show here.
a. The APA Provides a General Waiver of the Governments Sovereign
Immunity

The Supreme Court has long recognized that sovereign immunity does not bar suits to
enjoin officers acting unconstitutionally. See, e.g., Schneider v. Smith, 390 U.S. 17, 21-22
(1968); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 68991 (1949). For over
a century, plaintiffs have been allowed to name a government official as the defendant in
equitable actions to redress government misconduct. The Presbyterian Church (U.S.A.) v.
United States, 870 F.2d 518, 525-26 (9th Cir. 1989). In 1976, Congress amended the APA to
include an express, general waiver of sovereign immunity for actions seeking equitable relief
against all unconstitutional government conduct, including suits directly against an agency, not
just its officials. United States v. Murdock Mach. & Eng'g Co. of Utah, 81 F.3d 922, 929 n.8
(10th Cir. 1996). Thus, while plaintiffs could . . . maintain an action for equitable relief against
unconstitutional government conduct even before 1976, Congress plain intent in amending
[the APA in 1976] was to waive sovereign immunity for all such suits. The Presbyterian
Church, 870 F.2d at 525-26.
The APAs waiver of sovereign immunity for all claims for injunctive or declaratory
relief based on unconstitutional conduct of government agencies or officials states:
22
An action in a court of the United States seeking relief other than money damages
and stating a claim that an agency or an officer or employee thereof acted or
failed to act in an official capacity or under color of legal authority shall not be
dismissed nor relief therein be denied on the ground that it is against the United
States.
5 U.S.C. 702 (Section 702) (emphasis added).
The Tenth Circuit has held that Section 702 provide[s] a general waiver of sovereign
immunity in all civil actions seeking equitable relief on the basis of legal wrongs for which
governmental agencies are accountable. United Tribe of Shawnee Indians v. United States, 253
F.3d 543, 549 (10th Cir. 2001) (emphasis added); Murdock Mach. & Eng'g Co. of Utah, 81 F.3d
at 929 n.8 (10th Cir. 1996) (same); Carpet, Linoleum & Resilient Tile Layers, Local Union No.
419, Bhd. of Painters & Allied Trades, AFL-CIO v. Brown, 656 F.2d 564, 566 n.5 (10th Cir.
1981) ([S]ubject only to preclusion-of-review statutes created or retained by Congress, [Section
702] confer[s] jurisdiction on federal courts to review agency action. (quotation, citation and
alteration omitted)).
6
In this case, Plaintiffs assert a claim for nonmonetary relief against both a
federal agency and one of its officers for violating Equal Protection, triggering the waiver of
sovereign immunity under Section 702.
Courts have flatly rejected Defendants argument that Section 702 waives the
Governments sovereign immunity only in cases involving final agency action. See, e.g.,
6
Other circuits are in accord. See, e.g., Cabrera v. Martin, 973 F.2d 735, 741 (9th Cir. 1992)
(Section 702 now provides a broad waiver of immunity for injunctive actions filed against the
federal government. (emphasis added)); Schnapper v. Foley, 667 F.2d 102, 107-08 (D.C. Cir.
1981) (The legislative history of [Section 702] could not be more lucid. It states that this
language was intended to eliminate the defense of sovereign immunity with respect to any
action in a court of the United States seeking relief other than money damages and based on the
assertion of unlawful official action by a Federal officer.); see also United States v. Mitchell,
463 U.S. 206, 227 n.32 (1983) (Section 702 is the general consent of Congress to suits for
nonmonetary relief).

23

Treasurer of New Jersey v. U.S. Dep't of Treasury, 684 F.3d 382, 399 (3d Cir. 2012) (rejecting
the argument that Section 702s waiver of sovereign immunity applies only in cases involving
agency action or final agency action); Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 186-87
(D.C. Cir. 2006) (same); The Presbyterian Church, 870 F.2d at 525 (same); accord Reno v. Am.-
Arab Anti-Discrimination Comm., 525 U.S. 471, 510 n.4 (1999) (citing The Presbyterian Church
and stating that Section 702 waives the immunity of the United States in actions for relief other
than money damages and [t]his waiver of immunity is not restricted by the requirement of final
agency action that applies to [causes of action arising] under the Administrative Procedure Act).
Similarly, the Tenth Circuit does not treat the APAs final agency action requirement as a
limitation on the waiver of sovereign immunity provided by Section 702. See Hanson v. Wyatt,
552 F.3d 1148, 1173 n.11 (10th Cir. 2008) (the Tenth Circuit has not treated Section 704
[requiring final agency action] as a limit on the waiver of sovereign immunity under Section
702, citing Trudeau); Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233 (10th Cir. 2005)
(Section 702s waiver of sovereign immunity is not limited to suits under the [APA]); United
Tribe of Shawnee Indians, 253 F.3d at 549-50 ([S]ection 702 has been held to provide a general
waiver of sovereign immunity in all civil actions seeking equitable relief on the basis of legal
wrongs for which governmental agencies are accountable. (citing The Presbyterian Church)).
Thus, Section 702s waiver is not limited to agency action much less final agency
action, but covers the full spectrum of agency conduct, including an agencys failure to act.
The Presbyterian Church, 870 F.2d at 525. In sum, Section 702 acts as an unqualified waiver
of sovereign immunity in actions seeking nonmonetary relief against legal wrongs for which
24
governmental agencies are accountable. Id.; accord United Tribe of Shawnee Indians, 253 F.3d
at 549.
The Complaint specifically sets forth Plaintiffs claim seeking injunctive and declaratory
relief against legal wrongs for which a federal agency and officer are accountable. [See, e.g.,
Compl. 10, 16, 27-28.] In the Complaint, Plaintiffs describe how the USFS and USFS
Supervisor either acted or failed to act, in an official capacity, to the detriment of Plaintiffs in
violation of Equal Protection. For example, Plaintiffs allege, among other things: (1) that the
Government has adopted, approved, and enforced the Ban, which deprives Plaintiffs of the
use and enjoyment of the public land on which Alta operates, unlawfully discriminates against
snowboarders, and denies snowboarders equal protection under the law, [Id. at 4, 17, 58,
102]; (2) that Altas operations are dependent upon the Permit and the Plan, which the USFS
Supervisor, in his official capacity as the Forest Service Supervisor of the Wasatch-Cache
National Forest, reviews and approves annually, thereby approving, endorsing, and authorizing
the enforcement of Altas Ban, which allows Alta to prohibit snowboarders from using public
land, [Id. at 28, 47-52]; and (3) that under the Permit and Plan, the USFS exercises substantial
control over Altas use of public land, including approval of nearly every action taken by Alta on
USFS land. [Id. 55.] In short, the Governments acts in concert with Alta, or its failure to act,
have deprived snowboarders of the ability to use the public land on which Alta operates and the
rights otherwise afforded to skiers by operation of law in violation of Equal Protection. [Id.
71.] As even admitted by Altas General Manager in defending the Ban: we like it, our skiers
like it, our owners like it, and the Forest Service says its OK. [Id. 94 (emphasis added).]
25
Accordingly, Plaintiffs challenge government action and failure to act that falls well
within the broad spectrum of agency conduct necessary to waive sovereign immunity under the
low threshold of Section 702. See The Presbyterian Church, 870 F.2d at 525. Indeed, the
Government freely admits that, despite the Permits requirement that the lands and waters
covered by this permit shall remain open to the public for all lawful purposes, it approves the
Plan annually even though it knows the Ban excludes a significant segment of the skiing
population. [Compare Govt Mot. 4, with Compl. 53.] The Governments admission of this
failure to act is by itself sufficient to waive sovereign immunity under Section 702. See United
Tribe of Shawnee Indians, 253 F.3d at 549.
b. Even Assuming the APAs Waiver of Sovereign Immunity Applies Only to
Final Agency Action, Plaintiffs Have Adequately Alleged Final Agency
Action

Even assuming Section 702s waiver of the Governments sovereign immunity was
limited to cases involving final agency action, Plaintiffs have met their burden. The APA
defines agency action to include[] the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act. 5 U.S.C.A. 551
(emphasis added). [A]gency action is final when it mark[s] the consummation of the
agencys decision making process such that rights or obligations have been determined, or . . .
legal consequences will flow. Pennaco Energy, Inc. v. U.S. Dept of Interior, 377 F.3d 1147,
1155 (10th Cir. 2004). Because a permit falls within the meaning of agency action under the
APA, where a permit demands an annual operating plan as part of the permit, the annual
operating plan constitutes final agency action; it represents the consummation of a process
setting the parameters of use under the permit for the following year. Ctr. For Native
26
Ecosystems v. Cables, 509 F.3d 1310, 1328-31 (10th Cir. 2007); Oregon Natural Desert
Association v. U.S. Forest Service, 465 F.3d 977, 983-84 (9th Cir. 2006). As in Cables and
Oregon Natural, each year the Plan must be submitted to the Government and, upon approval, is
expressly made part of the Permit. [See Permit III.C.] The Permit and the Plan impose a litany
of rights, standards, and obligations upon Defendants for which the failure to comply could result
in sanctions or other claims. Consequently, the Permit and the Plan constitute final agency
action subject to judicial review.
The Governments Motion incorrectly conflates agency action with state action,
asserting that the waiver of sovereign immunity in Section 702 does not apply unless Plaintiffs
satisfy one of the tests for establishing state action in connection with Plaintiffs Equal
Protection claim. [Govt Mot. 7.] The case the Government relies on for this proposition,
however, held only that the term under color of law in 42 U.S.C. 1983 and 18 U.S.C. 242
has the same meaning as state action in the Equal Protection context; an entirely different
inquiry than whether sovereign immunity has been waived under Section 702. [Id. (citing United
States v. Price, 383 U.S. 787, 794 n.7 (1996)).] That courts look to state action in the Equal
Protection context to determine whether a Section 1983 (or Section 242) claim has been met
does not support a conclusion that sovereign immunity is waived under Section 702 only if there
is state action. As discussed above, the appropriate inquiry is whether a plaintiff seeks
nonmonetary relief against legal wrongs for which a governmental agency is accountable. For
the reasons set forth above, Plaintiffs have more than made that showing.
7

7
Even assuming that state action is relevant to the waiver of sovereign immunity under the APA,
state action is met here. See infra text at III.C.1.

27

In sum, sovereign immunity is no obstacle to Plaintiffs claim.
3. Plaintiffs Have Standing
Alta also argues Plaintiffs lack prudential standing, asserting that Plaintiffs claim falls
outside of the zone of interests protected by Equal Protection. This is also erroneous.
The term standing subsumes a blend of constitutional requirements and prudential
considerations and is a highly case-specific endeavor, turning on the precise allegations of the
parties seeking relief. Mount Evans Co. v. Madigan, 14 F.3d 1444, 1450-51 (10th Cir. 1994)
(internal quotations and alteration marks omitted)). Article III of the Constitution requires a
plaintiff to show: (1) he or she has personally suffered an injury in fact; (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. Id. Beyond the constitutional
requirements, a plaintiff must also satisfy [a] set of prudential principles including that 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 1450-51.
Here, Plaintiffs have Article III standing, a conclusion not contested by the Government
and only marginally questioned by Alta. In a footnote, and without any legal analysis or support,
Alta argues Plaintiffs lack Article III standing because they cannot show injury in fact. To the
contrary. Harm to recreational interests constitutes injury in fact if the harm directly affects the
Plaintiffs. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181-84
(2000) ([P]laintiffs adequately allege injury in fact when they aver that they use the affected
area and are persons for whom the aesthetic and recreational values of the area will be lessened
by the challenged activity.) (quotations omitted)); Sierra Club v. Morton, 405 U.S. 727, 734-35
28
(1972) (harm to aesthetic and recreational values is an injury in fact if a claimant was himself
among the injured). In this case, Plaintiffs have sustained an injury in fact because the Ban
deprives them of the ability to use the public land on which Alta operates. [Compl. 92-98; see
also id. 21-25, 44-46.] Plaintiffs and other members of Wasatch Equality have been denied
access to snowboard at Alta pursuant to the Ban, even though they would snowboard at Alta if
the Ban were abolished. [Id. at 21-25, 92-98.] Thus, Plaintiffs have sufficiently alleged
injury in fact. Whether Plaintiffs can, as Alta claims, snowboard at every other permitted resort
in the country is irrelevant to the injury-in-fact inquiry. [Alta Mot. 7 n.4.] Even so, Alta is
unique, even among Utah resorts, in the quality of its terrain and the amount of snow it receives,
making it a particularly desirable location to snowboard. [Compl. 44-46.]
The gravamen of Altas standing argument is not that Plaintiffs lack Article III standing,
but rather, that Plaintiffs lack prudential standing because Plaintiffs claim does not fall within
the zone of interests protected by Equal Protection. To establish prudential standing, Plaintiffs
must show that the interests they seek to protect fall within the zone of interests protected by
the relevant statutory or constitutional provision forming the legal basis of the claim. Mount
Evans Co., 14 F.3d at 1452; accord Ass'n of Data Processing Serv. Organizations, Inc. v. Camp,
397 U.S. 150, 153 (1970). The essential inquiry is whether Congress intended for a particular
class of plaintiffs to be relied upon to challenge agency disregard of the law. Mount Evans Co.,
14 F.3d at 1452 (quotation omitted).
The U.S. Supreme Court recently noted that prudential considerations, including the zone
of interest test, are not technically standing requirements and, more importantly, do[] not
implicate subject-matter jurisdiction, i.e., the court's statutory or constitutional power to
29
adjudicate the case. Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377,
1387 n.4, 1391 n.6 (2014) (emphasis added) (quotations omitted). Indeed, Lexmark stated that
prudential considerations are in direct tension with the principle that a federal court's obligation
to hear and decide cases within its jurisdiction is virtually unflagging. Id. at 1386 (emphasis
added) (quotations omitted). Thus, prudential standing has no bearing on this Courts
jurisdiction.
Regardless, the zone of interest test is a low bar, which Plaintiffs have met here. See
Mount Evans Co., 14 F.3d at 1452 (The test is not meant to be especially demanding.);
Lexmark, 134 S. Ct. at 1389. Plaintiffs satisfy the test if their injury even arguably falls within
the relevant zone of interests. Bennett v. Spear, 520 U.S. 154, 162 (1997); accord Lexmark, 134
S. Ct. at 1389. In [the APA] context [the U.S. Supreme Court] ha[s] often conspicuously
included the word arguably in the test to indicate that the benefit of any doubt goes to the
plaintiff, such that the test forecloses suit only when a plaintiff's interests are so marginally
related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be
assumed that Congress authorized that plaintiff to sue. Lexmark, 134 S. Ct. at 1389 (emphasis
added) (quotations and citations omitted)).
Alta argues the Fourteenth Amendment only reaches racial discrimination and that it
demeans the Constitution to suggest that [it] . . . protect[s] the interests of those who engage in a
particularized winter sport. [Alta Mot. 8.] Contrary to this narrow view, [t]he Equal
Protection Clause has been construed as the guardian of the right of similarly situated persons to
be treated equally. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470
F.3d 286, 296 (6th Cir. 2006). Moreover, the [i]nterest conferring standing to sue may reflect
30
aesthetic, conservational, recreational, or spiritual values as well as economic values. Ass'n of
Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 154 (1970). Thus, the zone of
interests protected by Equal Protection is broad and encompasses the right of all similarly
situated individuals to be treated equally, including those who seek to protect recreational
interests. See, e.g., Club Italia, 470 F.3d at 295-96 (a companys claim that it was denied an
opportunity to submit a proposal to build a soccer complex was within the zone of interests
protected by Equal Protection); Totes-Isotoner Corp. v. United States, 594 F.3d 1346, 1352 (Fed.
Cir. 2010) (an importer of mens gloves could challenge import tariffs because the interests of
the purchasers of the gloves fell plainly within the zone of interests to be protected by [Equal
Protection]); Vote Choice, Inc. v. Di Stefano, 814 F. Supp. 195, 204 (D.R.I. 1993) (a
gubernatorial candidate could challenge the constitutionality of statutory incentives designed to
encourage candidates to accept public financing because her complaint [wa]s certainly within
the zone of interests protected by [Equal Protection]); see also Camp, 397 U.S. at 154 (the
[i]nterest conferring standing to sue may reflect aesthetic, conservational, recreational, or
spiritual values).
Plaintiffs here simply seek to be treated the same as others at Alta. The Complaint
explains that the Ban identifies a group of people . . . and treats them as unequal, purposefully
imposing inequality by, among other things, communicating to the public that snowboarders are
not welcome by Alta or the USFS on the public land at issue. [Compl. 5; see also id. at 71
(Alta and the USFS deprive snowboarders of the ability to use the public land on which Alta
operates and the rights otherwise afforded to skiers by operation of law.).] Thus, Plaintiffs
31
merely seek to be treated the same as others at Alta and access public land on similar terms,
interests which fall squarely within the zone of interests protected by Equal Protection.
Altas reliance on Alexander v. First Wind Energy LLC, No. 2:11-CV-00364-GZS, 2012
WL 681838, at *1, 5-6 (D. Me. Feb. 28, 2012) is misplaced. It is unclear whether the plaintiff in
Alexander even brought an Equal Protection claim, and she certainly did not allege she was not
being treated equally with others similarly situated. See id. at *5. Thus, Alexander offers no
insight into whether Plaintiffs claim in this case falls within the zone of interests protected by
Equal Protection. Hinesburg Sand & Gravel Co., Inc. v. State, 693 A.2d 1045, 1048-49 (1997) is
also inapposite. In that case, the court held that a claim brought by a supplier of materials
alleging the state preferred one product over another was not within the zone of interests of 42
U.S.C. 1983. Id. at 1049 (emphasis added). In contrast, the question here is whether the Ban
discriminates against Plaintiffs in violation of Equal Protection.
In sum, Plaintiffs injury does not arguably fall within the zone of interests of Equal
Protectionit falls squarely within it. Having addressed this Courts jurisdiction, shown the
Government waived sovereign immunity, and established Plaintiffs standing to challenge the
Ban, the analysis turns to the merits of Plaintiffs Equal Protection claim.
C. Plaintiffs Have Stated a Claim for Relief Against Defendants
Construing the allegations in favor of Plaintiffs, as required under the standard for these
Motions, Plaintiffs have met their burden to state a claim for relief under Equal Protection
against the Defendants. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To state a valid claim
under Equal Protection, Plaintiffs need only allege that Defendants conduct is state action and
32
classifies and discriminates against Plaintiffs arbitrarily as a result of animus or without any
rational relationship to a legitimate governmental interest.
1. Plaintiffs Allegations Satisfy State Action
Although Defendants attempt to contest the merits of Plaintiffs claim and the level of
scrutiny applicable thereto, state action is an entirely separate analytical inquiry. On this latter
issue, Defendants contend Plaintiffs cannot show the Ban constitutes state action; Alta admits
responsibility for the Ban but disputes state action, and the Government admits it is a state actor
but disputes it has anything to do with the Ban. [See, e.g., Alta Mot. 16; Govt Mot. 12.] In
order to establish state action, Plaintiffs must simply demonstrate that the alleged deprivation
of constitutional rights was caused by the exercise of some right or privilege created by the State
or by a rule of conduct imposed by the State or by a person for whom the State is responsible,
and the party charged with the deprivation must be a person who may fairly be said to be a state
actor. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995)
(quotations omitted). [W]hether particular conduct constitutes state action frequently admits of
no easy answer, thus, the U.S. Supreme Court take[s] a flexible approach to the state action
doctrine, applying a variety of tests to the facts of each case. Id. at 1447 (internal quotations
omitted). As discussed below, the Tenth Circuit applies the nexus, symbiotic-relationship, joint-
action, and public-functions tests to assess state action. Gallagher v. Neil Young Freedom
Concert 49 F.3d 1442, 1447-54 (10th Cir. 1995). Regardless of which test is applied here,
Plaintiffs allegations reveal a complicated and entangled legal and factual relationship between
Alta and the Government sufficient to establish state action.
33
The Governments oversight, administration, and control over nearly every aspect of
operations at Alta is extensive. In addition to the countless state and federal regulations and laws
that Alta explicitly agreed to abide by in order to obtain the Permit and Plan,
8
numerous other
provisions in the Permit and Plan impose strict obligations, procedures, protocols, and other
requirements upon nearly all of Altas operations. These provisions pertain to an incredibly wide
range of purportedly private conduct by Alta and show mandatory and pervasive oversight and
regulation by the Government. [See Alta-Government Relationship Examples Establishing State
Action, which is attached hereto as Exhibit 3 (State Action Examples).] They confirm, among
other things, the Governments: (1) broad authority and reservation of rights; (2) obligation to
supervise and administer the public land at Alta; (3) ability to require joint annual business
meetings to provide annual use reports; (4) right and duty to inspect and monitor Altas
operations and all related books and records; (5) right to require common use of the land or to
use or permit others to use any part of the area for nearly any purpose; and (6) right to suspend or
terminate Altas use for noncompliance or when required by the public interest. [Id.] Similarly,
they impose complimentary rights and obligations on Alta, including: (1) drastic limitation of
uses pursuant to the Governments authorization; (2) ongoing obligations to both the
Government and the public; (3) duty to keep a number of records and other logs on behalf of and
open to review by the Government; (4) duty to hire and train a number of specific teams of
employees pursuant to Government requirements; (5) duty to pay fees to the Government
8
The Permit mandates that Alta shall comply with all present and future regulations of the
Secretary of Agriculture and federal laws and state, county, and municipal laws, ordinances, or
regulations . . . to the extent they are not in conflict with federal law, policy or regulation.
[Permit 2 (emphasis added).] Although all federal laws necessarily includes Equal Protection,
any ambiguities regarding the Permit or Plan are questions of fact that cannot be resolved
pursuant to Defendants Motions.
34

considerable in size in relation both to Altas revenue and to the revenue received by the Uinta-
Wasatch-Cache National Forest generally and from resorts specifically; (6) obligation to
establish and maintain certain operations in compliance with Government requirements and other
law; (7) inability to sublease premises without prior written Government approval; (8) duty to
obtain Government approval for all signs and other advertising; (9) obligation to ensure good
housekeeping practices are maintained throughout the premises; and (10) obligation to obtain
Government approval for all food service concessionaires. [Id.]
It should be remembered that Alta would not exist but for the USFS issuing Altas
Permit. Indeed, Altas operations continue on USFS land solely by virtue of the Permit and Plan,
under which Alta is authorized only to occupy such land and structures and conduct such
activities as is specified [by the Permit and Plan]. 36 C.F.R. 251.55 (emphasis added). This
authorization is also subject to all outstanding valid rights. Id. Indeed, the Permit explicitly
demands that the lands and waters covered by [it] shall remain open to the public for all lawful
purposes. [Comp. 53 (emphasis added).] Moreover, the Permit also mandates that Alta
shall prepare and annually revise [a Plan] which shall be prepared in consultation with the
[USFS Supervisor]. [Permit 4 (emphasis added).] After being submitted by [Alta] and
approved by the [USFS Supervisor], the revised annual Plan shall become a part of [the
Permit]. [Id. (emphasis added).] Further, the Governments renewal of Altas authorized use
requires that the land use allocation is compatible with [Government plans], that the site is
being used for the purposes previously authorized, and that Alta is being continually operated
and maintained in accordance with all the provisions of the [Permit]. [Id. 12 (emphasis added).]
The Plan also describes the Governments duty [t]o monitor the [Permit] area and facilities for
35
compliance with the [Permit] terms including [the Plan] and subordinate plans and to liason []
between the public and [Alta] . . . and the [USFS] in matters concerning safety and service.
[Plan 4 (emphasis added).] Countersigned by Alta and the USFS Supervisor, the current Plan
has been reviewed and found [] adequate and consistent with Defendants mutual
goal[s]. [Id. 1.] Thus, as explained in the agency-action context above, the Governments
ongoing approval of each annual Plan subsequently incorporated into the Permit, combined with
its knowledge that the Ban is enforced by Alta under the Permit and Plan, shows the Ban has
Government approval.
9
See Ctr. for Native Ecosystems v. Cables, 509 F.3d 1310, 1328-31 (10th
Cir. 2007) (annual approval of operating plan constitutes final agency action).
In addition to the host of facts cited herein showing state action, the very manner in
which the Government and Alta publicly characterize their relationship provides further indicia
of state action. For example by simply visiting Alta one cannot help but notice: (1) the USFS
flag flying over Altas Ticket Office and Ski Shop; (2) the USFS and Alta logos prominently
displayed together at the base of every lift; (3) the USFS and Alta logos on billboard-sized signs
throughout Alta declaring Alta Ski Area and the Uinta-Wasatch-Cache National Forest
PARTNERS IN SKIING; and (4) the USFS logo directly adjacent to the statement that Alta is
a skiers mountain Snowboarding is not allowed on each and every pocket-sized trail map at
Alta. [See Exhibit 1.] Under the terms of the Permit and the Plan, each of these examples were
9
Alta claims Plaintiffs have conceded [t]he [Government] has not required . . . nor . . .
encouraged the [Ban]. [Alta Mot. 4 (citing Complaint 51-52).] Plaintiffs have done no such
thing. Instead, Altas claim erroneously attributes this concession to sections of the Complaint
where Plaintiffs simply quote provisions in the Plan giving Alta permission to prohibit certain
devices only when they pose unnecessary risks, cause undue damage to snow quality, or are
inconsistent with certain business management decisions. [Complaint 51.] As Plaintiffs have
previously explained, an interpretation of these provisions as approving, justifying, setting forth,
or even tolerating the Ban is irreconcilable with the Permit.
36

presumably approved by the Government. [See, e.g., Permit 4 (Signs or advertising devices
erected on National Forest lands, shall have prior approval by the Forest Service as to location,
design, size, color, and message.); id. 12 ([Alta], in advertisements, signs, circulars, brochures,
letterheads, and like materials, as well as orally, shall not misrepresent in any way either the
accommodations provided, the status of the permit, or the area covered by it or the vicinity.).]
While, Defendants concede that Alta is subject to some oversight by the [Government]
and that the Government acquiesced to Altas [Ban] [See, e.g., Alta Mot. 16; Govt Mot. 12.],
Defendants question how Plaintiffs can plausibly allege that the Government approved, endorsed
and authorized the Ban. [Alta Mot. 15.] Defendants overlook, many of Plaintiffs allegations,
including the statement form Altas General Manager admitting that the Ban work[s] for Alta
because we like it, our skiers like it, our owners like it, and the Forest Service says its OK.
[Complaint 94 (emphasis added).] And, the Government does not dispute that it could require
Alta to end the Ban but, instead, concedes that it is aware of the Ban and has done nothing to
stop it, all while continuing to approve the revised Plan each year, which itself constitutes a
failure to act that allows the Ban to endure.
10
[Govt Mot. 4.] There is no question the annual
review[] and approv[al] of the Plan by the Government constitutes approv[al], endors[ment],
and authoriz[ation] of the Ban. [Complaint 28.] In light of the foregoing facts, Alta cannot be
10
By failing to act, the Government fails to protect the publics rights under the Permit
and the Plan to access the public land, which the Government holds in trust for the
people of the whole country. Light v. United States, 220 U.S. 523, 537 (1911). Fully
aware of the Ban, the Governments mere acquiescence to it serves to approve the
exclusion of snowboarders from the public land through the enforcement of the Ban. In
addition to showing state action, the Governments failure to protect the rights of certain
members of the public while asserting the rights of all other similarly situated individuals
constitutes a violation of Equal Protection.

37

considered a private business in any ordinary sense of the phrase, as nearly all aspects of
Altas operations on public land are undertaken on behalf and as an extension of the
Government.
In an attempt to controvert state action, Defendants ignore the factually and legally
entangled relationship between Alta and the Government under the Permit and Plan, choosing
instead to offer self-serving, conclusory, and ultimately contradictory assertions relating to a
handful of Plaintiffs allegations divorced from context in the Complaint. Moreover, Defendants
support these contentions by citing a number of cases simply finding that claimants cannot
establish state action merely through a key fact or two. [See, e.g., Alta Mot. 15.] In light of
the complex relationship between Alta and the Government, as shown above, such proclamations
of one, two, or even several isolated factors are hardly relevant here. [See State Action
Examples.] Plaintiffs have never rested state action merely on the Governments approval of
or acquiescence in the Ban or even the Ban in combination with a few other facts. Rather,
considering well-known facts, the allegations in the Complaint,
11
and the relationship between
Defendants in fact and law under the Permit and Plan, there are myriad facts which easily show
state actionsome through their own force but most certainly when considered in the aggregate.
Alta asserts its business decision as a private entity to restrict the use of certain
equipment by its customers including sleds, inner tubes, snowshoes, snowboards, and other
unapproved devices does not constitute state action any more than its other business
decisions. [Alta Mot. 12.] Alta fails to mention, however, that all of the listed unapproved
devices other than snowboards are explicitly and officially prohibitednot by virtue of Altas
11
Because Plaintiffs allegations are presumed true, Defendants arguments concerning
questions of fact are irrelevant here.
38

discretion but on the face of the Plan approved by the Government. [Plan 14 (allowing Alta to
exclude [s]ledding, tubing or snowshoeing in unauthorized areas); see also id. (allowing Alta
to exclude [u]nauthorized use of snowmobiles or other over-the-snow vehicles).] Thus, any
suggestion that Alta has discretion to summarily impose wholesale bans on devices pursuant to
some business decision as a private entity either is deliberately misleading or fails to account
for the actual authority of and relationship between Alta and the Government.
12

Defendants rely almost exclusively on Gallagher v. Neil Young Freedom Concert to
argue that Plaintiffs cannot satisfy state action. [See Alta Mot. 13-19 (citing 49 F.3d 1442 (10th
Cir. 1995)); Govt Mot. 7-13 (same).] In Gallagher, as previously referenced, the Tenth Circuit
outlined four tests often used by courts to assess state action, referred to as the nexus, symbiotic
relationship, joint action, and public functions tests. F.3d at 1447-54 In attempt to apply
Gallagher here, Defendants once again mischaracterize Plaintiffs claim, the known and alleged
facts, and the complex and entangled Alta-Government relationship. Contrary to Defendants
assertions, Plaintiffs allegations satisfy all of the Gallagher tests.
As a preliminary matter, it should be noted that Plaintiffs have already offered a litany of
factors that show the full scope of the Alta-Government relationship, which should be considered
in the aggregate. [See State Action Examples.] Thus, this case is entirely different from
Gallagher, in which the court repeatedly observed that the claimant utterly failed to allege any
facts connecting the challenged action to the state. See, e.g., Gallagher, 49 F.3d at 1449 (reciting
the narrow facts that failed to show state action).
12
Any exclusions asserted by Defendants should be considered in light of the Permits safety
rationale justifying exclusion and the stated objective of the Plan to provide for use of all
recreation facilities [at Alta] (pursuant to the [Permit]) with minimal risk for employees and the
public. [Plan 4 (emphasis added).]
39

Under the nexus test, the Tenth Circuit explicitly held that, if the [Gallagher claimants]
could demonstrate that the pat-down searches directly resulted from the Universitys policies[,]
then the required nexus would be established to find state action. Gallagher, 49 F.3d at 1450
(noting evidence of such a specific causal connection is lacking). Unlike in Gallagher, and
other cases where the nexus test failed because specific allegations were lacking or, standing
alone, [were] simply too general, the multitude of factors recounted above and referenced in the
State Action Examples conclusively establish that the Ban directly results from the
Governments policy to either approve or ignore the Ban while reviewing and approving the Plan
each year.
13

Similarly, under the symbiotic relationship test, the myriad factors set forth by Plaintiffs
above make this case unlike Gallagher or any of the cases described by Gallagher since Burton
v. Wilmington Parking Authority, 365 U.S. 715 (1961). As in Burton, Defendants are joint
participants in the challenged activity here and have a long history of interdependence. Indeed,
in addition to the complex and entangled relationship between Alta and the Government, the
Government depends upon actors like Alta to operate resorts for the public on federal land,
which the Government intended to establish through its special use permit scheme. If Alta did
not operate the resort for the public on behalf and as an extension of the Government, the
Government would be required to enter into an identical relationship with another entity
functionally interchangeable with Alta. Conversely, if the Government revoked the Permit and
Plan, Alta would cease to exist as it is known today. Indeed, the Government has so far
13
Notably, the Government previously advocated publicly (and likely privately) that no-
snowboarder bans constitute arbitrary discrimination and pressured resorts to stop enforcing such
policies. The Governments change in position here, therefore, is simultaneously a change in its
official policy. See supra note 1.
40

insinuated itself into a position of interdependence with [Alta] that it must be recognized as a
joint participant in the challenged activity, which, on that account, cannot be considered to have
been so purely private as to fall without the scope of the Fourteenth Amendment. Burton, 365
U.S. at 725 (1961).
For similar reasons, Plaintiffs allegations satisfy the third test, requiring that Alta, as a
private party[,] is a willful participant in joint action with the State or its agents. Gallagher, 49
F.3d at 1447-54. While mere acquiescence is not enough, Plaintiffs have offered known facts
and other allegations showing that the Government and Alta have acted in concert in adopting
and continuing to enforce the Ban. Gallagher, 49 F.3d at 1453. As described above, the
Government has participated in and had influence over the continued enforcement of the Ban.
Id. at 1454. Alta continues to exclude individuals from public land under the Ban solely by
virtue of the overt and significant participation of the Government, also described above. Id.
Contrary to cases cited in Gallagher, considering the Government previously advocated against
policies similar to the Ban, Altas policy decisions appear to have completely superseded the
independent policy judgments of the Government. Id. And because it must approve the Plan
each year while knowing that it has allowed and continues to allow Alta to enforce the Ban, the
Government cannot be considered merely a non-participating bystander. Id. at 1455.
Finally, Plaintiffs have shown that the Government has delegated functions to Alta
traditionally exclusively reserved to the State. Id. at 1456 (internal quotations omitted). Few
public functions are as traditionally and exclusively performed by the Government as the
administration of the national parks and forests of the United States, which have been an integral
part of the Governments activities for over a century. Cf. id.; see also Evans v. Newton, 382
41
U.S. 296, 301 (1966). The U.S. Supreme Court has described the issuance of a special use
permit to a ski resort alone as a major [f]ederal action. See, e.g., Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 336 (1989) (emphasis added). As in Evans, the momentum this
public land acquired as a public facility has certainly not dissipated ipso facto the appointment
of Altaquite the opposite, as the Government reserved numerous rights and imposed equally as
many obligations upon Alta such that there has been no change in [the Governments]
maintenance and concern over the area. Evans, 382 U.S. at 301. Unable to relinquish control
over the public land leased to Alta, the Government remains entwined in the management or
control of the park, which remains subject to the restraints of [Equal Protection]. Id. As
described above, being open to all members of the community, there is little, if anything, about
the operations at Alta that is private in nature. If [m]ass recreation through the use of parks is
plainly in the public domain, recreation in national parks and forests certainly must be of a
similar nature. Id. at 302.
For all these reasons, any state-action requirement is met here.
2. Plaintiffs Have Stated a Claim Under Equal Protection
In general, [t]he purpose of [Equal Protection] is to secure every person . . . against
intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by
its improper execution through duly constituted agents. Vill. of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (emphasis added) (quoting Sioux City Bridge Co. v. Dakota County, Neb., 260
U.S. 441, 445 (1923)); see also United States v. Windsor, 133 S. Ct. 2675, 2695 (2013) (The
liberty protected by the Fifth Amendments Due Process Clause contains within it the prohibition
against denying to any person the equal protection of the laws.); Engquist v. Ore. Dept. of
42
Agric., 553 U.S. 591, 598 (2008) (It is well settled that [Equal Protection] protects persons, not
groups, and that the Clauses protections apply to administrative as well as legislative acts.
(citation, internal quotations, and alteration marks omitted)).
The core concern of Equal Protection is simply to act as a shield against arbitrary
classifications by the Government and its actors. Engquist v. Ore. Dept. of Agric., 553 U.S.
591, 598 (2008) (emphasis added). More than a century ago, the first J ustice Harlan
admonished . . . that the Constitution neither knows nor tolerates classes among citizens.
Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559
(1896) (Harlan, J ., dissenting)). [T]hose words now are understood to state a commitment to
the laws neutrality where the rights of persons are at stake. Id. Seeking to remove Plaintiffs
from the ambit of Equal Protection here, Alta urges this Court to rewind the conception of Equal
Protection to not only predate J ustice Harlans 1896 dissent in Plessy but also conflict with the
meaning of Equal Protection at the time the Fourteenth Amendment was drafted and ratified.
14

Indeed, Equal Protection routinely invalidates burdens in numerous contexts unrelated to
race. See, e.g., U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 533 (1973) (hippie communes);
14
While its relevance is not entirely clear, Alta wastes space reciting the history of race
discrimination and hornbook law. [See, e.g., Alta Mot. 8.] This is simply a distraction. First,
Plaintiffs obviously do not, nor would they, equate snowboarders to former slaves or contest
the primacy of race among the pantheon of suspect classifications. Second, as intended at the
time of its adoption, Equal Protection protects all peopleequally, so the claim that race
prejudice is the key to interpreting the Fourteenth Amendment is one that borders on
perversity[.] J ohn Hart Ely, Democracy and Distrust: A Theory of J udicial Review 30 n.70
(1980) (emphasis added) (noting such arguments are roughly akin to a claim that censorship is
the key to understanding [the] First Amendment). Today, [w]e know, . . . and would rightly
presume it even if we didnt[,] that the decision to use general language, not tied to race, was a
conscious one. Id. at 32. So as to not belabor the point, Plaintiffs will say only that, given the
last century of jurisprudence, it is difficult to argue that Equal Protection is limited to race
discrimination.
43

Olech, 528 U.S. 562 (easements); Sioux City Bridge, 260 U.S. 441 (property assessments); Craig
v. Boren, 429 U.S. 190 (1976) (gender); Windsor, 133 S. Ct. 2675 (same-sex marriage); Plyler v.
Doe, 457 U.S. 202 (1982) (alienage); Shapiro v. Thompson, 394 U.S. 618 (1969) (residency);
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 435 (1985) (mental disability).
Consequently, the Ban may be challenged as arbitrary or irrational under either a class-of-one or
class-based theory of Equal Protection.
The allegations sufficient to show that Plaintiffs have stated a claim under either Equal
Protection theory appear on the face of the Complaint. Adopted in the mid-1980s, the Ban has
classified and intentionally excluded a specific group of people from Alta based on animus,
stereotypes, and other illegitimate concerns relating to the demographic and socioeconomic
factors of the type of people believed to be snowboarders, which include ability, income,
age, dress, lexicon, culture, attitude, and other stereotyped factors. [Complaint 3.] While
publicly claiming the Ban only applies to snowboards as a device, the Ban continues to receive
Government approval and is enforced by Alta because Altas decision-makers and customers
believe the Ban keeps a certain type of undesirable person awayin particular, individuals they
believe predominantly use snowboards, including those that cannot or will not use a different
device.
15
[See, e.g., Complaint 3 (describing how the Ban resulted from animus towards a
specific type of person); see also id. 8-9, 67, 70, 75, 78-85, 107, 109.] Although it may
collaterally burden other individuals, the Ban continues to target snowboarders as a group in
15
Numerous factors may prevent individuals from using other devices, including ability, cost,
disability, and/or other personal considerations. Further, not only does an identifiable group of
people consider their status as a snowboarder to be part of their personal and professional
identity, Alta itself created and defined the skier versus snowboarder classifications by
establishing a class of skiers defined solely by the exclusion of individuals that snowboard
(especially those that exclusively snowboard for whatever reason).
44

order to exclude the same type of person Alta originally deemed undesirable, classified, and
excluded from Alta through the Ban. [Complaint 62, 70, 75, 80-85, 90, 107.] Accordingly,
Plaintiffs have stated a straightforward claim for relief against Defendants pursuant to either a
class-of-one or class-based theory of Equal Protection.
In addition to Wasatch Equality, a non-profit organization formed on behalf of skiers and
snowboarders to advocate for fair and equal access and use of public land, Plaintiffs include four
individuals, some of whom were initially allowed to snowboard at Alta, and all of whom are now
excluded by the Ban. [Complaint 21-25.] As original and continuing targets of the Ban,
Plaintiffs fall within the scope of both (1) the specific individuals arbitrarily classified and
excluded by the Ban due to ill will and animus and (2) the class of snowboarders defined and
burdened by the Ban without any rational relationship to legitimate governmental interests. [See
Complaint 5, 8, 9, 33, 58, 70, 72, 103, 104, 110.] While the former describes typical class-of-
one claimants, the latter identifies a classification similar to those commonly challenged under
Equal Protection. Each of these scenarios are addressed in turn below.
a. Plaintiffs Claim Is Valid Under the Class-Based Theory of Equal
Protection

To state a claim under the traditional class-based theory of Equal Protection, Plaintiffs
must allege that the challenged state action intentionally discriminates between groups of persons
without rationally furthering some legitimate governmental interest.
16
See Moreno, 413 U.S. 528.
16
Although Plaintiffs address the Motions under a rational-basis standard, a number of factors
alleged in and factually supported by the Complaint, such as animus, stereotypes, and irrational
fear and loathing, may justify applying heightened scrutiny. See, e.g., Cleburne, 473 U.S. 432;
see also Wickman v. Henderson, 19 F. App'x 740, 744 (10th Cir. 2001) (citing Shager v. Upjohn
Co., 913 F.2d 398, 405 (7th Cir. 1990)) (non-discriminatory individuals may not act as conduit
for the prejudice or discrimination of others without incurring liability).
45

Here, Plaintiffs have alleged that the Ban intentionally discriminates between groups of people as
snowboarders and skiers (which is itself a classification defined by the exclusion of
snowboarders). [See, e.g., Complaint 72 (Altas purpose in enacting its policy was motivated
by a bare desire to disadvantage what Alta viewed (and continues to view) as an unpopular group
by denying snowboarders access to Alta.); see also id. 5 (the Ban identifies a group of
people. . . and treats them as unequal); id. 86-91 (No Rational Basis to Exclude
Snowboarders); id. 109.] Similarly, Plaintiffs specifically alleged that the Ban cannot be
justified as rationally furthering any legitimate governmental interest. [See, e.g., Complaint
86-91 (No Rational Basis to Exclude Snowboarders); id. 72-76 (Altas J ustifications as
Pretext for Animus); see also id. 91, 105-07, 110.] Indeed, the very interests asserted by
Defendants as justifying the Ban are those that Plaintiffs have already specifically referenced in
their Complaint and rejected as illegitimate pretext for the true motivations behind the Ban.
[See, e.g., Complaint 109 (the assertion that the [Ban] was a business decision is mere
pretext).] Nonetheless, none of these purported justifications constitute legitimate government
interests nor are they rationally related to the Ban on snowboards.
17

First, Alta argues it has a business interest in maintaining a skiing culture that caters to a
skier-specific market. [Alta Mot. 25;] Such circular reasoning cannot possibly constitute a
legitimate governmental interest. If the Policy is to be sustained, the challenged classification
must rationally further some legitimate governmental interest other than those specifically stated
in the [] declaration of policy. U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 533 (1973)

17
Alta also attempts to justify the Ban by claiming that in none of [the Olympic snowboarding]
events do those riding snowboards compete against those riding skis. [Alta Mot. 26-27.] This
is plainly a non sequitur.
46

(emphasis added) (internal quotations omitted). Because skiing is defined by Altas exclusion
of snowboards from the list of all allowed devices, Defendants argument is essentially that Alta
has a business interest in maintaining a [culture that excludes snowboarders] that caters to a
[market that specifically excludes snowboarders]. When more accurately stated, it becomes
clear that Altas attempt to justify the Ban has actually proven Plaintiffs claim: Alta enforces the
Ban against snowboarders because it would be justified by a business interest in fostering a
culture that excludes such people catering to anyone that also wants to exclude those people.
Additionally, Alta does not have some abstract skiing culture that caters to a skier-
specific market, which could only be defined by its exclusion solely of snowboarders. As
described above, Alta allows numerous devices functionally equivalent to and likely to be
confused with snowboards, while continuing to enforce the Ban because of its exclusion of the
type of people believed to use snowboards by decision-makers and customers at Alta. Some of
these devices are similar in appearance but distinct from traditional skis, such as twin-tip, wide,
telemark, backcountry, and freeriding skis, while other devices considered skis under the Ban
are nearly indistinguishable from snowboards, such as monoskis, teleboards, and skiboards.
18

Finally, Alta has also admitted publicly and on multiple occasions that it would make more
money if it allowed snowboards. A business interest to lose money simply to exclude a certain
type of person from public land cannot constitute a legitimate governmental interest.
18
Alta allows numerous devices that could easily be, and often are, mistaken for snowboards.
The difference, of course, is that the devices excluded from the Ban are not known to be used by
the group of people targeted by Alta. Indeed, whether a device is prohibited by Alta depends on
the identity of the individual using it.

47

Second, Defendants make vague references to generalized safety concerns that,
according to Alta, clearly constitute a valid interest that Plaintiff cannot overcome.
19
[Alta
Mot. 26; see also Govt Mot. 21.] Alta and the Government initially contend that snowboarders
have a blind spot not shared by skiers. [See, e.g., Govt Mot. 21.] These conclusory assertions
of some purported blind spot cannot establish a legitimate governmental interest here. To
begin with, unless Defendants know something that Plaintiffs do not know, neither skiers nor
snowboarders have eyes in the back of their heads. Both skiers and snowboarders heads turn to
look down the fall line while descending a slope, while skiers using twin-tipped skis are allowed
at Alta and other resorts on public land to literally ski backwards down the mountain.
Defendants cannot reconcile their approval of backwards skiing with some fictional blind spot
that somehow justifies a Ban against a significant portion of the public solely at Alta. It is also
astonishing that the Government claims here that a blind spot justifies the Ban at Alta while
currently allowing snowboards at 119 other resorts that operate on public land under similar ski
area permits. While it is apparently not concerned with liability issues at other resorts, the
Government fails to offer any reason or explanation whatsoever as to why this blind spot is
some sort of special safety concern unique to Alta. Defendants arguments concerning
traverses and ski poles are similarly self-serving, contradictory, and illegitimate in light of the
119 other resorts on public land with more difficult traverses where snowboards have been
permitted without issue and the numerous devices at Alta and other resorts on USFS land that are
allowed despite the lack of ski poles have no issue crossing traverses.
19
In claiming this blind spot is somehow a safety concern at Alta, Defendants fail to
mention that a study performed by the National Ski Areas Association, of which Alta is a
member, reported last year that skiers are three times more likely to be involved in a collision
with other people than snowboarders.
48

Defendants must do more than merely offer arbitrary and irrational distinctions to justify
the classification and exclusion of a large percentage of the public from Alta. See Sisk v. Texas
Parks & Wildlife Dept, 644 F.2d 1056, 1058 (5th Cir. 1981) (disparate treatment must
nevertheless have a rational basis.). Despite Defendants citations to cases granting motions for
summary judgment or lacking allegations or claims similar to those Plaintiffs set forth under the
motion to dismiss standard here, the Complaint should not be dismissed at this stage for failure
to state a claim where Plaintiffs allege and stand ready to offer evidence proving that the interests
offered by Defendants are illegitimate. See id. at 1058 n.5 (denying motion to dismiss because,
[a]lthough fishing is not a fundamental right nor is the class of commercial fishermen a suspect
class so as to subject Texas treatment to strict scrutiny, the court fail[ed] to see how [the]
allegations do not state a cause of action, and it is not the duty of [the] Court to pass on such
matters [in] this case as currently presented).
Plaintiffs have gone even further than merely satisfying the pleading requirements above.
The Complaint specifically alleges that the Ban was motived not by any legitimate government
interest but by animus held by Altas ownership, management, and customers towards the type
of people they believed to be snowboarders. [Complaint 3.] The Constitution cannot control
such prejudices, but neither can it tolerate them. Private biases may be outside the reach of the
law, but the law cannot, directly or indirectly, give them effect. Bowers v. Hardwick, 478 U.S.
186, 212 (Blackmum, J ., dissenting) (quoting Palmore v. Sidoti, 466 U.S. 429, 433 (1984)),
overruled by Lawrence v. Texas, 539 U.S. 558 (2003). Thus, courts consistently affirm that
[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a
persons physical liberty. OConnor v. Donaldson, 422 U.S. 563, 575 (1975); see also Cleburne
49
v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). [I]f the constitutional conception of
equal protection of the laws means anything, it must at the very least mean that a bare [] desire
to harm a politically unpopular group cannot constitute a legitimate governmental interest. U.S.
Dept of Agric. v. Moreno, 413 U.S. 528, 534 (1973). Consequently, the [j]udicial inquiry . . .
does not end with a showing of equal application among the members of the class. McLaughlin
v. Florida, 379 U.S. 184, 191 (1964). Instead, courts must reach and determine the question
whether the classifications drawn . . . are reasonable in light of its purposein this case, whether
there is an arbitrary or invidious discrimination between those classes covered by [the Ban] and
those excluded. Id. Thus, Defendants contradictory and conclusory assertions like
[e]veryone is treated the same because all must comply with [the Ban] regardless of their
individual preferences do not terminate the inquiry here. [Govt Mot. 24.]
For all of the above reasons, Plaintiffs have stated a claim for relief under the class-based
theory of Equal Protection.
b. Plaintiffs Claim Is Valid Under the Class-of-One Theory of Equal
Protection

Defendants go to great lengths attempting to contest Plaintiffs class-of-one theory. [See,
e.g., Alta Mot. 20-22.] However, both the theory and the claim are far more straightforward than
Defendants arguments would suggest. Recognition of the class-of-one theory . . . [is] not so
much a departure from the principle that [Equal Protection] is concerned with arbitrary
government classification, as it [is] an application of that principle. Engquist v. Oregon Dept
of Agric., 553 U.S. 591, 602 (2008). Class-of-one claims simply presuppose[] that like
individuals should be treated alike, and that to treat them differently is to classify them in a way
that must survive at least rationality review Id. 605. When those who appear similarly
50
situated are nevertheless treated differently, [Equal Protection] requires at least a rational reason
for the difference, to ensure that all persons subject to legislation or regulation are indeed being
treated alike, under like circumstances and conditions. Id (internal quotations omitted).
Analytically distinct from Equal Protection claims based on class, a class-of-one claim is
stated where the plaintiff alleges that she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment. Olech, 528
U.S. at 564 (emphasis added) (internal quotations omitted); see also Kansas Penn Gaming, LLC
v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (A plaintiff must first establish that others,
similarly situated in every material respect were treated differently. (emphasis added)).
Although it has been called a class-of-one, the number of individuals in a class is immaterial
for [the] analysis. Olech, 528 U.S. at 564. As described above and alleged in the Complaint,
Plaintiffs allege that they have been arbitrarily classified by Defendants and excluded by the Ban
from Alta, which freely grants access to all other similarly situated skiers at Alta. [See, e.g.,
Complaint 104.]
In contesting whether Plaintiffs are similarly situated in every material or relevant
respect to those who wear skis, Altas argument mischaracterizes the comparators and falsely
attributes certain facts to Plaintiffs. [Alta Mot. 23.] In essence, Alta has referred only to the
stance and counterculture of snowboarders as the material and relevant factors making a
snowboarder not similarly situated to skier. In gaming the identities of snowboarders and
skiers, however, Altas argument here fails to consider the actual classifications that Alta itself
created: (a) snowboarders, which includes only those individuals that use a snowboard; and (b)
skiers, which includes any individual using any device approved at Alta, including traditional,
51
twin-tip, wide, telemark, backcountry, and freeriding skis in addition to a number of skis
nearly indistinguishable from a snowboard, such as monoskis, skiblades, teleboards, and
skiboards. Consequently, the individuals the Ban intentionally targets as snowboarders are
similarly situated to skiers, per Altas own definitions. Any distinction drawn between
snowboards and snowboarders versus all of the devices and individuals within the ambit of
skis and skiers is neither material nor relevant to the comparison here.
The Tenth Circuit has also required that class-of-one plaintiffs allege that they were
singled out for persecution due to some animosity, including spiteful effort[s] to get [a
plaintiff] for reasons wholly unrelated to any legitimate state activity. Mimics, Inc. v. Vill. of
Angel Fire, 394 F.3d 836, 848-49 (10th Cir. 2005) (emphasis added) (internal quotations
omitted). As has been further detailed above and in the Complaint, Plaintiffs were among the
first group of people to snowboard at Alta in the mid-1980s but, as a result of the Ban, have been
excluded from Alta as a result of stereotypes, prejudices, animus, and irrational fears held by
Altas ownership, management, and customers towards the type of people believed to use a
snowboard. [See, e.g., Complaint 107.] Having met each specific requirement for a class-of-
one claim, Plaintiffs need only show the different treatment lacks any rational basis, which has
already been established in the immediately preceding section above.
For all of these reasons, Plaintiffs have stated a claim for relief pursuant to the class-of-
one theory under Equal Protection.
52
IV. CONCLUSION
For the reasons stated herein, Plaintiffs respectfully request that Defendants Motions be
denied and that Plaintiffs be allowed the opportunity to undertake discovery and present the
merits of their case. Plaintiffs also respectfully request oral argument on this matter.

DATED this 13th day of May 2014.

PARR BROWN GEE & LOVELESS

/s/ Jonathan R. Schofield
J onathan R. Schofield
Michael S. Anderson
Rachel L. Wertheimer

Attorneys for Plaintiffs

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Memorandum in Opposition of Motion To Dismiss Lawsuit Between Wasatch Eqaulity and Alta

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Memorandum in Opposition of Motion To Dismiss Lawsuit Between Wasatch Eqaulity and Alta

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