Alta Renewed Motion To Dismiss Over Snowboard Ban

FREDERICK R.
THALER (7002)
ROBERT O. RICE (6639)
RAY QUINNEY & NEBEKER P.C.
36 South State Street, Suite 1400
Post Office Box 45385
Salt Lake City, UT 84145-0385
Phone: (801) 532-1500
Facsimile: (801) 532-7543
rthaler@rqn.com
rrice@rqn.com
Attorneys for Defendant Alta Ski Lifts Company

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.

REPLY MEMORANDUM IN SUPPORT
OF DEFENDANT ALTAS MOTION TO
DISMISS

Case No. 2:14-cv-00026 DB

J udge Dee Benson
Defendant Alta Ski Lifts Company (Alta) files its Reply Memorandum in Support of
Defendant Altas Motion to Dismiss and respectfully moves this Court to dismiss the Complaint
Case 2:14-cv-00026-DB Document 34 Filed 06/24/14 Page 1 of 34

ii
of Plaintiffs Wasatch Equality, Rick Alden, Drew Hicken, Bjorn Leines and Richard Varga
(Plaintiffs) in its entirety.
TABLE OF CONTENTS

INTRODUCTION ......................................................................................................................... iv
THE ALLEGATIONS IN THE COMPLAINT ............................................................................ vii
ARGUMENT .................................................................................................................................. 1
I. PLAINTIFFS CLAIM FAILS UNDER THE ZONE OF INTERESTS
TEST. ...................................................................................................................... 1
A. The Zone of Interests Test Controls Whether Plaintiffs May
Proceed. ....................................................................................................... 1
B. Plaintiffs Are Not a Class of People Protected by the Fourteenth
Amendments Zone of Interests. ................................................................. 2
C. The Fourteenth Amendment Does Not Protect Recreational
Interests. ...................................................................................................... 4
D. The Mere Allegation of Dissimilar Treatment Does Not Satisfy the
Zone of Interests Test.................................................................................. 5
II. PLAINTIFFS HAVE NOT SHOWN THAT THEY ARE
CHALLENGING FINAL AGENCY ACTION. .................................................... 7
III. PLAINTIFFS HAVE NOT SHOWN STATE ACTION. ....................................... 9
A. Generally. .................................................................................................... 9
B. Plaintiffs Have Not Satisfied the Symbiotic Relationship Test. ............... 11
C. Plaintiffs Have Not Satisfied the Nexus Test. .......................................... 13
D. Plaintiffs Have Not Satisfied the J oint Action Test. ................................. 14
E. Plaintiffs Have Not Satisfied the Public Function Test. ........................... 14
IV. PLAINTIFFS HAVE NOT SHOWN A PRIMA FACIE VIOLATION OF
THE EQUAL PROTECTION CLAUSE. ............................................................. 16

iii
A. Generally. .................................................................................................. 16
B. Plaintiffs Do Not Belong to a Valid Identifiable Group. .......................... 17
C. Plaintiffs Class-of-One Claim Does Not Survive. ............................... 18
D. Plaintiffs Cannot Show They Were Treated Differently Than
Others. ....................................................................................................... 20
E. Plaintiffs Have not Overcome the Presumption That Altas
Equipment Requirement is J ustified Under the Rational Basis
Test. ........................................................................................................... 21
F. Even if Animus Were a Relevant Inquiry (It is Not) Plaintiffs
Make no Such Showing. ........................................................................... 24
CONCLUSION ............................................................................................................................. 25


iv
INTRODUCTION

Plaintiffs begin a defense of their claim with this false tautology: Alta bans certain
people, not certain equipment, from its business. Plaintiffs misdirection starts from the very
beginning on page one, footnote one of the Complaint where Plaintiffs cleverly define
snowboarders as not only individuals who use snowboards, but the type of people perceived
as snowboarders. With this false definition in place, Plaintiffs allege that Alta discriminates
against people. This allegation, however, violates federal pleading standards requiring more
than labels and conclusions. Thus, there is no viable allegation that Alta excludes a class of
people. There is only an allegation that Alta prohibits certain equipment. If Plaintiffs could
prove otherwise, they would allege that they came to Alta wearing skis and that Alta nonetheless
barred them access because of who they are. In fact, while Plaintiffs go into great detail about
the history (surfing and skateboarding), style of dress, language, subculture, demographic, etc.
of the alleged class of people they claim Alta excludes, they have not come up with a single
individual from this alleged class who, when adhering to Altas simple equipment requirement,
was denied access to Alta. The absence of any such allegations is telling, and fatal to Plaintiffs
claim.
Additionally, this case is especially ripe for disposal under Rule 12. In fact, the critical
questions posed by Altas motion are questions that must be answered at this stage of the
pleadings. For example, in March of this year, the Supreme Court clarified that litigants like
Plaintiffs who cannot meet the zone of interests test may not continue past the pleading stage.
Similarly, Plaintiffs failure to present a question reviewable by this Court under the
Administrative Procedures Act (APA) demands dismissal under Rule 12. Finally, the

v
substantive issues at stake are governed largely by Rule 12 cases and an exceedingly low
standard for establishing a rational basis for the challenged action in this matter. For these
reasons, this case should be disposed of pursuant to Rule 12.
Substantively, Plaintiffs claim fails on multiple grounds. First, they cannot establish
prudential standing under United States Supreme Court law. To show prudential standing,
Plaintiffs must show that snowboarders are within the zone of interests of the Fourteenth
Amendment, a question determined by whether Plaintiffs are a class of people meant to be
afforded constitutional protection. Plaintiffs cannot make this showing under federal pleading
standards because the false tautology under which they proceed is easily undone. In short,
Plaintiffs are not a class of people denied access to Alta because there is no plausible allegation
that Alta excludes certain people, it merely prohibits a variety of equipment. Further, Plaintiffs
have not cited a single case finding that the Fourteenth Amendments zone of interests includes
the kinds of recreational or aesthetic interests Plaintiffs aim to vindicate. In the only case where
this argument was raised, the court dismissed the case on a Rule 12 motion.
The Court should also dismiss this case under Rule 12 because Plaintiffs claim is not
judicially reviewable under the APA, which permits review only of a final agency action.
Plaintiffs assert that Altas Annual Operating Plan (Plan) is a final agency action because it is
related to the Special Use Permit (Permit) issued by the Forest Service to Alta. This also is a
nonstarter, as it is irrelevant whether the Plan or the Permit constitute final agency action since
both documents are silent on Altas business decision regarding whether to allow the use of
snowboards. It was Alta, not the Forest Service, that made the decision regarding whether to
allow the use of snowboards, and thus, there is no agency action to be reviewed in the Plan or

vi
Permit. In short, Altas decisions about allowable equipment are no more final agency actions
than the other numerous business decisions Alta makes.
Plaintiffs claim also falls woefully short of the requirements under Rule 12 for showing
state action. The allegations Plaintiffs make to show state action are largely from the Permit and
federal regulations that govern the Permit. If showing state action were as simple as repeating to
a court the contents of a permit and its regulations, then all of the business decisions of all 120
ski areas on Forest Service land and tens of thousands of other permit holders and
concessionaires on public lands would automatically be subject to constitutional liability. That is
why the Tenth Circuit has carefully adopted a series of four tests for determining the existence of
state action, none of which Plaintiffs can satisfy. Hence, the Court should dismiss Plaintiffs
claim for this additional reason.
Even if Plaintiffs could show state action (and they cannot), Plaintiffs have not made out
the prima facie elements of the asserted equal protection claim. Curiously, Plaintiffs pay little
attention to the essential elements of their claim, preferring to maintain that snowboarders are the
victims of animus. Plain and simple, Alta has no animus towards those whose preferred
equipment is a snowboard. Regardless, the issue of animus in this case is irrelevant under
controlling Tenth Circuit law. The relevant question is whether Plaintiffs can demonstrate that
they are a class-of-one treated differently than similarly-situated comparators. As explained
below, Plaintiffs cannot make this showing.
Even if they could (and they cannot), the Court should grant Altas motion because
Plaintiffs cannot overcome the presumption under Tenth Circuit law that Altas equipment
requirement is justified under a rational basis standard. Plaintiffs themselves have supplied this

vii
Court with the rational basis for Altas equipment requirement in the allegations contained in
their own pleading, especially under the extremely lenient requirements supplied by United
States Supreme Court law. Thus, Rule 12 dismissal is warranted for this additional reason.
THE ALLEGATIONS IN THE COMPLAINT
Plaintiffs dedicate twelve pages of their Opposition to restyling the allegations in their
twenty-six page Complaint, for no apparent reason other than to repeat their conclusory
allegations and add, in violation of Rule 12, unsupported allegations from outside the pleadings.
As Alta stated in its opening brief, however, the Complaint is this Courts guide in determining
whether Plaintiffs can sustain their claim. (See Motion to Dismiss, p. 6 (discussing standard of
review).)


1
ARGUMENT

I. PLAINTIFFS CLAIM FAILS UNDER THE ZONE OF INTERESTS TEST.

A. The Zone of Interests Test Controls Whether Plaintiffs May Proceed.

Plaintiffs correctly point out that the gravamen of Altas standing argument is that
Plaintiffs lack required prudential standing to proceed. (Opp. at 29.) To establish prudential
standing, Plaintiffs further concede that they 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. (Id., citing Mount Evans Co. v. Madigan, 14 F.3d 1444,
1452 (10th Cir. 1994).)
In Lexmark International, Inc. v. Static Control Components, Inc., the United States
Supreme Court recently affirmed the zone of interests test as the proper inquiry for determining
whether a plaintiff may proceed with its claims at the pleading stage. 134 S.Ct. 1377 (2014).
Rather than styling the zone of interests test in terms of prudential standing, the Lexmark case
explains that the question at the pleading stage is whether the plaintiff falls within the class of
plaintiffs whom Congress has authorized to sue under the applicable statute. Id. at 1387.
1

1
Lexmark, a Lanham Act case, does not specifically state that its holding applies to purely constitutional claims
such as Plaintiffs. The prudential considerations that Lexmark appears to eschew in the context of the Lanham Act
remain relevant in purely constitutional claims. After all, the Supreme Court still recognizes that the zone of
interests test is a judicially self-imposed limit[] on the exercise of federal jurisdiction that should only be
modified or abrogated by Congress. Bennett v. Spear, 520 U.S. 154, 162 (1997) (citations omitted) (cited with
approval by Lexmark, 134 S.Ct. at 1389). Where, like here, a plaintiffs claims are not founded on a
congressionally-enacted statute that enumerates a specific law under which the plaintiff demands equal protection,
and instead is founded on broad and ill-defined claims of disparate treatment, prudential considerations remain
important. This is so because prudential standing is founded in concern about the properand properly limited
role of the courts in a democratic society. Id. In short, in the absence of a congressionally-created statute under
which a plaintiff might proceed, it is important to ensure that courts adjudicate only bona fide claims and
controversies within the zone of interest intended by the Constitution.

2
B. Plaintiffs Are Not a Class of People Protected by the Fourteenth Amendments
Zone of Interests.

Plaintiffs allege that they fall within the zone of interests of the Fourteenth Amendment
because they are a class of people . . . not welcome by Alta. (Opp. at 31 (citing Compl. 5).)
This conclusory allegation is not only false, but also violates the plausibility standard set forth
by the United States Supreme Court in Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555
(2007). In Twombly, the court held that a plaintiffs obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions . . . . Id. (citations omitted).
Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further, the
plausibility standard requires that a court engage in a context-specific task that requires [it] to
draw on its judicial experience and common sense. Id. at 679 (citation omitted).
There is no plausible allegation that Alta bans Plaintiffs or any class of people from
Alta. Other than the bare allegation that the equipment requirement identifies a group of
people perceived as snowboarders, and the conclusory allegation that Alta bans them from the
ski area, there is no allegation that Alta has actually banned Plaintiffs. (Compl. 5.) Nowhere in
the Complaint do Plaintiffs allege that they have visited Alta while complying with its equipment
requirement and still been banned from Altas business. Even Plaintiffs evidence from outside
the pleadings confirms that Alta does not ban anyone, but instead simply requires that everyone
follow the same equipment rules. Altas trail map attached as Opposition Exhibit 1 states that
[s]nowboarding is not allowed; it does not state that snowboarders are not allowed. The sign
on Altas ticket window depicted in Exhibit 1 states [n]o [s]nowboards; it does not say no

3
snowboarders. Altas website states that snowboarding is prohibited, but does not prohibit
snowboarders. (See Compl. 63.)
Thus, Plaintiffs do not allege that they are a class of people barred from Alta, but rather
that they are a class of people who reject Altas rules. Plaintiffs have not cited any case that
recognizes such a group as a class with standing under the Fourteenth Amendment. If the law
were otherwise, anyone who wanted to ignore any business rule need only find another like-
minded rule breaker and then claim class status.
Contrast Plaintiffs here with the plaintiffs in Village of Willowbrook v. Olech, 528 U.S.
562 (2000) (per curiam), where the Supreme Court first recognized the class-of-one theory
Plaintiffs advance. In Olech, the defendant city tried to arbitrarily enforce two different rules to
the detriment of a group of plaintiffs petitioning to connect to the citys water supply. Id. at 563.
Most residents had the benefit of only a fifteen-foot easement, while plaintiffs were forced to
accept a more expensive thirty-three-foot easement. Id. Clearly, Olech involved two different
rules applied to similarly situated individuals, obviously implicating the
Fourteenth Amendments zone of interests. In contrast, Alta has only one rule that it asks
everyone to follow. Those who disagree with that rule do not form a class of individuals
protected by the Fourteenth Amendments zone of interests. See Mitchell v. Cox, 2:12-CV-
00499-MMD, 2012 WL 6597781 (D. Nev. Dec. 17, 2012) (granting Rule 12 motion to dismiss
and holding that [n]ot every dissimilar treatment of allegedly similarly situated individuals
violates the Equal Protection Clause).
In short, Plaintiffs false tautology that Alta bans people, not certain equipment, is not
supported by the allegations in the Complaint, and defies the common sense analysis that this

4
Court must apply under Rule 12. Iqbal, 556 U.S. at 679. Hence, Plaintiffs cannot establish that
they are a class of people within the Fourteenth Amendments zone of interests.
C. The Fourteenth Amendment Does Not Protect Recreational Interests.

Plaintiffs claim that they seek to vindicate aesthetic, conservational, recreational, or
spiritual values, (Opp. at 30-31), yet they do not cite a single case finding that such interests are
within the zone of interests of the Fourteenth Amendment. In fact, the only case to analyze this
central question is Alexander v. First Wind Energy LLC, 2:11-CV-00364-GZS, 2012 WL
681838, at *1 (D. Me. Feb. 28, 2012), report and recommendation adopted, 2:11-CV-00364-
GZS, 2012 WL 966029 (D. Me. Mar. 21, 2012), aff'd (Oct. 23, 2012), cited in Altas opening
Motion to Dismiss. In that case, the court granted defendants motion to dismiss because the
plaintiffs claim that she was denied her recreational interests in the western mountains in which
she lives did not fall within the zone of interests emanating from the Fourteenth Amendment.
Id. at *5.
Plaintiffs attempt to distinguish Alexander by contending that it is unclear whether the
case involved an Equal Protection claim under the Fourteenth Amendment. (Opp. at 32.) It is
hard to discern what was unclear to Plaintiffs on this point as Alexander specifically found that
the plaintiffs attempt to vindicate her claimed recreational interests does not fall within any
established zone of interest I am able to identify emanating from the . . . Equal Protection Clause
of the Fourteenth Amendment. Alexander, 2012 WL 681838, at *5 (emphasis added). In short,
Alexander is directly on point and represents the only case in the nation to address the specific
question before this Court, that is, whether purely recreational values are within the zone of

5
interests protected by the Equal Protection Clause of the Fourteenth Amendment. The court
found that they are not, and dismissed the case on a Rule 12 motion.
D. The Mere Allegation of Dissimilar Treatment Does Not Satisfy the Zone of
Interests Test.

Plaintiffs argue that the Fourteenth Amendments zone of interests encompasses the
right of all similarly situated individuals to be treated equally. (Opp. at 31.) This argument
improperly conflates Plaintiffs zone of interests test laid out in Lexmark with the separate,
underlying prima facie elements of its claim.
2
Lexmark establishes that on the zone of interests
issue, Plaintiffs must first establish whether they fall[] within the class of plaintiffs whom
Congress has authorized to sue under the applicable statute. 134 S.Ct. at 1387. In contrast, to
prove the merits of their underlying Constitutional claim, Plaintiffs must show that they have
been intentionally treated differently from others similarly situated and that there is no rational
basis for the difference in treatment. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1216 (10th Cir. 2011) (discussing elements of equal protection claim). Plaintiffs must establish
their ability to proceed under the zone of interests test before the Court considers the separate,
underlying elements of Plaintiffs claim. If the rule were otherwise, the zone of interests test
required in Lexmark would be rendered meaningless because anyone who pleads the elements of
an equal protection claim would automatically satisfy the zone of interests test. That is not the
law.

2
Plaintiffs cite Club Italia Soccer & Sports Organization, Inc. v. Charter Township, 470 F.3d 286 (6th Cir. 2006),
overruled on other grounds as recognized by Davis v. Prison Health Servs., 679 F.3d 433 (6
th
Cir. 2012), in support
of their argument that every similarly-situated individual, no matter what is at issue, is protected by the
Fourteenth Amendment. Club Italia is not only non-controlling, it also improperly conflates the zone of interests
test and the separate prima facie requirements of the underlying claim. Hence, the Court should pay Club Italia no
heed.

6
Further, the cases Plaintiffs cite for the supposed proposition that anyone who pleads
dissimilar treatment automatically passes the zone of interests test no matter what their
circumstances or how they are affected by government decision-making bear no resemblance
to the instant dispute about recreational interests. For example, Plaintiffs cite Association of
Data Processing Service Organizations, Inc v. Camp, 397 U.S. 150 (1970), for the proposition
that the Fourteenth Amendment protects aesthetic, conservational, recreational, or spiritual
values. (Opp. at 30-31.) In fact, Camp has nothing to do with the Fourteenth Amendment and
instead is about whether a plaintiff has standing under the Bank Services Corporation Act.
3
Id.
at 155. Plaintiffs also cite Totes Isotoner Corp. v. United States, 594 F.3d 1346 (Fed. Cir.
2010), which involved a dispute over differing tariffs for mens versus womens gloves, which
the court found was unconstitutional sex discrimination that was plainly within the zone of
interests to be protected by the Equal Protection Clause. Id. At 1352. Next, Plaintiffs citeVote
Choice, Inc. v. Di Stefano, 814 F. Supp. 195 (D.R.I. 1993), which involved a question about
whether a claim that campaign finance laws restricting First Amendment rights to free speech
were within the Fourteenth Amendments zone of interests. Id. At 196-97. In short, Plaintiffs
cases are distinguishable on their facts, or involve immutable qualities like gender or undeniably
constitutionally-protected rights like free speech, and thus offer no guidance in a dispute about
the use of snowboards at Alta.

3
Camp referenced aesthetic, conservational, recreational, or spiritual values as examples of noneconomic
values that might fall within the zone of interests emanating from other statutes. Id. at 154.

7
Because Plaintiffs cannot establish that they constitute a class of individuals within the
zone of interests emanating from the Fourteenth Amendment, the Court should grant
Defendants motion for lack of Plaintiffs standing, without further analysis.
II. PLAINTIFFS HAVE NOT SHOWN THAT THEY ARE CHALLENGING FINAL
AGENCY ACTION.

Plaintiffs do not dispute that they must show that they are challenging a final agency
action under section 704 of the APA in order to proceed beyond the pleading stage. See Utah
Envtl. Congress v. Russell, 518 F.3d 817, 823 (10th Cir. 2008) (discussing APA claim against
Forest Service). Plaintiffs argue that they have raised such a challenge because the Plan
references some examples of restricted equipment and the Plan is somehow part of the Permit,
which the Plaintiffs argue is a final agency action. (Opp. at 26.)
It is irrelevant whether the Plan or the Permit are final agency actions reviewable under
the APA since both documents are silent regarding the use of snowboards at Alta, and since both
Alta and the Forest Service have confirmed that the decision to not allow snowboards was made
by Alta and not the Forest Service. To constitute a final agency action, (1) the action must mark
the consummation of the agencys decisionmaking process; and (2) the action must be one by
which rights or obligations have been determined, or from which legal consequences will flow.
Pennaco Energy, Inc. v. U.S. Dept of Interior, 377 F.3d 1147, 1155 (10th Cir. 2004) (quoting
Bennett, 520 U.S. at 177-78). There is no final agency action as to the snowboard ban because
it does not originate in the Plan or Permit, and the agency has not commenced much less
consummated a decision making process about it.

8
Altas decision about whether to allow snowboards is no different than a decision about
what food to sell at a resort restaurant on Forest Service property. Notably, the Plan requires that
Altas food services are subject to Forest Service approval. (Plan, VI(C).) But, the fact that
the restaurants are on Forest Service land and governed by the Permit and the Plan does not turn
every discretionary business decision Alta makes regarding specific food items into final
agency action any more than the Plans reference to equipment turns every business decision as
to specific allowable equipment into final agency action. Again, both the Permit and the Plan are
silent as to the issue of the use of snowboards at Alta and there is no final agency action as to
Altas business decision.
Because Altas equipment requirement was Altas decision, Plaintiffs case law is easily
distinguished, and, in fact, supports Defendants position. Plaintiffs cite Center for Native
Ecosystems v. Cables, 509 F.3d 1310 (10th Cir. 2007), and Oregon Natural Desert Association v.
United States Forest Service, 465 F.3d 977 (9th Cir. 2006). Both cases involve the Forest
Services issuance of Annual Operating Instructions (AOIs) pursuant to an earlier-issued
permit. Plaintiffs equate the AOIs to the Plan in the instant action. In both Cables and Oregon
Natural Desert, however, the challenged decision was a decision actually made by the
government, not a decision made by the permit holder. In Cables, the Forest Service was sued
because of its decision to allow grazing in habitat for a protected mouse species. 509 F.3d. at
1313. In Oregon Natural Desert, the plaintiff challenged the Forest Services decision to allow
grazing in a protected riparian area. 465 F.3d at 981. In short, both cases were about decisions
actually made by the Forest Service, unlike the equipment decisions made by Alta in this case.

9
III. PLAINTIFFS HAVE NOT SHOWN STATE ACTION.

A. Generally.

As established in Altas opening brief, private conduct is not subject to the
Fourteenth Amendments prohibitions unless the private actor is engaged in activity deemed to
be a state action. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1446 (10th Cir.
1995) (dismissing plaintiffs claim for lack of state action). Nearly all of the allegations that
Plaintiffs rely on arise out of the Permit or the federal regulations that describe a federal permit
holders obligations to the government. (Opp. at 35, Opp. Ex. 3.) If the state action analysis were
as simple as restating the contents of a permit and the federal regulation that govern the permit
holders responsibilities, then all 120 ski resorts operating under a Forest Service permit would
also be state actors. Indeed, myriad others from ranchers with grazing permits issued by the
Bureau of Land Management, to each oil and gas producer that holds one of over 47,000 federal
oil and gas leases,
4
to rock collectors collecting agates on federal lands would be state actors.
5

In short, if the Court accepts Plaintiffs state action analysis, all of the business decisions of
every enterprise doing business on federal lands pursuant to a permit would automatically be
subject to Fourteenth Amendment scrutiny.
Plaintiffs argument defies the historical test for finding state action as established
in J ackson v. Metropolitan Edison Co., 419 U.S. 345, 358 (1974) (affirming dismissal of
complaint for lack of state action). In J ackson, the Court considered whether a privately-

4
There were 47,427 federal oil and gas leases covering over 36,000,000 acres in effect in 2013, including 3,573
leases in Utah alone. See http://www.blm.gov/wo/st/en/prog/energy/oil_and_gas/statistics.html.
5
Each of these activities on federal lands, requires a permit. See 43 C.F.R. 4140.1(b)(1)(i) (describing rules for
grazing permits); 43 C.F.R. Part 3100 (administering federal oil and gas leases); 36 C.F.R. 2.1(a), 2.5(a)
(describing rules for rock and mineral collections).

10
owned utility that was subject to extensive regulation by the state could be considered a
state actor. Id. at 346. The Court held that [t]he mere fact that a business is subject to state
regulation does not by itself convert its action into that of the State . . . [n]or does the fact
that the regulation is extensive and detailed. Id. at 350. Specifically, the Court held that
the termination of an essential public service like electric service to the plaintiffs home
was not state action, even though the State had specifically authorized and approved the
general policy that permitted the private entity to terminate service. Id. at 352-54. In
finding no state action, the Court emphasized that where the commission has not put its
own weight on the side of the proposed practice by ordering it, does not transmute a
practice initiated by the utility and approved by the state into state action. Id. at 357.
This was true even though the Court found that the utility may frequently be required by
the state regulatory scheme to obtain approval for practices a business regulated in less
detail would be free to institute without any approval from a regulatory body. Id.
In short, in the J ackson case the Supreme Court found that there was no state action,
notwithstanding that 1) the entity was highly regulated by the state; 2) the regulation was
extensive and detailed, 3) the entity in question provided an essential public service,
4) the issue involved when and how the entity could terminate or refuse to provide this
essential public service, and 5) the state had specifically authorized and approved the rule
in question regarding such termination or refusal of service. None of these factors are
present here.
As in J ackson, Plaintiffs cannot show that the Forest Service ordered the
snowboard ban. See id. Nor can it be said that providing opportunities for recreational

11
skiing is an essential public service similar to providing electricity to peoples homes.
Thus, even if it is true that the Forest Service exercises some oversight over various aspects
of Altas operations, that is insufficient to show state action.
When the government takes action through private institutions, and with the aid of
private parties, not every action of those private parties is state action. Blum v. Yaretsky, 457
U.S. 991, 1028 (1982) (finding no state action by state-regulated nursing homes). Instead, the
United States Supreme Court requires that litigants begin the state action analysis by identifying
the specific conduct of which the plaintiff complains. Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 51 (1999) (citing Blum, 457 U.S. at 1004 (Faithful adherence to the state action
requirement . . . requires careful attention to the gravamen of the plaintiffs complaint.)).
To the extent that Plaintiffs devote any analysis to the gravamen of their own
Complaint, they do so fleetingly, pointing to only two instances of governmental involvement in
the actual snowboard ban at issue. First, Plaintiffs claim that the presence of the Forest
Service flag and logo constitutes state action. (Opp. at 36.) Second, Plaintiffs allege that an Alta
official once stated that the Forest Service was OK with the equipment requirement. (Id. at
37.) These two instances, even together with Plaintiffs other allegations, do not satisfy any of
the tests used to determine state action in the Tenth Circuit.
B. Plaintiffs Have Not Satisfied the Symbiotic Relationship Test.

Plaintiffs conclusory contention that a Forest Service flag and logo somehow
demonstrates state action simply does not pass muster under the symbiotic relationship test that
Plaintiffs pled in their Complaint. (Compl. 57.) That test requires a showing that the
government has so far insinuated itself into a position of interdependence with a private party

12
that it must be recognized as a joint participant in the challenged activity. Gallagher, 49 F.3d
at 1451. As established above, where the government has not put its own weight on the side of
the proposed practice by ordering it, there is no state action. J ackson, 419 U.S. at 357. A
ceremonial flag and an occasional logo hardly shows that the federal government has put its
own weight on the snowboard ban by ordering it.
Next, Plaintiffs make much of their allegation that an Alta official once allegedly said
that the Forest Service was OK with the equipment restriction. (Opp. at 37.) This allegation is
merely a verbalization that the Forest Service allows Alta to make any number of business
decisions on how to operate its business, the equipment requirement being one such decision.
Action taken by private entities with the approval or acquiescence of the State is not state action.
Am. Mfrs. Mut. Ins., 526 U.S. at 52 (finding no state action even though the state had
specifically authorized and approved the policy in question) (citations omitted); see also Blum,
457 U.S. at 1004-05 (Mere approval of or acquiescence in the initiatives of a private party is not
sufficient to justify holding the State responsible for those initiatives under the terms of the
Fourteenth Amendment.).
6

Plaintiffs go on to argue that under the symbiotic relationship test, if the Forest Service
had not issued the Permit to Alta, Alta would no longer exist, and therefore, Alta must be a state
actor. (Opp. at 40-41.) This argument misses the basic point that the state action analysis
requires a focus not on the overall relationship between private and state actors, but on the

6
Plaintiffs also argue that snowboard use is not explicitly and officially prohibited in the Plan approved by the
Forest Service, as if this strengthens their argument. (Opp. at 38-39.) This argument merely reinforces two points:
1) there is no symbiotic relationship or state action as relates to the snowboard ban, 2) there was no final agency
action regarding the snowboard ban.

13
specific conduct of which the plaintiff complains, i.e., did the Forest Service order the
snowboard ban? Am. Mfrs. Mut. Ins., 526 U.S. at 51. If the law were otherwise, then every
routine business decision Alta ever made, from what items to sell in its stores to what food to
serve in its restaurants, would be deemed state action. For these reasons, Plaintiffs allegations
do not show state action under the symbiotic relationship test.
C. Plaintiffs Have Not Satisfied the Nexus Test.

Plaintiffs argue they satisfy the nexus test by citing Gallagher for the proposition that
where the challenged conduct directly resulted from the States policies then the required
nexus would be established. (Opp. at 40 (citing Gallagher, 49 F.3d at 1450).) Importantly,
Gallagher went on to find that the challenged actions in that case (pat-down searches), were
conducted pursuant to a policy formulated by the private actor, not the university. Gallagher,
49 F.3d at 1450. The plaintiff in Gallagher also could not establish that the Universitys rules
and policies influenced the formulation or execution of this policy. Id. Consequently, the
Gallagher court found no state action.
Gallagher is the same as the case at bar. Here, the alleged snowboard ban is conducted
pursuant to a policy formulated by the private entity, Alta, not by the Forest Service. In fact,
Plaintiffs concede that snowboards are not explicitly or officially prohibited by the Forest
Services Plan. (Opp. at 38-39.) Instead, it is Alta who reserves the right to exclude any type
of skiing device that they deem creates an unnecessary risk to other skiers and/or the user of the
device, or any device they deem causes undue damage to the quality of the snow, or is not
consistent with their business management decisions. (Plan VIII(D)(4) (emphasis added).)
The Plan further states that it is Alta, not the Forest Service, who may restrict [u]nauthorized

14
use of equipment or downhill devices and [u]phill or downhill travel that is not approved by
Alta Ski Area. (Id. VIII(E)(7), (13), (14).) In short, Plaintiffs utterly fail to establish state
action under the nexus test because they cannot show that the so-called snowboard ban directly
resulted from Forest Service policy. See Gallagher, 49 F.3d at 1450.
D. Plaintiffs Have Not Satisfied the Joint Action Test.

Plaintiffs repeatedly contend that they meet the joint action test by Alta and the
governments conduct as described above. (Opp. at 41.) This non-specific citation strategy
signals the weakness in Plaintiffs argument. First, the joint action test requires a showing that
state officials and private parties have acted in concert, Gallagher, 49 F.3d at 1453, and the
focus must be on the specific conduct of which the plaintiff complains. See Am. Mfrs. Mut.
Ins., 526 U.S. at 51. The conduct described above in Plaintiffs pleadings focuses on the
general and expected interactions between any private party awarded a permit by the federal
government. (See Opp. at 33-41.) Thus, Plaintiffs point out the signage and that Alta operates
under a federal permit. These allegations, however, say nothing about the specific conduct of
which the plaintiff[s] complain. See Am. Mfrs. Mut. Ins., 526 U.S. at 51. Regarding the
specific conduct at issue, the so-called snowboard ban, the Permit and the Plan firmly establish
that there was no concerted activity between Alta and the Forest Service. The Plaintiffs have not
satisfied the joint action test.
E. Plaintiffs Have Not Satisfied the Public Function Test.

Plaintiffs argue that they can show state action via the public function test because [f]ew
public functions are as traditionally and exclusively performed by the Government as the
administration of the national parks and forests of the United States. (Opp. at 41.) Again, if

15
Plaintiffs simplistic argument were correct, all 120 ski resorts and all of the tens of thousands of
other businesses operating on federal land under a federal permit would be held to be
administering the forests of the United States, and thus all of their business decisions would be
transformed into state action. This argument is false and misses the basic point that the public
function test is limited strictly to circumstances where private actors perform[] functions
traditionally the exclusive prerogative of the State. Natl Broadcasting Co. v.
Communications Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir. 1988) (quoting
J ackson, 419 U.S. at 353). Plaintiffs cannot credibly argue that running a ski resort is
traditionally the exclusive prerogative of the State, like running election booths for example.
Plaintiffs then argue that the governments issuance of a ski area permit is a major
[f]ederal action, citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 336
(1989). Robertson, however, is not even a state action case and has nothing to do with the public
function test, which focuses on the private actors conduct. Similarly, Plaintiffs citation to
Evans v. Newton, 382 U.S. 296 (1966), does not further their argument. Evans, a case about
excluding African Americans from a city park, does not specifically discuss the public function
test. More importantly, in that case the city itself, not a private actor, kept the park segregated
for some years, and actually was the park operator. Id. at 297-98. Because of this tradition of
municipal control, the Supreme Court properly found that the racial segregation of a public park
implicated the Fourteenth Amendment. Id. at 301. It is difficult to imagine how this race
discrimination case even remotely applies to the analysis here.

16
Because Plaintiffs allegations do not show state action with respect to the specific
conduct that is the subject of their Complaint the snowboard ban the Court should dismiss
Plaintiffs claim without any further constitutional analysis.
IV. PLAINTIFFS HAVE NOT SHOWN A PRIMA FACIE VIOLATION OF THE
EQUAL PROTECTION CLAUSE.

A. Generally.

While there is no need to consider the constitutional aspects of Plaintiffs claim because
they cannot show standing, final agency action, or state action, it is clear that Plaintiffs have not
stated a sustainable equal protection claim. Plaintiffs meekly footnote an argument that their
constitutional claim may be subject to the strict level of scrutiny reserved for fundamental rights
and for suspect classes. (Opp. at 45, n.16) But, their timidity in advancing this argument
telegraphs that even they do not take such an argument seriously, especially since they expressly
pled a rational relationship theory in their Complaint. (Compl. 106.) The rational
relationship test is the correct test, and plaintiffs fall far short of satisfying the standard.
Plaintiffs begin their equal protection analysis by suggesting that they are proceeding
under two different constitutional theories, a class-based theory and class-of-one principle.
(Opp. at 45.) It is unclear whether the Tenth Circuit even recognizes Plaintiffs class-based
theory of recovery under the Equal Protection clause. For example, Kansas Penn, the Tenth
Circuits most recent pronouncement regarding claims like Plaintiffs, does not mention a class-
based theory of recovery and analyzes only a class-of-one claim. See 656 F.3d at 1216. In any
event, Plaintiffs claim fails under either principle.

17
B. Plaintiffs Do Not Belong to a Valid Identifiable Group.

If the Court is inclined to consider Plaintiffs class-based theory, the Court should
dismiss Plaintiffs claim because Plaintiffs do not comprise a valid cognizable class. In short,
a group of snowboarders is too subjectively defined and indeterminate to warrant Fourteenth
Amendment protection. [S]ome groups, particularly those deemed to be distinguishable from
others by immutable characteristics, such as African-Americans, women, and the mentally
retarded, are so clearly accepted as objectively identifiable that no extended analysis is needed.
Farber v. City of Paterson, 440 F.3d 131, 137 (3d Cir. 2006) (analyzing identifiable groups under
Section 1985). [H]owever, it is not always a simple matter, particularly when what is at issue is
a putative class defined, as here, by mutable characteristics such as opinion or conduct. Id.
Thus, where the class a plaintiff may seek to identify is so subjectively defined and wholly
indeterminate that [t]here is simply no way to characterize [it] as an identifiable segment of the
community by reference to any objective criteria . . . it cannot serve as a cognizable class . . . .
Id. at 138.
Under this authority, the false tautology that underlies Plaintiffs entire claim shows that
they cannot establish that they are a valid cognizable class. In short, Plaintiffs are not an
identifiable group of people banned from Alta. They are, if anything, a group of individuals who
reject Altas rules. Thus, Plaintiffs are defined by their opinion [and] conduct, not by who
they are, and thus they are not a constitutionally cognizable class. See id. at 137-38. If
snowboarders are an identifiable group, then so are sledders and inner-tubers wanting to play
their sport at Alta. Likewise, bait-casting fishermen become identifiable groups with
Fourteenth Amendment rights to fish in artificial-bait-only waters. And, any golfer wanting to

18
wear flip-flops on a municipal golf course requiring spikes (and some even certain types of
spikes), could file suit under the Fourteenth Amendment. There are an unending number of
examples of land use decisions that would be upended under Plaintiffs interpretation of the
Fourteenth Amendment from trail use restrictions, to wake/motor free zones in lakes, to tent-
only campgrounds. Both Alta and the Forest Service have given the Court numerous other
examples in their opening briefs. In short, if Plaintiffs legal theories prevail, anyone who seeks
to violate any rule or business decision can simply claim to be a class, and government entities
attempting to regulate the use of public lands and resources face special interest law suits from
all quarters.
C. Plaintiffs Class-of-One Claim Does Not Survive.
Plaintiffs class-of-one theory also fails under the controlling law set forth in Kansas
Penn, which requires that Plaintiffs establish the following prima facie case:
Since Olech, we have refined the elements for a class-of-one claim.
To prevail on this theory, a plaintiff must first establish that others,
similarly situated in every material respect were treated
differently. A plaintiff must then show this difference in treatment
was without rational basis, that is, the government action was
irrational and abusive, and wholly unrelated to any legitimate
state activity. This standard is objective if there is a reasonable
justification for the challenged action, we do not inquire into the
government actors actual motivations.
656 F.3d at 1216 (internal citations omitted). Plaintiffs cannot establish any of these required
elements.
As an initial matter, Plaintiffs completely ignore that Kansas Penn requires that courts
approach class-of-one cases with caution because the Tenth Circuit is wary of turning even
quotidian exercises of government discretion into constitutional causes. Id. (citation omitted).

19
Similarly, Plaintiffs ignore Kansas Penns admonishment that policy concerns in class-of-one
cases are magnified with challenges to low-level government decision-making, which often
involves a great deal of discretion. Id.
This Court can easily address Kansas Penns concerns about claims like Plaintiffs by
simply applying controlling Tenth Circuit law to the instant matter. To begin with, Plaintiffs
cannot meet the first prima facia element of an equal protection claim under Kansas Penn
because they cannot show that they are similarly situated in every material respect to the
relevant comparator. Id. This is a substantial burden, requiring a showing that no rational
person could regard the policy as justified. Id. at 1217-18.
Plaintiffs argue they are similarly-situated to their relevant comparators because skis are
nearly indistinguishable from snowboards. (Opp. at 52.) If the two devices are so similar,
what is the purpose of this action? Plaintiffs may simply access Alta wearing approved devices
that are nearly indistinguishable from snowboards. No doubt Plaintiffs are unwilling to accept
the consequences of their own argument, which highlights the fact that snowboarding and skiing
are in fact, quite different. Specifically, snowboarding requires that the user stand sideways,
rather than downhill. Plaintiffs Complaint pleads that some complain that a snowboard has a
blind spot that one on skis does not. Wearing a snowboard according to Plaintiffs, means you
enjoy a subculture to which, as soon as one dons skis, one apparently does not belong.
(Compl. 5, 32-33, 73, 83-84.) Skiers use poles and can skate or pole on the flat terrain
and traverses that are found at Alta, while those on snowboards cannot. (Memo. in Supp. at 26.)
Perhaps most importantly, common sense dictates that skiing and snowboarding while both are

20
performed on snow simply involve different equipment, as evidenced by simply turning on the
television and watching the Olympics, X Games, Dew Tour, etc.
Plaintiffs have not satisfied their substantial burden of showing that comparators be
similarly situated in all material respects, to account for differences that could legitimately
be based on a number of different factors. Kansas Penn, 656 F.3d at 1218. Plaintiffs cannot
escape that the business, demographic, cultural, marketing, and equipment differences that
Plaintiffs themselves include in their pleadings easily justify Altas equipment requirement. See
id. Because Plaintiffs cannot show that they are similarly-situated to the relevant comparators,
the Court should dismiss their complaint before even analyzing the rational basis for Altas
equipment requirement. Id.
D. Plaintiffs Cannot Show They Were Treated Differently Than Others.

Plaintiffs ignore perhaps the most obvious element of their prima facie claim that they
must show they are treated differently than others. Id. at 1216. Quite simply, everyone,
including Plaintiffs, is subject to Altas equipment requirement. And, like everyone else who
abides by that rule, Plaintiffs have full, unfettered access to Alta. Notwithstanding the straw
argument that pervades Plaintiffs entire action, Alta bans certain equipment, not certain people,
from its business. No doubt, Plaintiffs will argue that Alta enacted the equipment requirement to
purposefully single out snowboarders and bar them access to the mountain. (Opp. at 31.)
However, there is no plausible allegation, especially under the common sense analysis that the
Supreme Court requires, that Alta bans people rather than equipment. See supra, p 2 (citing
Iqbal, 556 U.S. at 678-79). This is further shown by the fact that Alta also bans innertubes,
sleds, snowbikes, snowtrikes, snowskates (like a skateboard for the snow), ski wings, and other

21
unapproved devices.
7
This highlights that Plaintiffs bold statement claiming that whether a
device is prohibited by Alta depends on the identity of the individual using it, (Opp.at 47 n.18),
is utter nonsense. If Plaintiffs attempted to ride snowtrikes at Alta, and were turned away, would
they still sue claiming that they were turned away because of who they are snowboarders or
would they change gears and claim to be snowtrikers? Plaintiffs simply cannot show that they
were treated differently from any other Alta guests.
E. Plaintiffs Have not Overcome the Presumption That Altas Equipment
Requirement is Justified Under the Rational Basis Test.

Even if Plaintiffs can show that they represent either a cognizable class or a valid class-
of-one (and they cannot), the Court should still grant Altas motion because Plaintiffs cannot
overcome the strong presumption that Altas equipment requirement is rational. Plaintiffs claim
must be evaluated under the least exacting tier of scrutiny the rational basis test. See Hodel
v. Indiana, 452 U.S. 314, 331-33 (1981) (discussing rational basis review). However, Plaintiffs
spend little time addressing the rational basis test, preferring instead to focus on their repeated
animus refrain, and conveniently ignore controlling Tenth Circuit and United States Supreme
Court law establishing that Altas rational basis is presumed. See Teigen v. Renfrow, 511 F.3d
1072, 1083 (10th Cir. 2007) (requiring plaintiff to overcome the presumption of rationality.);
see also Heller v. Doe, 509 U.S. 312, 320-21 (1993) (holding plaintiffs have the burden to
establish that the policy is unconstitutional and negative every conceivable basis which might
support it, whether or not the basis has a foundation in the record). Highlighting how very low
this standard really is, Defendants have no obligation to produce evidence to sustain the

7
Plaintiffs argument that the Plan lists all unapproved devices except for snowboards is simply wrong. (Opp. at 38-
39.)

22
rationality of [the snowboard ban], and it is not subject to courtroom factfinding and may be
based on rational speculation unsupported by evidence or empirical data. Heller, 509 U.S. at
320 (emphasis added).
Plaintiffs contend that Altas rational basis is circular because it has the effect of only
barring people who are perceived as snowboarders. (Opp. at 46-47.) Plaintiffs cite U.S.D.A. v.
Moreno, 413 U.S. 528 (1973), for the proposition that if a state action is to be constitutionally
sustained, the challenged classification must rationally further some legitimate governmental
interest other than those specifically stated in the [] declaration of policy. (Opp. at 46-47.) In
Moreno, Congress passed a law against giving hippies food stamps based on an expressed
policy interest in denying hippies from using food stamps. Id. at 534-35. In essence, Moreno
held that it was, to use Plaintiffs words, circular, for Congress to justify its policy of denying
hippies access to food stamps with a claimed governmental interest in denying hippies access to
food stamps. See id.
Moreno does not apply on its face because Altas restriction applies to equipment, not
people. And, Altas interest behind its equipment policy has nothing to do with restricting
certain people snowboarders or anyone else. Instead, as Plaintiffs have correctly pled,
Altas interest is in maintaining a business model [that] caters to a skier-only market, (Compl.
73-74), and maintain[ing] a skiing culture. (Id. 74.)
8
Importantly, this interest is not
accomplished by restricting only snowboards; instead, Altas equipment requirement prevents
the use of innertubes, sleds, snowbikes, snowtrikes, snowskates, ski wings, snowboards, and

8
Plaintiffs can hardly criticize such cultural interests since they themselves proudly allege that snowboarding
inspired its own movement and counterculture. (Compl. 32.)

23
other unapproved devices. The fact that Altas equipment rule effects those who enjoy each one
of these different past-times further demonstrates that it does not address only the use of
snowboards and thus is not circular as Plaintiffs claim.
Plaintiffs additional criticisms of Altas rational bases for its equipment requirement are
equally unavailing. Plaintiffs argue that skis are so similar to snowboards that they might be
confused with snowboards and that thus a policy distinguishing between the two is irrational.
This argument simply defies easily-observed distinctions between the two devices, distinctions
made by the International Olympic Committee and others, who, notably, have decided that due
to the different equipment used in these two sports, the two disciplines do not compete against
one another in competition. Plaintiffs further speculate that Alta would make more money if it
allowed snowboards and that therefore Altas asserted business justification for its skier-only
policy is unsupported. But this argument, while pure speculation, contradicts Plaintiffs own
Complaint where they allege that one informal survey established that area businesses would
lose money if Alta abandoned its policy. (Compl. 79.)
Plaintiffs also complain that sometimes skiers momentarily ski backwards at Alta and
that snowboarding is allowed at other federally-permitted resorts. Plaintiffs perceive these
alleged inconsistencies as undermining Defendants rational basis argument. However, [i]n the
ordinary case, a law will be sustained . . . even if the law seems unwise or works to the
disadvantage of a particular group, or if the rationale for it seems tenuous. Romer v. Evans, 517
U.S. 620, 632 (1996) (discussing rational basis under Fourteenth Amendment).
Most importantly, all of plaintiffs arguments while easily refuted ignore the
applicable standards, i.e.: 1) that rationality is presumed, 2) Plaintiffs have the burden of

24
overcoming this presumption, 3) Plaintiffs must completely negate every conceivable basis
which might support it (whether or not the basis has a foundation in the record), 4) Defendant
need have no evidence of the rationality of its equipment requirement, 5) the presumed
rationality of the rule is not subject to courtroom factfinding and may be based on rational
speculation unsupported by evidence and empirical data. Under this standard, the case should be
dismissed.
F. Even if Animus Were a Relevant Inquiry (It is Not) Plaintiffs Make no Such
Showing.

Because Alta has established a reasonable justification for its equipment requirement, the
Court may not inquire into the government actors actual motivations. Kansas Penn, 656 F.3d
at 1216. For this reason, Plaintiffs description of the cross they bear as the supposed objects of
hostility is irrelevant. Nonetheless, if the Court is inclined to consider animus in its analysis,
Plaintiffs have not made a sufficient showing to overcome Altas reasonable justification for its
equipment requirement. In Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836 (10thCir. 2005),
the Tenth Circuit held that the plaintiffs in that case were required to show that the defendant
was engaged in a spiteful effort to get the plaintiff. Id. at 848-49. Plaintiffs cannot show that
Alta is out to get snowboarders. Instead, all that Plaintiffs have plausibly pled is that Alta has
an equipment requirement that bans a wide variety of equipment not just snowboards and
applies to all people. Again, Alta does not exclude certain people, it prohibits certain equipment.
Plaintiffs seem to have now abandoned any effort to satisfy the standard that they are
some kind of politically unpopular group, as set forth in the Romer case, and as they described
themselves in their Complaint. (Compl. 72.) Setting aside the popularity of snowboarding in

25
the 2014 Winter Olympics, Plaintiffs cannot seriously contend that they possess immutable
characteristics like other groups who can genuinely lay claim to the need for constitutional
protection because of who they are. See Farber, 440 F.3d at 137-38.
Moreover, Plaintiffs animus case is built on allegations about third-parties alleged
comments. For example, Plaintiffs quote from what appear to be edited YouTube videos
(apparently created by Plaintiffs) that depict third parties making comments about snowboarding.
While the comments may reflect a few individual skiers personal opinions, they are not
allegations about how Alta or the Forest Service perceive snowboarders. (Opp. at 15; Compl.
84.)
Without more, Plaintiffs allegations of animus amount to nothing more than bare
assertions of animus. Bartell v. Aurora Pub. Sch., 263 F.3d 1143, 1149 (10th Cir. 2001)
(finding bare allegations of animus did not support equal protection claim), overruled on other
grounds by Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213 (10th Cir. 2008). There is no
plausible allegation that certain individuals (as opposed to equipment) are banned from Alta or
that anyone is out to get Plaintiffs. Thus, even if animus is a required element of a class-of-
one claim, Plaintiffs cannot show it. Hence, the Court should grant Altas motion.
CONCLUSION
For the above-stated reasons, Alta respectfully moves this Court to dismiss Plaintiffs
Complaint with prejudice.

26

DATED this 24th day of J une, 2014.

RAY QUINNEY & NEBEKER P.C.

/s/ Rick Thaler
Frederick R. Thaler
Robert O. Rice

Attorneys for Defendant Alta Ski Lifts Company

27
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of J une, 2014 I caused a true and correct copy of the
foregoing REPLY MEMORANDUM IN SUPPORT OF DEFENDANT ALTAS MOTION
TO DISMISS with the Clerk of Court using the CM/ECF system which sent notification of such
filing to the following:
J onathan R. Schofield
PARR BROWN GEE & LOVELESS
185 S State St Ste 800
Salt Lake City, UT 84111
jschofield@parrbrown.com

Michael S. Anderson
manderson@parrbrown.com

Rachel L. Wertheimer
rwertheimer@parrbrown.com

/s/ Melanie Knecht-Martin

1283456


Alta Renewed Motion To Dismiss Over Snowboard Ban

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Alta Renewed Motion To Dismiss Over Snowboard Ban

Загружено:

Авторское право:

Доступные форматы

FREDERICK R.

Вам также может понравиться