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Wasatch Equality Alta Motion to Dismiss

Wasatch Equality Alta Motion to Dismiss

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Published by Ben Winslow
A filing by the U.S. Attorney's Office for Utah asking a judge to dismiss Wasatch Equality's lawsuit against the federal government and the Alta Ski Resort over its ban on snowboarders.
A filing by the U.S. Attorney's Office for Utah asking a judge to dismiss Wasatch Equality's lawsuit against the federal government and the Alta Ski Resort over its ban on snowboarders.

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Published by: Ben Winslow on Apr 01, 2014
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DAVID B. BARLOW, United States Attorney (#13117) CARLIE CHRISTENSEN, Assistant United States Attorney (#0633) JARED C. BENNETT, Assistant United States Attorney (#9097) 185 South State Street, #300 Salt Lake City, Utah 84111 Telephone: (801) 524-5682 Attorneys for the United States of America
────────────────────────────────────────────────────────────────
 IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH CENTRAL DIVISION
────────────────────────────────────────────────────────────────
 WASATCH EQUALITY; RICK ALDEN; DREW HICKEN; BJORN LEINES; AND RICHARD VARGA, Plaintiffs, vs. ALTA SKI LIFTS COMPANY, d.b.a. ALTA SKI AREA; UNITED STATES FOREST SERVICE; and DAVID WHITTEKIEND, Wasatch-Cache National Forest Supervisor; Defendants. Civil No. 2:14CV26DB
MOTION TO DISMISS
Honorable Dee Benson
────────────────────────────────────────────────────────────────
 Under  Fed. R. Civ. P. 12(b)(1) and 12(b)(6), the United States Forest Service
(“For 
est
Service”) and David Whittekiend (collectively “Federal Defendants”) move to dismiss Plaintiff’s
Complaint because this Court lacks subject matter jurisdiction and because Plaintiffs have failed to state a claim on which relief can be granted. Specifically, this Court lacks subject matter  jurisdiction because the United States has not waived its sovereign immunity. Further, even assuming a waiver of sovereign immunity, Plaintiffs have failed to state a claim under the Fifth Amendment. Consequently, this Court should dismiss the Complaint with prejudice.
Case 2:14-cv-00026-DB Document 25 Filed 03/31/14 Page 1 of 24
 
2
S
TATUTORY AND
EGULATORY
B
ACKGROUND
 
In 1986, Congress enacted the “National Forest Ski Area Permit Act” (“the 1986 Act”).
authorized the Secretary of Agriculture (“the Secretary”) to issue ‘“ski area permits’ for the use
and occupancy of suitable lands within the National Forest System for nordic and alpine skiing operations and purposes
.”
16 U.S.C. § 497b(b) (1988) (emphasis added). In 2011, Congress amended the 1986 Act by enacting
the “Ski Area Recreational Opportunity Enhancement Act” 
Pub. L. No. 112-46, 125 Stat. 538 (codified as 16 U.S.C. § 497b  (2012)), which authorized
the Secretary to issue “‘ski area permits’ for the use and occupancy of
suitable lands within the National Forest System for skiing and other snow sports and recreational
uses authorized by this section.”
16 U.S.C. § 497b(b) (emphasis added). Both the 1986 and 2011 Acts established the following parameters, among others, on ski area permits: [ski area permits] shall ordinarily be issued for a term of 40 years . . . shall encompass such acreage as the Secretary determines sufficient and appropriate to accommodate the permitt
ee’s needs for ski operations and appropriate
ancillary facilities . . . and shall be subject to a permit fee based on fair market value . . . .
. § 497b(b). Congress also mandated that the Secretary use a lengthy formula to determine the
ski area’s
fair-market value
“permit fee.”
 § 497c(b)(1) (2012). In addition to a fee, ski area  permits also require permittees to submit an annual operating plan by November 15 of each year. Forest Serv. Handbook 2709.14 (61.3). At a minimum, the annual operating plan must address: (1) ski patrol and first aid; (2) communications; (3) signs; (4) general safety and sanitation; (5) erosion control; (6) accident reporting; (7) avalanche control; (8) search and rescue; (9) boundary management; (10) vegetation management; (11) designation of representatives; (12) trail routes
Case 2:14-cv-00026-DB Document 25 Filed 03/31/14 Page 2 of 24
 
3 for Nordic skiing; and (13) explosive magazine security.
 Additionally, permittees must indemnify the United States for claims that it may suffer as a result of the permittees
 use or occupancy of National Forest System land. 36 C.F.R. § 251.56(d) (2013). 
F
ACTUAL
B
ACKGROUND
 
The Forest Service issued a 40-year ski area permit to Alta on October 25, 2002
(“the Permit”)
 under the 1986 Act.
1
 Exhibit A. The Permit allowed Alta to operate on 1802.7 acres of  National Forest System land. ECF 2, ¶ 43; Exhibit A. The Permit also requires Alta to pay a  permit fee that is calculated pursuant to the congressionally-mandated formula. Exhibit A at 6-8. Based on this formula, Alta has paid the United States permit fees in the amounts of $473,792.00; $449,005.00; $471,440.00; and $304,396.00 for the years 2009 through 2012 respectively. ECF  No. 2, ¶ 56.
Alta’s permit fee— 
which represents a percentage of revenue from all of its sources of income
 — 
amounts to less than
0.1% of the Forest Service’s
annual budget.
See, e.g.
, Pub. L.  No. 112-10, §§ 1741 to 1747 (appropriating over $5 billion to the Forest Service for fiscal year 2012). As of 2011, Alta was merely 1 of 120 resorts that paid a permit fee to the Forest Service under a ski area permit. S. Rep. 112-55 at 2 (2011).  As required in the Forest Service Handbook, the Permit also requires Alta to submit an annual operating plan by November 15 of each year. Exhibit A at 4. Alta submitted its annual operating plan for the 2013-14 ski season
(“the Operating Plan”) on November 6, 2013
, and the Federal Defendants approved it on December 10, 2013. Exhibit B at 1. Among the many topics
1
 To the extent Plaintiffs challenge the 2002 permit, such challenge is far too late.
, 693 F.3d 1239, 1245 (10th Cir. 2012) (stating that general limitations period for most claims against the United States is six years).
Case 2:14-cv-00026-DB Document 25 Filed 03/31/14 Page 3 of 24

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