Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Save to My Library
Look up keyword
Like this
2Activity
0 of .
Results for:
No results containing your search query
P. 1
U.S. Forest Service memorandum in support of motion to dismiss Wasatch Equality lawsuit

U.S. Forest Service memorandum in support of motion to dismiss Wasatch Equality lawsuit

Ratings: (0)|Views: 1,138|Likes:
Published by Ben Winslow
The U.S. Forest Service memo in support of a motion to dismiss a lawsuit filed by Wasatch Equality over Alta Ski Area's snowboarding ban.
The U.S. Forest Service memo in support of a motion to dismiss a lawsuit filed by Wasatch Equality over Alta Ski Area's snowboarding ban.

More info:

Published by: Ben Winslow on Jul 04, 2014
Copyright:Traditional Copyright: All rights reserved

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

07/13/2014

pdf

text

original

 
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
REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
Honorable Dee Benson
────────────────────────────────────────────────────────────────
 The United States Forest Service
(“Forest Service”) and
David Whittekiend (collectively
“Federal Defendants”)
file this reply memorandum in support of their Motion to Dismiss, ECF  No. 21
. As shown below and in the Federal Defendants’
Motion to Dismiss, this Court lacks subject matter jurisdiction because the United States has not waived its sovereign immunity, and Plaintiffs have failed to state a claim under the Fifth Amendment. Consequently, this Court should dismiss this action with prejudice.
Case 2:14-cv-00026-DB Document 38 Filed 06/27/14 Page 1 of 27
 
2
Table of Contents
Case 2:14-cv-00026-DB Document 38 Filed 06/27/14 Page 2 of 27
 
3
A
RGUMENT
 I.
 
PLAINTIFFS HAVE FAILED TO ESTABLISH A WAIVER OF SOVEREIGN IMMUNITY BECAUSE THEY CANNOT SHOW THAT A
LTA’S SNOWBOARD
PROHIBITION CONSTITUTES STATE ACTION
The Federal Defendants’ Motion to Dismiss
demonstrated Plaintiffs
 failure to show a
waiver of sovereign immunity under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702
  because Plaintiffs cannot show
that Alta’s snowboard prohibition constitutes
state action. ECF  No. 21 at 6-9. Specifically, under section 702 of the APA, Plaintiffs must
show that Alta’s
no-snowboard policy was an act of a federal agency, officer, or employee taken in
“an official capacity” or 
 under
“color of legal authority,” 5 U.S.C. § 702.
ECF No. 21 at 6-7
. Alta’s
no-snowboard policy, however, is not state action because there is neither a symbiotic relationship between, nor joint action by Alta and the Federal Defendants. ECF No. 21 at 8-13. Therefore, absent state action, there is no waiver of sovereign immunity under the APA and, consequently, no subject matter jurisdiction, which requires dismissal of this action.
Plaintiffs’ response contends that
this Court has subject matter jurisdiction over this action. First, Plaintiffs contend that 28 U.S.C. § 1331 provides this Court with jurisdiction. Second, they claim a waiver of sovereign immunity under section 702 of the APA based upon their allegations that the Forest Service
and its supervisor “either acted or failed to act, in an
official capacity, to the detrim
ent of Plaintiffs in violation of Equal Protection.” ECF No. 29 at
25. Therefore, Plaintiffs argue, they have established a waiver of sovereign immunity. As set forth below,
Plaintiffs’ arguments miss the mark. First, 28 U.S.C. § 1331 does
not waive the
United States’ sovereign immunity. Second, Plaintiffs have failed to establish
Case 2:14-cv-00026-DB Document 38 Filed 06/27/14 Page 3 of 27

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->