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Jonathan 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

WASATCH EQUALITY, a Utah Nonprofit Corporation; RICK ALDEN, and individual; DREW HICKEN, an individual; BJORN 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.

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

DEMAND FOR JURY TRIAL Case No. _________________ Judge ____________________

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Plaintiffs, Wasatch Equality, Rick Alden, Drew Hicken, Bjorn Leines, and Richard Varga (“Plaintiffs”), hereby complain against Defendants, Alta Ski Lifts Company doing business as Alta Ski Area (“Alta”), the United States Forest Service (“USFS”), and David Whittekiend in his official capacity as Forest Service Supervisor for the USFS in the Wasatch-Cache National Forest (collectively “Defendants”), and allege as follows: INTRODUCTION 1. equally. 2. Only three ski resorts in North America prohibit snowboarding, Alta (Utah), Deer At nearly every ski resort in the world, skiers and snowboarders are treated

Valley (Utah), and Mad River Glen (Vermont), and Alta is the only one of these resorts that operates on public land controlled by the USFS. 3. On information and belief, Alta’s snowboarding prohibition was initiated a result

of animus held by Alta’s ownership, management, and customers towards the type of people they believed to be “snowboarders,”1 and Alta continues to enforce its anti-snowboarder policy and snowboarding ban as a consequence of this animus towards snowboarders. 4. Alta’s anti-snowboarder policy and snowboarding ban—and its approval and

enforcement by the USFS—excludes snowboarders from use and enjoyment of the public land on which Alta operates, unlawfully discriminates against snowboarders, and denies snowboarders equal protection under the law as guaranteed by the Fourteenth Amendment to the U.S. Constitution, as applied to the federal government through the Due Process Clause in the

To conserve space and avoid belaboring the point, “snowboarders,” as used hereinafter, refers both to people who snowboard and the type of people that Alta’s ownership, management, and customers believe to participate in snowboarding. 2

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Fifth Amendment to the U.S. Constitution. 5. The effect of Alta’s anti-snowboarder policy and snowboarding ban identifies a

group of people (those who stand sideways on a single “snowboard” rather than standing forward on one or two “skis,” regardless of length, width, type of binding, or otherwise) 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. 6. Discrimination without any rational basis perpetuates inequality by creating,

fostering, and encouraging skier-versus-snowboarder attitudes that are hostile and divisive in a world where skiers and snowboarders, as a general matter, share the mountains, including those on all other public land, in harmony and without issue. 7. Perceptions and attitudes have changed concerning the sport of snowboarding,

and the vast majority of the winter-sports community does not question that skiers and snowboarders can coexist and thrive together. For example, the cover of the November 2013 Freeskier Magazine featured a photograph of three professional athletes, two skiers and a snowboarder, who had the following to say in the corresponding article: • Jossi Wells, professional skier: “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.” Johnnie Paxson, professional snowboarder: “I’ve never had a problem with skiers, it makes no difference to me what’s on your feet. What matters is what kind of person you are. . . . We all share a similar passion, why not do it in peace.” Gus Kenworthy, professional skier: “Ski/snowboard beef is so 2000.”

Freeskier Magazine (Nov. 2013). 3

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8.

Unfortunately, not everyone at Alta views skiers and snowboarders as equals, and

their long-rooted dislike of “snowboarders,” as a group of people, continues to perpetuate their discriminatory policy. 9. Defendants should not be permitted to discriminate against snowboarders and

snowboarding due to historical (and current) prejudices against the type of people they perceive to constitute that class. 10. Accordingly, Plaintiffs seek a declaration from this Court that Alta’s anti-

snowboarder policy and snowboarding ban violate the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution and is therefore unlawful. Plaintiffs also request that Alta be permanently enjoined from implementing or enforcing such unlawful policies going forward. JURISDICTION AND VENUE 11. As this action arises under the Equal Protection Clause in the Fourteenth

Amendment to the U.S. Constitution, this Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. 12. §§ 701-706. 13. Alta is subject to personal jurisdiction in this District because it has transacted This Court also has jurisdiction under the Administrative Procedure Act, 5 U.S.C.

business, contracted to supply goods or services, caused injury within the State of Utah, and has otherwise purposely availed itself of the privileges and benefits of the laws of the State of Utah, pursuant to Utah Code Ann. § 78B-3-205 (2013). 14. This Court’s exercise of personal jurisdiction over Alta and the USFS is

consistent with the Constitutions of the State of Utah and the United States.

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15.

Venue is proper in this District pursuant to 28 U.S.C. § 1391 because the

Defendants reside in this District and the State of Utah, because the public land at issue is situated within this District, and because a substantial part of the events giving rise to the claims occurred in this District. NATURE OF THE CASE 16. This is a civil action arising under 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 to the U.S. Constitution, for declaratory judgment and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202. 17. Plaintiffs seek a declaration that Alta’s anti-snowboarder policy and

snowboarding ban, as adopted, approved, and enforced by Alta and the USFS, violate the Equal Protection Clause in the Fourteenth Amendment of the U.S. Constitution. 18. Plaintiffs also seek injunctive relief preventing Alta and the USFS from

enforcing Alta’s anti-snowboarder policy and snowboarding ban on public land. 19. Plaintiffs bring this action on behalf of all snowboarders who are currently

prohibited by Alta and the USFS from using the public land on which Alta operates and on behalf of all skiers who wish to ski with family and friends who snowboard. 20. Plaintiffs also seek to recover their attorneys’ fees, costs, and expenses incurred

in this action, as well as any other relief the Court deems just and proper. PARTIES 21. Plaintiff Wasatch Equality is a Utah Nonprofit Corporation, formed for the

purpose of, among other things, promoting equality and harmony among skiers and

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snowboarders, as well as promoting equal access and fair use of public lands by the public, regardless of whether snowboarding or skiing. Wasatch Equality’s members, including its officers and directors, have been denied access to snowboard at Alta because of Alta’s antisnowboarder policy and snowboarding ban. 22. Plaintiff Rick Alden is an individual residing in Summit County, Utah, who has

been denied access to snowboard at Alta. Mr. Alden has been snowboarding since 1985. Mr. Alden has snowboarded at ski resorts throughout the United States, but has not been able to snowboard at Alta, notwithstanding his desire to do so. 23. Plaintiff Drew Hicken is an individual residing in Salt Lake County, Utah, who

has been denied access to snowboard at Alta. Mr. Hicken has been snowboarding since 1981. Mr. Hicken and his family regularly snowboard at Snowbird, a resort adjacent to Alta in Little Cottonwood Canyon, but cannot snowboard at Alta as a result of Alta’s anti-snowboarder policy and snowboarding ban. 24. Plaintiff Bjorn Leines is an individual residing Salt Lake County, Utah, who has

been denied access to snowboard at Alta. Mr. Leines is a professional snowboarder. Mr. Leines’ family resides in the town of Alta, Utah, and his parents ski at Alta. Unfortunately, Mr. Leines cannot snowboard at Alta with his family as a result of Alta’s anti-snowboarder policy and snowboarding ban. 25. Plaintiff Richard Varga is an individual residing in Salt Lake County, Utah, who

has been denied access to snowboard at Alta. Mr. Varga has been snowboarding since 1981. Mr. Varga and his family regularly snowboard at Snowbird, but cannot snowboard at Alta as a result of Alta’s anti-snowboarder policy and snowboarding ban.

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26.

Defendant Alta is a Utah Corporation with its principal place of business in Salt

Lake County, Utah. 27. Defendant USFS is an agency within the U.S. Department of Agriculture

responsible for the management of the National Forest System, including the public land and resources in the Wasatch-Cache National Forest on which Alta operates. 28. Defendant David Whittekiend is the Forest Service Supervisor of the Wasatch-

Cache National Forest and is sued in his official capacity. In this official capacity, Mr. Whittekiend reviews and approves Alta’s operating plan annually, thereby approving, endorsing, and authorizing the enforcement of Alta’s anti-snowboarder policy and snowboarding ban. FACTUAL BACKGROUND AND GENERAL ALLEGATIONS A. A Brief History of Snowboarding 29. Inspired by skiing, skateboarding, and surfing, snowboarding involves descending

a snow-covered slope while standing sideways on a board attached to a rider’s feet. 30. The precise origins of snowboarding are debatable, as people have been standing

sideways on various devices to descend snow-covered slopes as early as the 1920s (and likely earlier), but modern snowboarding began in the 1970s when numerous companies began manufacturing snowboards for public sale and use. 31. By the 1980s, snowboarding had gained popularity, and ski resorts were faced

with a growing number of customers who wanted to snowboard. Still unfamiliar with the sport, resorts were initially hesitant to embrace snowboarding. Only seven percent of the ski resorts in the United States allowed snowboarding in the 1980s, and some required snowboarders to undergo a “skills assessment” prior to being allowed on a chairlift.

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32.

These divisions at many resorts continued throughout the 1980s and 1990s,

facilitating and provoking animosity and hostility between skiers and snowboarders. Snowboarders were stereotyped—perhaps rightfully so—as members of the younger generation, similar to surfers, skateboarders, and others considered part of various countercultures. Snowboarding therefore inspired its own movement and counterculture within the world of skiing. Viewing themselves as more sophisticated and affluent, many skiers bristled at this snowboarding counterculture, which typically brought with it a particular style of dress (baggy clothing), dialogue (words borrowed from surfing like “gnarly” or “radical”), and devices (moving, untraditionally, sideways on the snow). 33. Some in the skiing community went further than merely stereotyping

snowboarders as “younger” by marketing, often for their own purposes, the entire group of people as immature, inexperienced, and reckless. Some skiers disliked snowboarders and opposed their “infiltration” into the ski resorts and ski culture. As a result, snowboards were banned from many ski resorts. 34. Believing the equipment and skills of snowboarders had improved, insurance

companies began insuring resorts for snowboarders as well as skiers. More regularly interacting with snowboarders, skiers became comfortable with snowboarding, ski schools began offering snowboard instruction, and snowboarding was accepted as part of the winter-sports community. Skiers and snowboarders shared the terrain at many resorts, demonstrating that they could coexist, and most resorts soon acknowledged that there was no legitimate reason to prohibit snowboarding.

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35.

Notwithstanding these advances, outdated or outright discriminatory perceptions

and attitudes continued among some skiers, which infected or was exploited by some resorts that wanted to prevent snowboarders and their “counterculture” from having a presence on their mountain. 36. In 1986, three resorts in Utah openly permitted snowboarders on their chairlifts

(Beaver Mountain, Brighton, and Park West, which is now the Canyons), and in the years following, all other Utah ski resorts did the same, with the exception of today’s two hold-out resorts, Deer Valley and Alta. 37. By 1990, most major ski areas allowed snowboarding and welcomed

snowboarders. Throughout the 1990s, snowboarding became one of the fastest-growing winter sports, increasing in popularity among all demographics regardless of age, sex, or ability. 38. In 1993, Utah amended its Inherent Risk of Skiing Act so that snowboarding was

fully encompassed by the following definitions: “Skier” means any person present in a ski area for the purpose of engaging in the sport of skiing, nordic, freestyle, or other types of ski jumping, using skis, sled, tube, snowboard, or any other device. “Ski area” means any area designated by a ski area operator to be used for skiing, nordic, freestyle, or other type of ski jumping, and snowboarding. Utah Code Ann. § 78B-4-402. 39. 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. 40. In 1998, snowboarding became an official Olympic event, and snowboarders from

around the world competed in the halfpipe and giant slalom events at the Nagano Olympic 9

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Games. In the Salt Lake Olympic Games in 2002, snowboarding was one of the most popular events, so tickets were exceptionally difficult to purchase. In these 2002 Games, members of the U.S. Snowboarding Team swept the gold, silver, and bronze medals in the men’s halfpipe event and won the gold medal in the women’s halfpipe. Now an all-American sport, snowboarding had become mainstream. 41. According to SnowSports Industries America, which tracks winter-sports

statistics, there were approximately 7.4 million snowboarders and 11.3 million skiers in the United States during the 2012-13 season. In other words, snowboarders comprised approximately forty percent of the total ski and snowboard population in the United States last year. 42. Today, every resort in North America has embraced snowboarders and

snowboarding with the exception of the three remaining holdout resorts: Deer Valley, Mad River Glen, and Alta. B. The Uniqueness of Alta’s Public Land 43. public land. 44. The public land on which Alta operates is uniquely nestled at the top of Little Alta consists of 2,130 acres. Of which, 1,802.7 acres (85%) are located on USFS

Cottonwood Canyon just outside of Salt Lake City, Utah. At elevations between 8,530 and 10,550 feet, the north-facing slopes of Alta’s mountains typically receive more snow than any other Utah resort. 45. Alta averages 560 inches annually of Utah’s “greatest snow on earth,” and some

of the best terrain in the entire region is located within Alta’s boundaries.

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46.

Alta’s snow and terrain therefore make it unlike any other resort. Indeed, even

Alta’s 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.” Linda Hamilton, Secret Ingredient, Storm Patterns Make Alta Special, Deseret News, Jan. 19, 1989, available at http://www.deseretnews.com/article/31347/SECRET-INGREDIENT-STORMPATTERNS-MAKE-ALTA-SPECIAL.html?pg=all (last visited Jan. 15, 2014). C. Alta’s Permit and Relationship with the USFS 47. Alta operates under a U.S. Forest Service Ski Area Term Special Use Permit

(“Permit”), which authorizes Alta to operate a resort on public land subject to the provisions of the Permit. 48. Pursuant to the annual Permit, the USFS must also approve Alta's Winter Site

Operation Plan (“Plan”) setting forth Alta’s operations and management plan for each year. 49. David Whittekiend, in his official capacity as the Forest Service Supervisor of the

Wasatch-Cache National Forest, reviews and approves Alta’s Plan annually. 50. The Permit and annual approval of the Plan constitute final agency action by the

USFS and Mr. Whittekiend under 5 U.S.C. § 704. No administrative remedy is available to Plaintiffs in connection with the USFS’s grant of the Permit and annual approval of the Plan. 51. Alta’s Plan 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

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causes undue damages to the quality of the snow, or is not consistent with the business management decisions.” 52. Ostensibly under this provision, Alta enforces its anti-snowboarder policy and

snowboarding ban. By approving Alta’s Plan, the USFS has allowed Alta to ban snowboarders from using public land. 53. However, Alta’s Permit specifically provides that “the lands and waters covered

by this permit shall remain open to the public for all lawful purposes.” 54. The Permit’s inclusive language is therefore at odds with Alta’s exclusionary anti-

snowboarder policy and snowboarding ban, as formalized in the Plan. 55. Both under the Permit and as owner and leaseholder of the land on which Alta

operates, the USFS exercises substantial control over Alta’s use of public land. For instance, the USFS approves nearly every action taken by Alta on USFS land, including but not limited to signage, ski routes, avalanche control, and general safety. The USFS 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. 56. In addition to exercising substantial control over Alta’s use of federal land, the

USFS receives a fee based on a percentage of revenue from lift-ticket sales and ski-school operations. For example, according to the USFS, Alta paid $473,792 to the USFS in 2009, $449,005 in 2010, $471,449 in 2011, and $304,396 in 2012. 57. Thus, the USFS has entered into a “joint enterprise” and a “symbiotic

relationship” with Alta in its ski-resort business.

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58.

Alta’s anti-snowboarder policy and snowboarding ban is therefore enforced on

federally-owned land, operates to exclude a particular class of individuals from use and enjoyment of this public land, and is reviewed and endorsed annually by the USFS in approving Alta’s Permit and/or Plan as well as under the terms of its contract with Alta. 59. Numerous other resorts operate on federal land under similar permits, including

other resorts in Utah, such as Snowbird and Brighton. All of these resorts allow snowboarders. D. Alta’s Anti-Snowboarder Policy and Snowboarding Ban 60. Alta’s anti-snowboarder policy and snowboarding ban unlawfully discriminates

against snowboarders by denying them the same access freely granted skiers to the public land on which Alta operates. 61. However, Alta has not always prohibited snowboarding. In the early 1980s, Alta

allowed snowboarders to ride its chairlifts. In fact, Plaintiffs Hicken and Varga were among some of Utah’s first snowboarders to snowboard at Alta. By the mid-1980s, Alta summarily decided it would no longer allow snowboarders to access its terrain or ride its chairlifts and instituted its anti-snowboarder policy and snowboarding ban. 62. Today, Alta still does not welcome snowboarders. Alta refuses to let

snowboarders on its chairlifts and prohibits snowboarders from using its terrain. 63. Alta’s website has stated that “Alta is a skier’s mountain—snowboarding is not

allowed. The Alta Skiing Emphasis: By limiting the number of skiers in the area and by not allowing snowboarding, Alta strongly upholds a commitment to your skiing experience.” Available at http://www.alta.com/pages/pressroom_kits.php (follow “Skiing Emphasis” hyperlink under the “2011-2012 Season” heading) (last visited January 15, 2014).

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64.

Alta’s trail map prominently states adjacent to the Alta and USFS logos that “Alta

is a skiers’ mountain, Snowboarding is not allowed.” 65. Signs in Alta’s ticket windows prominently declare in large, bold letters: “NO

SNOWBOARDS.” 66. Alta and Snowbird share a common boundary, and customers can purchase an

Alta/Snowbird combined-resort pass giving skiers access to both resorts while still prohibiting snowboarders at Alta. Indeed, snowboarders are barred from accessing Alta terrain via Snowbird, even though skiers are routinely granted similar access. On occasion, Alta has even requested that Snowbird not allow snowboarders on chairlifts that would even facilitate access to Alta. 67. Alta’s anti-snowboarder policy and snowboarding ban is based on antiquated

stigmas and stereotypes that snowboarders are immature, inexperienced, reckless, disrespectful, and/or “out of control,” among other things discussed herein. 68. Alta’s anti-snowboarder policy and snowboarding ban hurts Utah tourism and, by

excluding mixed-skier/snowboarder families, flies in the face of Utah’s family values. 69. For instance, Plaintiff Leines’ parents reside in the town of Alta, Utah. Mr.

Leines’ children have skied at Alta with their grandparents, but Mr. Lienes has not been able to snowboard with his family at Alta due to Alta’s anti-snowboarder policy and snowboarding ban. 70. Further, Alta’s anti-snowboarder policy and snowboarding ban, as well as Alta’s

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 Alta’s terrain. All of this is to say that Alta’s anti-snowboarder policy

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and snowboarding ban is based on, creates, facilitates, endorses, and promotes animus towards snowboarders. 71. Consequently, 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. E. Alta’s Justifications as Pretext for Animus 72. On information and belief, Alta’s anti-snowboarder policy and snowboarding ban

was instituted because Alta’s ownership, management, and customers did not like snowboarders nor the snowboarding culture, and Alta’s 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. 73. Gus Gilman, Director of Alta Ski Patrol, stated:

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 Burton’s 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 couldn’t keep them out of the closed areas and they were constantly . . . because the boards were suitable for . . . weren’t really suitable for hard snow, and so Chic [Morton, Alta’s General Manager,] got mad one day and said, “That’s 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. There’s not a blind spot that people talk about, and there’s not the . . . you know there’s 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 don’t know that there’s no snow boarders and then about half way through the day they realize, man there’s no snow boarders here, and it’s a great deal for them and now we sort of have a customer base of people who prefer to ski where there’s no snowboarding.”

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The Alta Experience, Interview with Gus Gilman by KUED (2008), available at http://www.docstoc.com/docs/156908596/The-Alta-Experience-Transcript-Gus-GilmanInterview-Joey----KUED-7 (last visited Jan. 15, 2014) (hereinafter “The Alta Experience”). 74. Alta 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. 75. However, on information and belief, Alta’s ownership and management

implemented and maintained the anti-snowboarder policy and snowboarding ban as a result of underlying stereotypes, prejudices, animus, and irrational fears held by Alta’s ownership, management, and customers towards snowboarders and snowboarding culture. 76. On information and belief, when efforts were being made to grant snowboarders

access to ski resorts in the late 1980s, various individuals contacted the General Manager of Alta at the time, Chic Morton, to discuss the possibility of opening Alta for snowboarding. Mr. Morton responded to these requests by declaring that “anyone who uses the words rip, tear, or shred will never be welcome at Alta” (a reference to the vocabulary used by snowboarders at the time). On another occasion, Mr. Morton stated that “as long as [he was] alive snowboarders will never be allowed at Alta.” F. Alta as a Conduit for Customer Animus 77. According to a survey conducted in 2006, nearly forty percent of skiers who

indicated that Alta was their favorite resort did so because Alta excludes snowboarders. Mike Gorrell, Snowbird, Alta Charm the masses in Tribune ski poll, The Salt Lake Tribune, Nov. 14,
2

To the extent Alta claims snowboarders are not capable of accessing some of Alta’s 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. 16

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2006, available at http://www.sltrib.com/news/ci_4656897 (last visited Jan. 15, 2014) (1,107 total participants; 294 skiers preferred Alta; 114 of those preferring Alta referenced the snowboarder ban). 78. 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? They’re just being really stubborn about it. And— and I applaud them for doing that. But it—it 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 don’t have snowboarders. The Alta Experience, Interview with David Quinney by KUED (2008). 79. Bill Leavitt, former Alta Town Mayor and owner of the Alta Lodge, stated:

Why doesn’t Alta allow snowboarding? Everybody else is. Think of the economics involved here. How much money they could make because it’s 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 don’t,” and so we had a big meeting and we were talking about it and somebody said, “If 94 percent of our loyal guests don’t want it, why are we wasting time talking about it” and the lift company said, “well, we’ll lose money, the lodges will, the restaurants will lose money, everybody if we do this so I want to make sure that I’m 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 don’t want it, we don’t do it.” The Alta Experience, Interview with Bill Leavitt by KUED (2008). 80. On information and belief, many of the customers at Alta hold underlying

stereotypes, prejudices, animus, and irrational fears towards snowboarders and snowboarding. 81. examples: 82. On multiple occasions between 1994 and 2013, Plaintiffs Hicken and Varga were The animus of Alta’s customers is evident, as illustrated by the following

verbally assaulted and heckled by Alta skiers while descending Alta terrain.

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83. •

In a video filmed at Alta in 2013, Alta skiers made the following comments: “Snowboarders are assholes, teenage assholes, out of control; they can’t stop; they hit people, and then they don’t 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. That’s why I don’t ski anywhere else but here . . . I don’t ever want to see a snowboarder near me . . . Snowboarders are too young and stupid . . . I would hate it if there were snowboarders.” “They shouldn’t 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.”

Available at http://www.youtube.com/watch?v=YwWDMAEYe5c (last visited Jan. 15, 2014). 84. Further demonstrating the animus held by Alta skiers, the following are merely a

handful of examples of the type of comments made concerning snowboarding at Alta: • YouTube user named David Collis (Dec. 16, 2013): “Alta is for Skiers! Get use to it, I can’t 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!!!”

Available at http://videositeprofits.com/demo/video/YwWDMAEYe5c/Shit-ALTASkiers-Say-About-Snowboarding.html (last visited Jan. 15, 2014). • 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.”

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Available at http://unofficialnetworks.com/shit-alta-skiers-snowboarding-wow-guys-feel107837/ (last visited Jan. 15, 2014). • Yelp user named Lisa B. (Mar. 13, 2007): “Ah . . . the world without snowboarders.*aaahhhh* Seriously, it took me a whole day to realize what was going on here . . . why I was having so much fun and why it was so relaxed . . . then it dawned on me . . . no snowboarders really, really makes a difference. Sorry guys . . . no attitude, no jerks . . . it was a lot, a lot of fun . . . .” Yelp user named Gary W. (Apr. 12, 2012): “No snowboarders allowed . . . this may not be for some . . . but for us it is sensational! We strongly urge the powers that be to keep this restriction in place. It makes the entire experience that much more peaceful, safe, and enjoyable. Great combination of all types of terrain and quality levels. We will keep coming back . . . a true five star experience! Please continue your policy of a skier's only mountain. I wish more mountains were like you!” Yelp user Jeff W. (Mar. 15, 2007): “I could comment on the lack of those hellion snow boarders, but the mountain was big enough that crowds weren't an issue.”

Available at http://www.yelp.com/biz/alta-ski-resort-alta (last visited Jan. 15, 2014). • TripAdvisor user named Cthenn (Mar. 12, 2008): “Alta is awesome, not only for the snow, but for the ‘feel’ of it. Number one thing . . . NO SNOWBOARDERS!!! So nice not to have to hear the grinding sound of some snowplower shaving off all the nice new snow or raping the moguls with their boards, or flying recklessly down the hill verging on being out of control. I never felt more comfortable on a ski slope than I did here. And to not have to hear all the ‘duh huh huh’ laughing and vapid, 4-leterword [sic] babbling about whatever was a nice break from my usual experiences at ski resorts. Sorry, I know not all snowboarders are like that, and we skiers have our share of mogoloids. But I’m supposed to be reviewing Alta, right?”

Available at http://www.tripadvisor.com/ShowUserReviews-g30205-d263759r21833076-Alta_Ski_Resort-Alta_Utah.html (last visited Jan. 15, 2014).

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85.

Even if it were true that Alta’s ownership and management did not hold any

animas towards snowboarders, Alta impermissibly and knowingly serves as a conduit for the animus of its customers. G. No Rational Basis to Exclude Snowboarders 86. There are no legitimate reasons for prohibiting snowboarders at any resort that

already allows skiing. 87. 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 skier’s/snowboarder’s 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 person’s feet on the skis or board. 88. 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. 89. Allowing snowboarders at Alta would not interfere in any way with Defendants’

ability to provide skiers with a positive skiing experience—skiers would still enjoy the same snow on the same terrain. 90. Alta’s anti-snowboarder policy and snowboarding ban does nothing to advance

skiers’ access to or the benefit from Alta’s unique public land—it merely excludes snowboarders from enjoying the same access to and benefit from that federal land.

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91.

Tradition or not, animus is inherently irrational and is never a legitimate

government interest. H. Alta’s Denial of Access to Plaintiffs 92. On January 12, 2014, Plaintiffs Alden, Hicken, Varga, and other snowboarders

purchased Alta lift tickets at Alta’s ticket window. 93. Having each purchased an Alta lift ticket, Plaintiffs Alden, Hicken, Varga, and a

few other snowboarders attempted to load Alta’s Collins lift with one foot strapped into their snowboards, as is the customary practice at other ski resorts when loading a chairlift. Alta’s lift operators told Plaintiffs that snowboards were not allowed at Alta and that they therefore could not ride on the chairlift. Alta’s lift operators stopped the chairlift unnecessarily while Alta Ski Patrol escorted Plaintiffs from the lift line, denying Plaintiffs access to Alta’s chairlifts and terrain notwithstanding their valid lift tickets. 94. Shortly thereafter, Alta’s General Manager, Onno Wieringa, appeared on the

scene and told Plaintiffs that, among other things, Alta’s anti-snowboarder policy and snowboarding 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 Alta’s policies work for Alta because “we like it, our skiers like it, our owners like it, and the Forest Service says it’s OK.” 95. 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,

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and even a mono-ski. None of these individuals was denied access to Alta’s chairlifts while using such devices. 96. That same day, Plaintiff Alden also embarked on one of Alta’s chairlifts while

using a “split-board.”3 As he was riding the chairlift, a mid-mountain lift operator noticed that Mr. Alden was using a split-board. When Mr. Alden unloaded at the top of the chairlift, two Alta Ski Patrol personnel were waiting for him. The Ski Patrol told Mr. Alden that snowboarding was not allowed at Alta and that he would have to descend the mountain in ski mode. Given that split-boards are not designed to descend in ski mode, due to a free-pivot toe binding, Mr. Alden expressed his concern about the safety of doing so and told them that he did not understand why there was a problem given that he had rode the chairlift with skis. The Alta Ski Patrol told him that it did not matter if his board separated into skis, it was a “snowboard” and violated Alta’s policy. Notwithstanding this conversation, Alta’s Ski Patrol then told Mr. Alden that he could descend with his split-board in snowboard mode once but would be prohibited from using his split-board again on Alta’s chairlifts in the future. Mr. Alden then descended without incident. 97. Plaintiffs Alden, Hicken, and Varga then departed having been denied the

opportunity to use their purchased lift tickets at Alta because they were “snowboarders.” 98. If Alta’s anti-snowboarder policy and snowboarding ban were abolished,

Plaintiffs would snowboard at Alta.

A “split-board” is similar to a snowboard in shape and size but can be separated (or “split”) into two separate boards akin to a pair of skis. The user’s feet face sideways while the split-board is functioning as a snowboard, whereas the user’s feet face forward when it is functioning as skis. 22

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FIRST CAUSE OF ACTION (Violation of the Equal Protection Clause) 99. herein. 100. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Plaintiffs reallege and incorporate Paragraphs 1-98 as though fully set forth

Constitution provides that “[n]o state shall . . . deny any person within its jurisdiction the equal protection of the laws.” This guarantee of equality under law implements the constitutional ideal that all persons similarly situated should be treated alike. 101. The Equal Protection Clause is applicable to the federal government through the

Due Process Clause in the Fifth Amendment to the U.S. Constitution. 102. Alta, the USFS, and Mr. Whittekiend are state actors because Alta operates on

federal land pursuant to its Permit and Plan approved annually by the USFS and Mr. Whittekiend in his official capacity as Forest Service Supervisor in the Wasatch-Cache National Forest, so their actions are subject to review under the Equal Protection Clause. 103. Skiing and snowboarding are similar sports. Both require the same conditions

(snow and slope) and involve the use of the same facilities (chairlifts and ski resorts). In the vast majority of cases, both groups participate in their chosen activity at the same location, using the same facilities, and nearly every resort in the world routinely serves patrons from both groups. 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 Alta’s anti-snowboarder policy and snowboarding ban. 104. 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 23

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exclude from accessing, using, and enjoying public land, while granting access to all other similar groups (skiers), Alta (and by extension the federal government) discriminates against the similarly situated snowboarders. 105. Alta’s anti-snowboarder policy and snowboarding ban lacks any rational basis to

a legitimate government interest. 106. There is no rational relationship between, on the one hand, Alta’s anti-

snowboarder policy and snowboarding ban and, on the other hand, any possible interest claimed by Alta or the USFS to support the policy and ban. There is no rational link between prohibiting snowboarding and Alta’s stated goal of providing a quality ski experience for its customers. 107. Instead, on information and belief, the disparate treatment of snowboarders is

based on past and present stereotypes, prejudices, animus, and irrational fears held by Alta’s ownership, management, and customers. Such interests are never legitimate. 108. Any suggestion that Alta’s customers would refuse to recreate in proximity to

snowboarders (or simply dislike doing so) is based upon vague undifferentiated concerns, as demonstrated by the fact that both groups routinely participate side-by-side and peacefully coexist at the vast majority of resorts in the world. 109. Any assertion that Alta’s anti-snowboarder policy and snowboarding ban was a

business decision is mere pretext, as the real purpose and motivation behind the policy’s creation was to disadvantage snowboarders based on privately held beliefs unsupported by any legitimate basis. On information and belief, these same beliefs exist today among Alta’s ownership, management, and customers, which form the actual basis for Alta’s continued enforcement of its anti-snowboarder policy and snowboarding ban.

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110.

Similarly, the government has no legitimate interest in denying a group of

individuals from using public lands based on the animus held by Alta’s ownership, management, or customers towards snowboarders. 111. Alta and the USFS know or should know that excluding snowboarders does not

genuinely contribute to the purposes of promoting safety or quality snow conditions. 112. Accordingly, both on its face and as applied to Plaintiffs, Alta’s anti-snowboarder

policy and snowboarding ban are unconstitutional and in violation of the Equal Protection Clause. REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief against Defendants: 1. For a declaratory judgment pursuant to 28 U.S.C. § 2201, declaring that Alta’s

anti-snowboarder policy and snowboarding ban violate the Equal Protection Clause in the Fourteenth Amendment of the U.S. Constitution, as applied to the federal government through the Due Process Clause in the Fifth Amendment to the U.S. Constitution. 2. For a permanent injunction pursuant to 28 U.S.C. § 2202, enjoining the

enforcement of Alta’s anti-snowboarder policy and snowboarding ban, requiring Alta and the USFS to provide snowboarders the same rights, privileges, and access given to skiers at Alta. 3. For a judgment awarding Plaintiffs their costs of suit, including reasonable

attorneys’ fees, under applicable statutes, rules, and common law. 4. For such other and further relief as the Court may deem appropriate.

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JURY DEMAND In accordance with Rule 38 of the Federal Rules of Civil Procedure, Plaintiffs respectfully demand a jury trial on all issues so triable. DATED this 15th day of January 2014. PARR BROWN GEE & LOVELESS

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

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