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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; 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.

MOTION TO DISMISS

Case No. 2:14-cv-00026 PMW Judge Paul M. Warner

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RELIEF SOUGHT AND GROUNDS FOR MOTION Defendant Alta Ski Lifts Company, d/b/a Alta Ski Area (“Alta”), seeks dismissal of Plaintiffs’ Complaint under Federal Rules of Civil Procedure 8 and 12(b)(6). Plaintiffs assert that Alta’s equipment requirement precluding individuals from using various kinds of equipment, including snowboards, at its resort constitutes a violation of the Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution. This claim is insufficient as a matter of law, and must be dismissed for at least the following reasons. First, Plaintiffs, who characterize themselves as a class “of people . . . who stand sideways on a single snowboard,” lack standing to assert a claim under the Fourteenth Amendment. To meet their burden of establishing standing, Plaintiffs must show that their complaint falls within the “zone of interest” emanating from the Fourteenth Amendment. It demeans the Constitution itself to suggest that the Fourteenth Amendment, ratified in the aftermath of the Civil War, includes in its zone of protection those who engage in a particularized winter sport. Because Plaintiffs cannot show standing, the Court should grant Alta’s motion. Nor is there any Forest Service final agency action on Alta’s business decision regarding the use of snowboards. That decision was made by Alta, and not by the Forest Service. In the absence of final agency action, the Court should not review Plaintiffs’ claim against the Forest Service under the Administrative Procedure Act (“APA”). The Court should also dismiss Plaintiffs’ claim because they cannot show the necessary “state action” required to establish a violation of the Fourteenth Amendment. Alta is a private company that makes many decisions about the manner in which it runs its business, one of which happens to be the equipment requirement Plaintiffs challenge. The allegations regarding the Forest Service’s relationship with Alta do not satisfy any of the four tests for establishing state action. Hence, Plaintiffs have failed to meet their burden to show state action. Under such

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circumstances, this Court need not analyze the underlying constitutional claims further and thus, should grant Alta’s motion. Finally, the Court should grant Alta’s motion because Plaintiffs cannot overcome the presumption that Alta’s equipment requirement is presumed valid under the controlling “rational basis” test. In fact, the rational basis for Defendants’ conduct is supplied by Plaintiffs’ themselves in their complaint, in which they allege that the equipment requirement is driven by business, safety, customer demographic and terrain concerns. Each of these interests supplies a rational basis that Plaintiffs cannot overcome. For all of these reasons, the Court should grant Alta’s motion and dismiss with prejudice all of Plaintiffs’ claims. STATEMENT OF FACTS 1 1. Plaintiffs are a “group of people . . . who stand sideways on a single

‘snowboard.’” (Compl. ¶ 5.) 2. The Forest Service is an agency of the federal government. David Whittekiend is

a Forest Service supervisor. (Id. ¶¶ 27-28.) 3. Alta is a privately owned and operated Utah corporation that operates an all

season resort partially on Forest Service land near Salt Lake City, Utah. (Id. ¶¶ 26, 43, 47.) 4. Alta operates its resort under a Forest Service Ski Area Term Special Use Permit

(“Permit”) that the Forest Service issued on October 25, 2002. (Compl. ¶ 47; see also Permit, attached as Exhibit A.) 2 5. Alta’s Winter Site Operation Plan (“Plan”) states that “[t]o promote safety of

employees and persons on the mountain and to avoid interference with operations, uphill and

1

The following facts are those as alleged by Plaintiffs in their Complaint filed in this action. Alta sets forth these allegations only for the purposes of this Motion.

2

In a Rule 12(b)(6) motion to dismiss, “‘the district court may consider documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity.’” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).

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downhill travel must be accepted and approved by Alta Ski Area.” (Compl. ¶ 51; Alta Ski Area Winter Site Operation Plan 2013/2014 (“Plan”), § VIII(B), attached as Exhibit B.) 6. The Plan further states that Alta “reserves the right to exclude any type of skiing

device that they deem creates an unnecessary risk to other skiers and/or the user of the device, or any device they deem causes undue damage to the quality of the snow, or is not consistent with their business management decisions.” (Plan, § VIII(D)(4).) 7. The Plan further states that Alta may restrict “[s]ledding, tubing or snowshoeing

in unauthorized areas,” “[u]nauthorized 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).) 8. Alta allows various types of skis to be used at Alta, but does not permit the use of

snowboards. (Compl. ¶¶ 88, 103.) 9. The Forest Service has not required that Alta prohibit the use of snowboards, nor

has it encouraged the prohibition against the use of snowboards. (See, id. ¶¶ 51-52.) In fact, “[t]o promote safety of employees and persons on the mountain,” the Forest Service allows Alta to regulate uphill and downhill travel. (Plan, § VIII(B).) 10. Plaintiffs do not allege that they have been denied access to Alta when adhering to

Alta’s rules, including its equipment requirements. (See generally Compl.) 11. Numerous other, all-season resorts operate on federal land under similar permits,

including other resorts in Utah, such as Snowbird, Brighton, and Solitude. These resorts have made the business decision to allow snowboarding. (Id. ¶ 59.) 12. There are differences between snowboarding and skiing. The main difference is

“the orientation of a person’s feet.” (Id. ¶ 87.) Specifically, one “stands sideways on a single snowboard,” as opposed to facing directly downhill on skis. (Id. ¶ 5.) 13. Skiers do not have a blind spot because they face downhill, unlike snowboarders,

who have a sideways stance. (Id. 73.)

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14.

Additionally, according to Plaintiffs, snowboarders are often “members of the

younger generation” and have their own “snowboarding counterculture” distinct from skiing. (Id. ¶¶ 32-33.) 15. Plaintiffs also plead that some skiers report that they prefer not to ski at resorts

that allow snowboarding. (Id. ¶¶ 77-85.) 16. Alta’s business model markets itself specifically to skiing. Plaintiffs plead that

Alta’s website states, “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.” (Id. ¶ 63.) 17. According to a 2006 survey, nearly 40 percent of skiers who indicated that Alta

was their favorite resort did so because snowboarding is not permitted at Alta. (Id. ¶ 77.) 18. Another informal survey found that 94 percent of Alta’s customers prefer to ski at

a resort that caters to a skier-only market, prompting Alta-area businesspeople to agree that snowboarding should not be permitted at Alta. (Id. ¶ 79.) 19. Alta customers like skiing at Alta because, without snowboarding, “[t]here’s not a

blind spot that people talk about,” they find the experience more “peaceful, safe and enjoyable” and the mountain is less crowded. (Id. ¶ 73, 84.) 20. Plaintiffs also allege in their Complaint that Alta’s requirement as to the use of

snowboards was instituted for at least the following reasons: a. Alta’s customer base prefers to ski where there’s no snowboarding and its “business model caters to a skier-only market.” (Id. ¶¶ 73-74.) Alta prefers to “maintain a ‘skiing culture.’” (Id.) Alta’s “terrain is not conducive to snowboards.” (Id. ¶ 74.) Alta’s equipment requirements aid in maintaining “the quality of the snow.” (Id. ¶ 51.)

b. c. d.

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21.

Plaintiffs now sue, alleging under the Administrative Procedures Act (“APA”) a

single cause of action that Alta’s equipment requirement violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. (Id. ¶¶ 99-112.) STANDARD OF REVIEW This Court must under Federal Rule of Civil Procedure 12(b)(6) dismiss the Plaintiffs’ Equal Protection claim if it finds that Plaintiffs’ allegations in support of this claim lack “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This requirement is rooted in Federal Rule of Civil Procedure 8(a)(2), which states that a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” This rule requires more than mere “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. Such claims “fail[] to state a claim upon which relief can be granted” and should therefore be dismissed. Fed. R. Civ. P. 12(b)(6). ARGUMENT I. PLAINTIFFS LACK PRUDENTIAL STANDING TO ASSERT A VIOLATION OF THE UNITED STATES CONSTITUTION. A. Generally.

The Court should dismiss Plaintiffs’ Complaint because they have not met, and cannot meet, their burden of establishing the required elements of standing. “Plaintiffs carry the burden of establishing the elements of standing.” Mount Evans Co. v. Madigan, 14 F.3d 1444, 1450 (10th Cir. 1994) (finding that plaintiff suing Forest Service lacked standing) (citations omitted). Determining whether Plaintiffs have met their burden is a two-part inquiry about whether Plaintiffs can show (1) constitutional standing, and (2) prudential standing. See id. (“[T]he term ‘standing’ subsumes a blend of constitutional requirements and prudential considerations.”).

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Prudential standing applies in a suit for judicial review of agency action under the APA, and in an action against a non-federal entity alleging a Constitutional violation.3 Here, Plaintiffs cannot carry their burden of showing prudential standing to invoke this Court’s jurisdiction for their claim against either Alta or the Forest Service. 4 To meet the prudential requirements of standing, the “plaintiff’s complaint must fall within the zone of interest to be protected or regulated by the statute or constitutional guarantee in question.” Id. at 1451 (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982)); see also Utah Shared Access Alliance v. Carpenter, 348 F. Supp. 2d 1265, 1269 (D. Utah 2004) aff'd, 463 F.3d 1125 (10th Cir. 2006) (affirming dismissal of Administrative Procedures Act (“APA”) claim for lack of prudential standing). The only law Plaintiffs attempt to vindicate in their Complaint is the United States Constitution. 5 Specifically, Plaintiffs’ sole claim is that they were denied an alleged right under the Equal Protection Clause of the Fourteenth Amendment to snowboard at Alta. Thus, to meet their burden to show standing Plaintiffs must establish that the claimed right to wear a snowboard at Alta is in the “zone of interest” protected by the Fourteenth Amendment to the United States Constitution. See Mount Evans, 14 F.3d at 1451.
3

E.g, Block v. Community Nutrition Inst., 467 U.S. 340, 345-48 (1984) (ruling that consumers did not have prudential standing to seek APA judicial review of federal agency decisions related to milk prices); Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 17-18 (2004) (parent did not have prudential standing under the First and Fourteenth Amendments to challenge state school district policy requiring teacher-led recitation of the Pledge of Allegiance).
4

To establish constitutional standing, a plaintiff must show that “(1) he or she has personally suffered an injury in fact; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, not merely speculative, that the injury will be redressed by a favorable decision.” Mount Evans, 14 F.3d at 1450. Plaintiffs cannot show an injury in fact, given their ability to snowboard on federal lands at every other permitted resort in the nation, including one, Snowbird, that they must pass by to get to Alta to then complain about the denial of a constitutional right to snowboard. However, Plaintiffs’ lack of standing is most obvious under the prudential aspect of the standing analysis.
5

Plaintiffs also cite the APA in their Complaint. However, assuming that the requisite standing and final agency action exists, the “APA provides no substantive requirements, but merely provides the framework for judicial review of agency action.” Utah Shared Access Alliance v. Wagner, 98 F. Supp. 2d 1323, 1333 (D. Utah 2000). Hence, the only legal questions before this Court are constitutional ones.

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B.

Snowboarding is Not Within the Zone of Interest Protected by the Fourteenth Amendment to the United States Constitution.

Identifying the zone of interest protected by the Fourteenth Amendment is neither difficult nor controversial. To begin, “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.” Loving v. Virginia, 388 U.S. 1, 10 (1967) (invalidating laws prohibiting interracial marriage). In enacting the Fourteenth Amendment, “[w]hatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color.” Shelley v. Kraemer, 334 U.S. 1, 23 (1948) (holding that courts could not enforce racial covenants on real estate). In its simplest terms, the Fourteenth Amendment declares “that the law in the States shall be the same for the black as for the white.” Brown v. Bd. of Ed., 347 U.S. 483, 492 (1954) (declaring laws that establish separate but equal schools for black and white students unconstitutional). Against this historical backdrop, Plaintiffs contend that this Court must stretch the Fourteenth Amendment to protect those who wear a snowboard. It demeans the Constitution to suggest that the amendment that protected the interests of former slaves during Reconstruction and James Meredith and the Little Rock Nine must be expanded to protect the interests of those who engage in a particularized winter sport. It bears repeating that Plaintiffs, who classify themselves as a class of people “who stand sideways on a single snowboard,” plead their claim solely as a constitutional one. There is no authority holding that the zone of interest created by the Fourteenth Amendment protects those who stand sideways on snowboards. 6 (Complaint, ¶ 5.)
6

To state the obvious, unlike race, which is an immutable characteristic that cannot be changed, Plaintiffs can change the equipment on their feet from a snowboard to skis in a minute or two.

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In fact, few if any cases pursue the novel constitutional theory Plaintiffs ask this Court to accept. One recent case, however, has at least considered the kind of aesthetic or recreational interests Plaintiffs attempt to vindicate, and concluded the plaintiff could not show prudential standing. In Alexander v. First Wind Energy LLC, the plaintiff sued a state-sponsored energy concern over the development of an industrial wind-energy project. 2:11-CV-00364-GZS, 2012 WL 681838, at *1 (D. Me. Feb. 28, 2012) report and recommendation adopted, 2:11-CV-364GZS, 2012 WL 966029 (D. Me. Mar. 21, 2012), aff'd (Oct. 23, 2012). Among her claims, the plaintiff asserted a Fourteenth Amendment claim that she faced injury from the development’s impact on the “scenic quality of the western mountains in which she lives.” Id. at *5. The Alexander court conducted a detailed prudential standing analysis and concluded that the plaintiff’s claim of an “aesthetic injury” did not fall within the zone of interest of the Fourteenth Amendment: The only federal law invoked in this case is the United States Constitution, more narrowly the Fifth and Fourteenth Amendments, with the Fourteenth being the operative amendment insofar as state action is concerned . . . . Alexander is attempting to vindicate an interest in scenic beauty as a purely constitutional right. Simply stated, the professed individual right to prevent others from engaging in development that might spoil the scenic beauty of the western mountains does not fall within any established zone of interest I am able to identify emanating from the Takings Clause, Privileges and Immunities Clause, the Due Process Clause, or the Equal Protection Clause of the Fourteenth Amendment. Id. (emphasis added). Hence, the Alexander court dismissed the plaintiff’s Fourteenth Amendment claim under Rule 12 for lack of prudential standing. Id. at *5-*6; see also Hinesburg Sand & Gravel Co. v. State, 693 A.2d 1045 (Vt. 1997) (holding that plaintiff’s claimed right to sell gravel was not within Fourteenth Amendment’s zone of interest). Alexander provides this Court with guidance in analyzing whether Plaintiffs can show prudential standing. Like Alexander, the “only federal law invoked in this case” is the Fifth and Fourteenth Amendment. Like Alexander’s claimed aesthetic interest, Plaintiffs seek to protect

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an aesthetic or recreational interest in wearing a snowboard while descending Alta’s slopes. Just as the Alexander court concluded, this Court should find that the claimed right to snowboard “does not fall within any established zone of interest” emanating from the Fourteenth Amendment. See id. at *5. In sum, there is no legal authority demonstrating that the Fourteenth Amendment protects one’s right to practice a particular sport, to use certain sporting equipment or to engage in leisure one way versus another. In short, there is no basis in the historical underpinnings of the Fourteenth Amendment or the 150 years of jurisprudence following its enactment to support Plaintiffs’ contention that the Constitution was meant to protect snowboarders. For this reason, the Court should grant Alta’s motion to dismiss. II. PLAINTIFFS’ CLAIM SHOULD BE DISMISSED BECAUSE THEY DO NOT CHALLENGE “FINAL AGENCY ACTION.” Plaintffs’ claim against the Forest Service should be dismissed because they do not challenge a final agency action by the Forest Service. And, because their claim fails as to the Forest Service, it also fails as to Alta. The only way this Court has jurisdiction to review Plaintiffs’ claim against the Forest Service is if Plaintiffs have a justiciable claim under the APA. 7 Indeed, Plaintiffs plead their case against the Forest Service under the APA. (Compl., ¶¶ 12, 50; see also Robbins v. U.S.

This Court’s jurisdiction to review Plaintiffs’ claim against the Forest Service is contingent on the APA because it provides the sole waiver of sovereign immunity invoked by Plaintiffs. See 5 U.S.C. § 702. Plaintiffs cite the Declaratory Judgment Act, 28 U.S.C. § 2201, and the general federal question jurisdiction statute, 28 U.S.C. § 1331. See Compl. ¶ 11, Request for Relief ¶ 1. But neither of those statutes provide waivers of sovereign immunity. Fostevdt v. United States, 978 F.2d 1201, 1202-03 (10th Cir. 1992); Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002). If Plaintiffs do not have a justiciable APA claim – either because they lack prudential standing or do not challenge final agency action – their claim against the Forest Service must be dismissed under Federal Rule of Civil Procedure 12(b)(1) because a suit against the United States cannot proceed in the absence of an express waiver of sovereign immunity. United States v. Mitchell, 463 U.S. 206, 212 (1983). And, if the claim is dismissed as to the Forest Service, it must also be dismissed as to Alta.

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Bureau of Land Management, 438 F.3d 1074, 1085 (10th Cir. 2006) (holding constitutional claim against government is reviewed “under the framework set forth in the APA.”). Plaintiffs do not have a justiciable claim under the APA because they do not challenge “final agency action” within the meaning of the APA, 5 U.S.C. § 704. 8 See also Utah Envtl. Congress v. Russell, 518 F.3d 817, 823 (10th Cir. 2008). To constitute final agency action, (1) “the action must mark the ‘consummation’ of the agency’s decision making 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. Dep’t of Interior, 377 F.3d 1147, 1155 (10th Cir. 2004) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). A complaint challenging an action that is not “final agency action” is not subject to judicial review and must be dismissed. FTC v. Standard Oil Co. of California, 449 U.S. 232, 246-47 (1980); Southern Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1158 (10th Cir. 2013) (agency decisions that are not “final agency action … are clearly not fit for judicial review”). As more fully explained below, while Plaintiffs allege that the Forest Service’s approval of the Permit and Plan constitute a final agency action, both the Permit and the Plan are utterly silent on Alta’s business decision regarding the use of snowboards. There is no agency action here, much less final agency action. The decision about permissible equipment at Alta was made by Alta, not the Forest Service. Alta’s business decision about snowboards use does not “mark the consummation of the agency’s decision making process” under the final agency action test identified in Bennett v. Spear because there was no Forest Service decision on the issue. See 520

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Plaintiffs also do not have a justiciable claim under the APA because they lack prudential standing for the reasons stated above.

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U.S. at 178. Again, the decision was made by Alta, not the Forest Service. Nor under the second element of the test has the Forest Service taken action with respect to snowboard use at Alta through a means “by which rights or obligations have been determined, or from which legal consequences flow.” Id. That Plaintiffs desire the Forest Service to regulate Alta differently with respect to Alta’s business decisions does not transform Alta’s actions into Forest Service “final agency action” under the APA. See Standard Oil, 449 U.S. at 246-47. This Court should dismiss Plaintiffs’ claim against the Forest Service because they do not seek review of the requisite “final agency action” that must support an APA claim. Lacking an agency action on the single issue before the Court – Alta’s business decision regarding the use of snowboards at Alta – Plaintiffs fail to state a claim for which relief can be granted under the APA. And, because this claim fails as to the Forest Service, it also fails as to Alta. 9 III. ALTA’S EQUIPMENT POLICY IS SIMPLY ONE OF MANY BUSINESS DECISIONS BY A PRIVATE ENTITY THAT DOES NOT INVOLVE STATE ACTION AND THEREFORE IS NOT SUBJECT TO ANY LEVEL OF CONSTITUTIONAL REVIEW. A. Generally.

Alta is a private corporation. Alta makes many business decisions about how to run its private business. Among other things, such decisions include what services it will offer (like the types and levels of ski instruction – alpine, telemark, freeride, nordic), what food to serve in its restaurants, what to sell in its gift shops, and what type of equipment it allows customers to use. Alta’s business decision as a private entity to restrict the use of certain equipment by its customers – including sleds, inner tubes, snowshoes, snowboards, and other unapproved devices – does not constitute state action any more than its other business decisions. Accordingly, Alta is

9

For example, the dismissal of the Forest Service would be fatal to any attempt to show that Alta is a “state actor,” as Plaintiffs must do to prevail on their claim.

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not a state actor, its decision to prohibit the use of snowboards is not state action, and the Fourteenth Amendment is not implicated in any way. Private conduct “is not subject to the Fourteenth Amendment's 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 plaintiff’s claim for lack of state action); see also Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (the Fourteenth Amendment “‘erects no shield against merely private conduct’”). The principle underlying the constitutional distinction between state and private action is clear and informative: “First, it ‘preserves an area of individual freedom by limiting the reach of federal law and federal judicial power.’ Second, it ‘avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.’” Gallagher, 49 F.3d at 1447 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982) (internal citations omitted). Additionally, unless Plaintiffs first establish state action, the Court need not reach the Fourteenth Amendment issue raised by Plaintiffs. See Gallagher, 49 F.3d at 1457 (declining to decide Fourteenth Amendment issue where plaintiff failed to establish state action); Am Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (the “resolution of the state-action issue would be sufficient by itself to reverse the judgment of the Court of Appeals”); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 358 (1974) (finding state regulation of private entity was not “sufficiently connected” with private entity’s action so as to make that action “attributable to the State for purposes of the Fourteenth Amendment” and therefore not reaching the constitutional issues). B. The Court Must Focus on the Specific Conduct at Issue.

Determining whether there is state action “begins by identifying ‘the specific conduct of which the plaintiff complains.’” Am. Mfrs. Mut. Ins. Co., 526 U.S. at 51. “The purpose of this

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requirement “is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Blum, 457 U.S. at 1004. Of course, the “specific conduct” at issue here is Alta’s ability to exclude “any type of skiing device that they deem creates an unnecessary risk to other skiers and/or the user of the device, or any device they deem causes undue damages to the quality of the snow, or is not consistent with the business management decisions.” (Compl. ¶ 51.) Thus, the question becomes whether Plaintiffs can show that Alta engaged in a state action in enforcing its equipment requirement. C. Alta is not a “State Actor” Under any Recognized Test for State Action. 1. Plaintiffs do not Satisfy the Symbiotic Relationship Test.

The Tenth Circuit uses four tests to determine whether a private entity is a state actor such that it can be held liable for a violation of the Equal Protection Clause of the Fourteenth Amendment. The four tests are “the ‘nexus test,’ the ‘public function test,’ the ‘joint action test,’ and the ‘symbiotic relationship test.’” Wittner v. Banner Health, 720 F.3d 770, 775 (10th Cir. 2013) (citations omitted). Plaintiffs rely on the “symbiotic relationship” test as the sole basis for their state action argument. (Compl. ¶ 57 (alleging that the Forest service entered into a “symbiotic relationship” with Alta.).) 10 This test requires a showing that the state “‘has so far insinuated itself into a position of interdependence’ with a private party that ‘it must be recognized as a joint participant in the challenged activity.’” Gallagher, 49 F.3d at 1451 (citation omitted). Importantly, where the government “has not put its own weight on the side of the proposed practice by ordering it,” there is no state action. Jackson, 419 U.S. at 357. Plaintiffs do not allege (nor could they) that the Forest Service has “put its own weight on
Plaintiffs also refer to a “joint enterprise” test, apparently as another name for the symbiotic relationship test. (See Compl. ¶ 57.) The Tenth Circuit does not recognize a “joint enterprise” test and refers only to the “symbiotic relationship” test. Hence, Alta refers only to the symbiotic relationship test. See Wittner, 720 F.3d at 775.
10

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the side of [the snowboard restriction] by ordering it.” See id. In fact, Alta’s equipment requirement that does not allow snowboards is not even something Plaintiffs allege the Forest Service required, as it is not mentioned in the Permit or the Plan. (See Compl. ¶ 55.) Instead, the Forest Service left it to Alta to determine the most appropriate way to manage uphill and downhill travel on the mountain in a manner that was consistent with Alta’s business, marketing, safety and terrain-related objectives. Critically, the Forest never ordered the “snowboarding ban” and in fact, was utterly silent on the specific issue that matters to Plaintiffs the most. In short, the Forest Service has no more insinuated itself into Alta’s equipment requirement decision than it has in the scores of other business decisions Alta has the “individual freedom” to make, including, for instance, about what hats to sell in its gift shops, food to sell in its restaurants, or the types of ski instruction to offer in its ski school. See Gallagher, 49 F.3d at 1447. Without more, the Court should grant Alta’s motion without further constitutional analysis. Despite the Forest Service’s silence on the question of the “snowboard ban,” Plaintiffs still have the temerity to allege that the Forest Service “approv[ed], endors[ed], and authorize[ed]” the equipment requirement. (Compl. ¶ 28.) Assuming this allegation was “plausible” under Iqbal (and it is not), 11 the allegation still is insufficient to show the level of government participation required to show a symbiotic relationship. Action taken by private entities, even with the approval or acquiescence of the State, is not state action. Am. Mfrs. Mut. Ins., 526 U.S. at 52 (Supreme Court found 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
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In Iqbal, the Supreme Court required that a plaintiff’s allegations at least plausibly support the asserted claims. Iqbal, 556 U.S. at 678. Here, Plaintiffs’ allegations that the Forest Service approved, endorsed and authorized the ban are implausible in light of the fact that Permit and Plan are utterly silent on the topic.

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Amendment”); Carlin Communication, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1361 (11th Cir. 1986) (“the mere approval by the [state] of a business practice of the regulated utility does not ‘transmute a practice initiated by the utility into state action’”). Lacking evidence that the Forest Service was actually involved in the challenged equipment requirement, Plaintiffs resort to a state action argument nearly entirely founded on the allegation that the Forest Service issued the Permit to Alta and approved the Plan. (Compl., ¶ 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 . . . .”). Courts, however, routinely find no state action where the government has merely issued a permit to use a public space. For example, in UAW, Local 5285 v. Gaston Festival, the Fourth Circuit found that the private entity was not a state actor even though it had been issued a permit to use public property and the city had provided the entity with “police protection, traffic department assistance, and sanitation services.” 43 F.3d 902, 904 (4th Cir. 1995); see also Jackson, 419 U.S. at 346 (finding no state action where state issued “certificate of public convenience” to utility); Wagner v. Metropolitan Nashville Airport Authority, 772 F.2d 227, 229 (6th Cir. 1985) (finding no state action where state leased airport space to private entity, emphasizing that “[c]ontemporary decisions stress the necessity of a close nexus between the state and the challenged conduct rather than application of a mechanistic formula based on business relationships such as the mere leasing of space by the state”); Watson v. Kenlick Coal Co., Inc., 498 F.2d 1183, 1193 (6th Cir. 1974) (“Accordingly, we hold that the issuance of a permit to strip mine to a private coal company for the purpose of enforcing that state's environmental policy is not such state action . . . .”) Thus, the Forest Service’s issuance of a Permit and approval of the Plan does not establish a symbiotic relationship. Nor is Alta a state actor simply because it is subject to some oversight by the Forest Service. Indeed, in controlling precedent the Supreme Court has rejected such assertions in

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situations involving far more highly-regulated private entities, even where such entities provide essential public services. In Jackson, the Court considered whether a privately-owned utility that was subject to “extensive regulation” by the state could be considered a state actor. 419 U.S. 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 electric service was not a state action even though the State had “specifically authorized and approved” the general policy that permitted the private entity to terminate service. Id. at 354. At best, Plaintiffs have merely alleged that Alta is “a heavily regulated, privately owned” business, an allegation that “is not sufficient to connect [the Forest Service] with [Alta’s] action so as to make the latter’s conduct attributable to the State for purposes of the Fourteenth Amendment.” See id. at 358. Likewise, Plaintiffs’ allegation that Alta pays the Forest Service a fee under the Permit does not show a symbiotic relationship. (See Compl. ¶ 56.) “Payments under government contracts . . . are insufficient to establish a symbiotic relationship between the government and a private entity.” Gallagher, 49 F.3d at 1453. This is especially so where, as here, the benefits the government receives “are indistinguishable from those that could be obtained through contracts generally.” Id. Hence, it cannot be said that the fees paid to the Forest Service create a symbiotic relationship. See id. 12

12

Plaintiffs may not rely on Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), a race discrimination case, and its views regarding leasing arrangements to attempt to establish a symbiotic relationship. In that case, the Supreme Court found a private business was a state actor in part because it leased parking garage space from a state agency. Id. at 723-25. In so holding, however, the Burton court specifically confined its holding to the facts of that case, announcing that its finding of state action was not a “universal truth” by which state leasing arrangements are judged. Id. at 725. Equally important, the Tenth Circuit has narrowly interpreted Burton. Further, showing that Burton was a narrow decision aimed at eradicating race discrimination and should be confined to its specific facts, the Tenth Circuit noted that “[t]he present Supreme Court . . . has not found state action in any case that has relied upon Burton. In each case in which the applicability of Burton has arisen, the Court has distinguished Burton on its facts as part of its justification for not finding state action.” Gallagher, 49 F.3d at 1451 (citation omitted).

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For all of these reasons, Plaintiffs have failed to make allegations sufficient to establish a symbiotic relationship between Alta and the Forest Service, and thus, the Court should dismiss Plaintiffs’ claims without considering the Fourteenth Amendment questions posed. 2. Plaintiffs do not Meet any of the Other Tests for State Action.

While Plaintiffs fail to establish state action under the symbiotic relationship test that they themselves selected, they also fail to show state action under the remaining three tests used in the Tenth Circuit, that is, the nexus test, the public function test and the joint action test. To show state action under the nexus test “depends on, among other things, whether the State has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Am. Mfrs. Mut. Ins. Co., 526 U.S. at 52. As discussed above, the Forest Service has, at most, permitted Alta the discretion to make all kinds of business decisions regarding how to run its business, one of which involves a decision regarding approved equipment. Indeed, Plaintiffs’ own allegations suggest that the Forest Service is unconcerned with the issue of what skiing devices are permitted at ski resorts as it has presumably issued permits to the many other ski areas on Forest Service land that permit snowboard use. (See, e.g., Compl. ¶¶ 36, 59.) Accordingly, Plaintiffs cannot show state action under the nexus test. Similarly, Plaintiffs’ allegations do not support a finding of state action under the public function test, which “has been limited strictly, and covers only private actors performing functions ‘traditionally the exclusive prerogative of the State.’” Nat’l Broadcasting Co. v. Communications Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir. 1988) (quoting Jackson, 419 U.S. at 353). Here, Plaintiffs have not alleged that the operation of ski resorts is traditionally the “exclusive prerogative” of the state, as such is clearly not the case. Plaintiffs do not, because they cannot, allege that governments exclusively or even typically operate ski areas, or that ski areas are facilities that, like voting booths or court systems are the “exclusive prerogative” of the state. See id. Indeed, the resort next door to Alta is the privately-run

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Snowbird resort. (See Compl. ¶¶ 59, 66.) Because operating a ski resort is not traditionally the prerogative of government, Plaintiffs cannot show state action under the public function test. Finally, Plaintiffs cannot establish the existence of state action under the joint action test, which asks “whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights.” Gallagher, 49 F.3d at 1453. Plaintiffs never allege that Alta and the Forest Service “have acted in concert” to ban snowboards. There is no allegation that the Forest Service evenly mildly suggests that Alta should ban snowboards. Such “silence establishes no more than the [Forest Service’s] acquiescence in [Alta’s] practices, which is “insufficient to establish state action under the joint action test.” Id. at 1455. For these reasons, Plaintiffs cannot show state action under any of the four tests. Thus, the Court may grant Alta’s motion without further constitutional analysis. IV. EVEN IF PLAINTIFFS COULD SHOW STATE ACTION, ALTA HAS A RATIONAL BASIS FOR ITS SNOWBOARD USE POLICY. A. Generally.

Alta is not a state actor and its equipment requirement is not state action. Thus, the Court may end its analysis here and grant Alta’s motion. Even if, however, Alta’s private policy restricting the use of snowboards could be construed as state action, it does not violate the Equal Protection Clause of the Fourteenth Amendment. The Unites States Supreme Court has developed a tripartite rubric for evaluating equal protection challenges. When a statute burdens certain “fundamental rights” such as voting rights or the right to interstate travel, a court will “strictly scrutinize” that statute, upholding it only if the state actor can clearly demonstrate a compelling interest. See, e.g., Atty. Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 906, (1986) (right to interstate travel); Storer v. Brown, 415 U.S. 724, 756 (1974) (Brennan, J., dissenting) (voting rights). Likewise, a court will apply strict scrutiny if a legislative distinction is based on a “suspect” classification such as race or national origin. See, e.g., Shaw v. Reno, 509 U.S. 630, 643-45 (1993) (racial classifications). In such cases, the state 19

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actor must demonstrate that the challenged classification is “substantially related” to an important objective. Clark v. Jeter, 486 U.S. 456, 461-62 (1988) (involving paternity suit). All other Fourteenth Amendment controversies are subject to the third and least exacting tier of scrutiny – the “rational basis” test. Hodel v. Indiana, 452 U.S. 314, 331-33 (1981) (holding statute survived rational basis review). Here, Plaintiffs concede that their Fourteenth Amendment claim is subject to the least exacting tier of scrutiny by arguing that “[t]here is no rational relationship” between Alta’s equipment requirement and any claimed interest. (See Compl. ¶ 106.) This is not surprising. Plaintiffs cannot seriously argue that wearing a particular winter sports device is a fundamental right. See Sheskey v. Madison Metro. Sch. Dist., 2007 WL 5595895, at *16 (W.D. Wis. Sept. 26, 2007) (holding plaintiffs did not have “fundamental right to participate in recreational programs” offered by private defendant). Similarly, Plaintiffs cannot sincerely contend that those “who stand sideways on a single snowboard” are suspect class members. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, (1973) (defining a suspect class as one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”). B. Plaintiffs’ Class-of-One Claim.

Plaintiffs allege that Defendants denied them their Fourteenth Amendment rights by treating Plaintiffs differently from “similarly situated” people who wear skis. (Compl. ¶¶ 100, 103.) Such “similarly situated” claims, in this nation’s jurisprudence, are known as “class-of-one claims.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (explaining “class-of-one” theory) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)); see also Jennings v. City of Stillwater, 383 F.3d 1199, 1210 (10th Cir. 2004) (“Plaintiff does not claim that the unequal treatment of her claim was due to her membership in any

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protected class or racial or gender group. Rather, she asserts that she suffered discrimination as a “class-of-one.”). 13 The Tenth Circuit “approaches class-of-one cases with caution because it is deeply wary of “turning even quotidian exercises of government discretion into constitutional causes.” Kansas Penn, 656 F.3d. at 1216 (citation omitted). For example, in Jennings, the Tenth Circuit denied the plaintiff’s Fourteenth Amendment claim, explaining that: [T]he concept of a class-of-one equal protection claim could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors. It is always possible for persons aggrieved by government action to allege, and almost always possible to produce evidence, that they were treated differently from others, with regard to everything from zoning to licensing to speeding to tax evaluation. It would become the task of federal courts and juries, then, to inquire into the grounds for differential treatment and to decide whether those grounds were sufficiently reasonable to satisfy equal protection review. This would constitute the federal courts as generalpurpose second-guessers of the reasonableness of broad areas of state and local decision making: a role that is both ill-suited to the federal courts and offensive to state and local autonomy in our federal system. 383 F.3d at 1210-11. Similarly, in Kansas Penn, the Tenth Circuit elaborated on the dangers posed by transforming disagreements about ordinary, low-level decisionmaking into federal constitutional claims: These concerns are magnified with challenges to low-level government decision-making, which often involves a great deal of discretion. The latitude afforded police officers, IRS agents, university administrators, zoning officials, and other, similar government actors necessarily results in a sizeable amount of random variation in outcome. If even innocuous inconsistencies gave rise to equal protection litigation, government action would be paralyzed. 656 F.3d at 1216-17.

13

Class-of-one claims may be brought by groups comprised of more than one plaintiff. See, e .g., Olech, 528 U.S. at 564 (“Whether the complaint alleges a class of one or of five is of no consequence because we conclude that the number of individuals in a class is immaterial for equal protection analysis.”); see also Hayes v. City of Torrington, 2004 WL 1498135, at * 1 (D.Conn., May 26, 2004) (“In their pleadings, Defendants have suggested that “class of one” claims are limited to classes of exactly one person. Defendants are wrong.”).

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To avoid the risk of paralysis the Tenth Circuit is concerned about, this Court should proceed with the utmost caution in analyzing Plaintiffs’ claim. If Plaintiffs prevail here, who is next to claim a constitutional right to a certain form of amusement on public lands such as Arches National Park, Washington D.C.’s Tidal Basin or the grounds of the Statue of Liberty? 14 C. Plaintiffs Cannot State a Class-of-One Claim. 1. The Similarly Situated Analysis.

To sustain a class-of-one 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, 656 F.3d at 1216. Plaintiffs cannot establish any of these three requirements. First, to show they are similarly-situated, Plaintiffs must establish that they

are “similarly situated in every material respect.” Id. This is a “substantial burden,” requiring Plaintiffs to demonstrate that “no rational person could regard the circumstances of the plaintiff to differ from those of a comparator.” Id. at 1218; see also Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.2007) (“This requirement demands more than lip service. It is meant to be a very significant burden.”)(quotation omitted)); Purze v. Village of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002) (requiring class-of-one plaintiff to demonstrate that the comparable properties were “prima facie identical in all relevant respects”) (emphasis in original). 15
14

One need simply go to any hiking trail in Utah and see the types of routine decisions that could be challenged in court if plaintiffs are successful in challenging Alta’s equipment decisions. Just to name a few examples, some trails are for hiking only, some allow hiking and horseback riding, others allow hiking, horseback, and bicycles, and yet others allow all of the above, plus motorcycles. To further complicate matters, the distinctions are not always motorized versus. non-motorized. For example, the famous Slickrock Trail in Moab, Utah, allows bicycles and motorcycles, but does not allow four wheelers. There are numerous other equipment decisions made on a daily basis, such as what types of floating devices can be used in municipal pools, what types of shoes (even down to the specific type of spikes) that may be worn on golf courses, etc.

Plaintiffs claim they are a victim of animus against snowboarders. This District Court has declined to use animus as a basis for a higher level of scrutiny in an equal protection analysis and still confines the analysis to the “standard rational basis test.” Kitchen v. Herbert, 961 F.Supp. 2d 1181; 2013 WL 6697874, at *21 (D. Utah Dec. 20, 2013).

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Plaintiffs are not similarly situated in every material or relevant respect to those who wear skis at Alta. Plaintiffs “stand sideways on a single snowboard,” rather than facing forward and directly downhill like skiers do. (Compl. ¶ 5.) While Plaintiffs minimize this distinction, they also plead that skiers do not have the “blind spot” that snowboarders have. (Id. ¶ 73.) Plaintiffs Complaint indicates that snowboarders are perceived by some as hazardous, and according to Plaintiffs, are “rightfully” characterized as “members of the younger generation.” (Id. ¶¶ 32, 83-84.) At least according to Plaintiffs, Snowboarders have their own “snowboarding counterculture” distinct from skiing, and skiers and snowboarders struggle to coexist in “harmony” with one another. (Id. ¶¶ 21, 32-33.) 16 These distinctions show that Plaintiffs have not met their substantial burden of showing “that comparators be “similarly situated in all material respects.”” Kansas Penn, 656 F.3d at 1218. This demanding requirement is in place because “a difference in treatment could legitimately be based on a number of different factors.” Id.; see also Jennings, 383 F.3d at 121314 (“When multiple variables are in play, however, the difference in treatment can be the product of a number of considerations, conscious or otherwise, many of them legitimate.”) Even relying solely on Plaintiffs’ naturally self-serving allegations, one can easily identify differentiating factors that explain allegedly dissimilar treatment. Thus, the business, demographic, cultural, marketing and safety differences that Plaintiffs highlight in their pleadings easily justify Alta’s equipment requirement. Because Plaintiffs cannot show that they are similarly-situated to the

Alta does not agree with Plaintiffs’ dramatized conclusion that a cultural conflict exists between skiers and snowboarders. Plaintiffs’ pleading strategy on this point skirts the boundaries of Rule 12’s requirements for setting forth plausible allegations. Iqbal, 556 U.S. at 678. Still, if there is an ounce of truth to this allegation, it simply highlights the fact that snowboarding and skiing are not substantially similar.

16

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relevant comparator, the Court should dismiss their complaint before even identifying the rational basis for Alta’s equipment requirement. a. Plaintiffs Have not Made the Threshold Showing That They Were Treated Differently From Others Who are Similarly Situated.

Even if Plaintiffs could meet their heavy burden under the similarly-situated analysis, Plaintiffs cannot show that they have been treated differently from those who ski at Alta. Like everyone else, Plaintiffs may access Alta at any time of year, including to ride Alta’s chairlifts and descend Alta’s slopes. That some may prefer to use a snowboard or other unapproved device, such as sleds, inner-tubes, or snowbikes does not mean that Alta is treating these individuals differently. Everyone is treated the same; they all must comply with Alta’s equipment rules regardless of their individual preferences. As Plaintiffs cannot show that Alta treats them differently than anyone else, they cannot sustain a claim under the Equal Protection Clause for this additional reason. b. Alta has a Rational Basis for its Equipment Requirement. i. The Tenth Circuit Presumes Alta’s Equipment Requirement is Valid.

Even if Plaintiffs could show that they were similarly situated and that they were treated differently, they still cannot show that Alta’s equipment requirement is irrational and thus in violation of the Fourteenth Amendment. Plaintiffs’ own allegations provide a rational basis for Alta’s equipment requirement. Under the rational basis test, “[a]n equal protection claim will fail “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Teigen v. Renfrow, 511 F.3d 1072, 1083 (10th Cir. 2007) (affirming Rule 12 dismissal of plaintiff’s equal protection claim). In fact, in cases like Plaintiffs’, the Tenth Circuit

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presumes the rationality of the conduct at issue and requires the Plaintiff to “overcome the presumption of rationality.” Id. at 1086; 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.”) “[A] classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller, 509 U.S. at 320. Defendants have “no obligation to produce evidence to sustain the rationality of [the snowboard ban],” nor is its equipment requirement “‘subject to courtroom factfinding and may be based on rational speculation unsupported by evidence and empirical data.’” Id. Moreover, a court may find a rational basis for conduct even though the defendant did not “‘actually articulate at any time the purpose or rationale supporting its classification.’” Id. quoting Nordlinger v. Hahn, 505 U.S. 1 (1992); see also Romer, 517 U.S. at 632 (“[i]n the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous”). ii. Plaintiffs’ Complaint Supplies the Rational Basis for Alta’s Equipment Requirement.

Here, Plaintiffs’ Complaint itself demonstrates that Plaintiffs cannot meet their burden of overcoming the rationality of Alta’s equipment requirement. First, Plaintiffs allege that Alta prevents the use of snowboards because its “business model caters to a skier-only market.” (Compl. ¶¶ 73-74.) Similarly, Plaintiffs allege that Alta prevents the use of snowboards because it prefers to “maintain a skiing culture.” (Id. ¶ 74.) These allegations clearly highlight Alta’s business interest in maintaining a skiing culture that caters to a skier-specific market. In fact,

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Plaintiffs plead that surveys confirm that a large percentage of skiers prefer Alta because it is a skier-only resort. Not surprisingly, Alta area businesses concluded that if customers preferred a skier-only destination, so did the business owners. (Id. ¶ 79.) Protecting Alta’s business interests provides the necessary rational basis for Alta’s equipment requirement. Additionally, Plaintiffs’ allegations (as well as common sense) reveal that snowboarders have a “blind spot” that skiers do not and some Alta users are concerned about safety in the presence of those who snowboard. (Compl. ¶¶ 73, 83-84.) Safety concerns clearly constitute a valid interest that Plaintiffs cannot overcome. Plaintiffs also allege that Alta prevents the use of snowboards because its “terrain is not conducive to snowboards.” (Compl. ¶ 74.) State actors like the government routinely make decisions about what types of uses are suitable for public lands. It is not irrational for state actors to determine that some winter sports equipment is more suitable than others on certain terrain, particularly mountainous, winter terrain. Much of Alta’s terrain requires long, high mountain traverses, which are difficult on a snowboard, and a number of its groomed slopes have relatively flat traverses as compared to some other resorts. While skiers can propel themselves on these traverses by “skating” and “poling,” snowboarders must do one of two things: (1) maintain excessive speed in order to carry themselves over the flat traverse (since they can neither skate nor pole and are strapped into the board), or (2) take their board off and walk or unstrap one foot and push like a skateboard after coming to a stop on a flat traverse. Both of these responses create safety issues that constitute a rational basis for Alta’s equipment requirement. Plaintiffs Complaint also points out that the same rational equipment distinction between

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skis and snowboards has been made by others. For example, Plaintiffs plead that snowboarding is “one of the most popular events” in the Olympics. (Compl. ¶ 40.) However, of the five Olympic snowboarding events – halfpipe, slope style, snowboard cross, snowboard slalom, and snowboard giant slalom – in none of these events do those riding snowboards compete against those riding skis. Those riding skis do compete in these same five events, but they do so separately due to the differences in the equipment used and the nature of the sports themselves. In short, any one of the reasons set forth in Plaintiffs’ Complaint support a finding of rational basis for the equipment requirement. A concern about the impact of the use of snowboards on business, safety, demographics, terrain, culture, or its customers is sufficient to support the prohibition. Indeed, neither Alta nor the Forest Service needs to produce evidence that any of these reasons are justifiable or even that those are the actual reasons, nor need there be any evidence in the record whatsoever regarding any rational basis at all. Rather, Alta may support its policy entirely “on rational speculation unsupported by evidence and empirical data.” Heller, 509 U.S. at 320. As Plaintiffs’ Complaint supports a finding of numerous rational bases for the equipment requirement, there is no equal protection violation even if the Court were to find that that the Defendants are state actors. iii. Plaintiffs’ Allegations of Animus do not Bar Dismissal of Their Complaint.

Plaintiffs portray themselves as the victims of “stereotypes, prejudices, animus and irrational fears.” (Compl. ¶¶ 21, 75.) Based on this perceived animus, Plaintiffs allege Alta’s equipment requirement is “motivated by a bare desire to disadvantage . . . an unpopular group . . . .” (Id. ¶ 72.) Their pleading strategy is no doubt an attempt to shoehorn their claim into a Fourteenth Amendment framework. See Romer, 517 U.S. at 624 (stating that a “bare . . . desire

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to harm a politically unpopular group cannot constitute a legitimate governmental interest.”). Plaintiffs’ argument fails for numerous reasons. First, the legal point Plaintiffs attempt to make relates to political unpopularity. See id. As has been established, the Fourteenth Amendment was enacted to eliminate historical and “invidious racial discrimination in the States.” Loving, 388 U.S. at 10. In this context, those who snowboard can hardly claim they represent the kind of politically unpopular community that the Constitution was designed to protect. Snowboarding is “one of the most popular events” in the Olympics. (Compl. ¶ 40.) Plaintiffs allege that snowboarding is an “all-American,” “mainstream” sport, that snowboarders comprise 40% of winter sports enthusiasts, and that Snowboarding became the fastest-growing winter sport. (Compl. ¶¶ 37, 40-41.) Plaintiffs even concede that “skiers and snowboarders, as a general matter, share the mountains, including those on public land, in harmony and without issue.” (Compl. ¶ 6.) Plaintiffs’ allegations of hostility are irrelevant because courts disregard such claims of animus if there is a rational basis for the alleged conduct. In Flying J, Inc. v. City of New Haven, the court dismissed an equal protection claim where the plaintiff pled that a regulation at issue was “maliciously and spitefully” directed at plaintiff. 549 F.3d 538, 545-48 (7th Cir. 2008). In so doing, Flying J specifically held that “[a]nimus comes into play only when, no rational reason or motive being imaginable for the injurious action taken by defendant against the plaintiff, the action would be inexplicable unless animus motivated it.” Id. at 546 (quoting Lauth v. McCollum, 424 F.3d 631, 634 (7th Cir. 2005).) The Flying J court explained that “a given action can have a rational basis and be a perfectly logical action for a government entity to take even if there are facts casting it as one taken out of animosity.” Id. at 547. Further, “[i]t is only

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when courts can hypothesize no rational basis for the action that allegations of animus come into play.” Id. (emphasis added); see also Powers v. Harris, 379 F.3d 1208, 1224 (10th Cir. 2004) (rejecting equal protection claim because “we have conceived of a legitimate state interest other than a “bare desire to harm”. . . .”). Similarly, Plaintiffs have not met the burden of showing Alta’s equipment requirement lacked a legitimate interest. (See supra, Part IV.C.b.i-ii.) For these reasons, Plaintiffs’ allegations of animus are no bar to dismissal. CONCLUSION For the foregoing reasons, the Court should dismiss Plaintiffs’ Complaint with prejudice. DATED this 21st day of March, 2014. RAY QUINNEY & NEBEKER P.C.

/s/ Frederick R. Thaler Frederick R. Thaler Robert O. Rice Attorneys for Defendant Alta Ski Lifts Company

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of March, 2014 I caused a true and correct copy of the foregoing MOTION TO DISMISS with the Clerk of Court using the CM/ECF system which sent notification of such filing to the following: Jonathan R. Schofield PARR BROWN GEE & LOVELESS 185 S State St Ste 800 Salt Lake City, UT 84111 jschofield@parrbrown.com Michael S. Anderson PARR BROWN GEE & LOVELESS 185 S State St Ste 800 Salt Lake City, UT 84111 manderson@parrbrown.com Rachel L. Wertheimer PARR BROWN GEE & LOVELESS 185 S State St Ste 800 Salt Lake City, UT 84111 rwertheimer@parrbrown.com

/s/ Christy McCarthy

1275757

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