DAVID B.

BARLOW, United States Attorney (#13117)
CARLIE CHRISTENSEN, Assistant United States Attorney (#0633)
JARED C. BENNETT, Assistant United States Attorney (#9097)
185 South State Street, #300
Salt Lake City, Utah 84111
Telephone: (801) 524-5682
Attorneys for the United States of America
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IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH
CENTRAL DIVISION
────────────────────────────────────────────────────────────────

WASATCH EQUALITY; RICK ALDEN;
DREW HICKEN; BJORN LEINES; AND
RICHARD VARGA,

Plaintiffs,

vs.

ALTA SKI LIFTS COMPANY, d.b.a. ALTA
SKI AREA; UNITED STATES FOREST
SERVICE; and DAVID WHITTEKIEND,
Wasatch-Cache National Forest Supervisor;

Defendants.



Civil No. 2:14CV26DB

REPLY MEMORANDUM IN
SUPPORT OF MOTION TO DISMISS

Honorable Dee Benson

────────────────────────────────────────────────────────────────

The United States Forest Service (“Forest Service”) and David Whittekiend (collectively
“Federal Defendants”) file this reply memorandum in support of their Motion to Dismiss, ECF
No. 21. As shown below and in the Federal Defendants’ Motion to Dismiss, this Court lacks
subject matter jurisdiction because the United States has not waived its sovereign immunity, and
Plaintiffs have failed to state a claim under the Fifth Amendment. Consequently, this Court
should dismiss this action with prejudice.

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Table of Contents
Argument ........................................................................................................................................ 3
I. PLAINTIFFS HAVE FAILED TO ESTABLISH A WAIVER OF SOVEREIGN
IMMUNITY BECAUSE THEY CANNOT SHOW THAT ALTA’S SNOWBOARD
PROHIBITION CONSTITUTES STATE ACTION.............................................................. 3
A. Section 1331 Does Not Waive the United States’ Sovereign Immunity ...................... 4
B. Plaintiffs Cannot Establish a Waiver of Sovereign Immunity Under the APA Because
They Cannot Establish State Action. .................................................................................. 4
1. Plaintiffs have failed to satisfy the nexus test to demonstrate state action ............... 7
2. Plaintiffs failed to satisfy the symbiotic relationship test. ........................................ 9
3. Plaintiffs have also failed to satisfy the joint-activity test. ..................................... 13
4. Plaintiffs have also failed to satisfy the essential state function test. ..................... 14
II. PLAINTIFFS FAIL TO STATE A CLAIM FOR RELIEF AGAINST THE FEDERAL
DEFENDANTS .................................................................................................................... 17
A. Plaintiffs’ Repackaged Class-Based Claim Is Indistinguishable From Its Class-of-One
Claim, Which Means That Both Fail As a Matter of Law. ............................................... 19
B. Plaintiffs Have Failed to Sufficiently Allege that They Have Been Treated Differently
Than Others Who Are Similarly Situated or That Any Different Treatment Lacks a
Rational Basis .......................................................................................................................
23
1. Plaintiffs have failed to show that they were treated differently from others who are
similarly situated ..................................................................................................... 23
2. Plaintiffs cannot show that any differences in treatment are without an objectively
reasonable basis. ..................................................................................................... 25
Conclusion .................................................................................................................................... 26



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ARGUMENT

I. PLAINTIFFS HAVE FAILED TO ESTABLISH A WAIVER OF SOVEREIGN
IMMUNITY BECAUSE THEY CANNOT SHOW THAT ALTA’S SNOWBOARD
PROHIBITION CONSTITUTES STATE ACTION

The Federal Defendants’ Motion to Dismiss demonstrated Plaintiffs’ failure to show a
waiver of sovereign immunity under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702
because Plaintiffs cannot show that Alta’s snowboard prohibition constitutes state action. ECF
No. 21 at 6-9. Specifically, under section 702 of the APA, Plaintiffs must show that Alta’s
no-snowboard policy was an act of a federal agency, officer, or employee taken in “an official
capacity” or under “color of legal authority,” 5 U.S.C. § 702. ECF No. 21 at 6-7. Alta’s
no-snowboard policy, however, is not state action because there is neither a symbiotic
relationship between, nor joint action by Alta and the Federal Defendants. ECF No. 21 at 8-13.
Therefore, absent state action, there is no waiver of sovereign immunity under the APA and,
consequently, no subject matter jurisdiction, which requires dismissal of this action.
Plaintiffs’ response contends that this Court has subject matter jurisdiction over this
action. First, Plaintiffs contend that 28 U.S.C. § 1331 provides this Court with jurisdiction.
Second, they claim a waiver of sovereign immunity under section 702 of the APA based upon
their allegations that the Forest Service and its supervisor “either acted or failed to act, in an
official capacity, to the detriment of Plaintiffs in violation of Equal Protection.” ECF No. 29 at
25. Therefore, Plaintiffs argue, they have established a waiver of sovereign immunity.
As set forth below, Plaintiffs’ arguments miss the mark. First, 28 U.S.C. § 1331 does
not waive the United States’ sovereign immunity. Second, Plaintiffs have failed to establish
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state action under section 702 and, therefore, fail to show a waiver of sovereign immunity.
A. Section 1331 Does Not Waive the United States’ Sovereign Immunity.

Plaintiffs’ argument under 28 U.S.C. § 1331 is a red herring that is intended to bolster
their weak jurisdictional argument for bringing this action. It is well established that 28 U.S.C.
§ 1331 does not waive sovereign immunity even when a party brings a claim under the
Constitution. Merida Delgado v. Gonzalez, 428 F.3d 916, 919 (10th Cir. 2005) (“We first
reject Mr. Delgado’s claims that the Constitution and 28 U.S.C. § 1331 waive sovereign
immunity.”). “Consequently, district court jurisdiction cannot be based on § 1331 unless some
other statute waives sovereign immunity.” Id. As shown in the next section, no other statute
waives sovereign immunity here.
B. Plaintiffs Cannot Establish a Waiver of Sovereign Immunity Under the APA
Because They Cannot Establish State Action.

Plaintiffs cannot establish a waiver of sovereign immunity under the APA because they
cannot establish state action. To waive sovereign immunity under section 702, Plaintiffs must
establish that “an agency or an officer or employee thereof acted or failed to act in an official
capacity or under color of legal authority . . . .” 5 U.S.C. § 702 (emphasis added). The terms
“official capacity” and “under color of legal authority” describe “the character of the defendant
at the time of the suit. So read, it limits a covered civil action to one against a federal official or
agency who is at that time acting—or failing to act—in an official or apparently official way.”
Stafford v. Briggs, 444 U.S. 527, 535 (1980) (emphasis added, quotations omitted). The
meaning of the language in section 702 is strikingly similar to the phrase “under the color of
law” used in 42 U.S.C. § 1983, which means “under ‘pretense’ of law.” Screws v. United
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States, 325 U.S. 91, 111 (1945). “Thus, [under section 1983] acts of officers in the ambit of
their personal pursuits are plainly excluded. Acts of officers who undertake to perform their
official duties are included whether they hew to the line of their authority or overstep it.” Id.
Where, a plaintiff brings an equal protection claim against a government agency or official under
section 1983, Courts interpret the phrase “under color of law” to require a plaintiff to establish
that the challenged conduct was “state action.” United States v. Price, 383 U.S. 787, 794 n.7
(1966) (“In cases under [42 U.S.C.] § 1983, ‘under color of law’ has consistently been treated as
the same thing as the ‘state action’ required under the Fourteenth Amendment.”). Given that
“under color of law” requires a plaintiff to show “state action,” the synonymous phrases in
section 702 (i.e., “official capacity” and “under color of legal authority”), should mean the same
thing. Smith v. City of Jackson, Miss., 544 U.S. 228, 260 (2005) (“To be sure, where two
statutes use similar language we generally take this as ‘a strong indication that [they] should be
interpreted pari passu.’”). Thus, for Plaintiffs to establish a waiver of sovereign immunity
under section 702, they must prove “state action.”
Here, Plaintiffs have failed to demonstrate that Alta’s decision to prohibit snowboards
constitutes “state action.”
1
State action requires both an alleged constitutional deprivation
“caused by the exercise of some right or privilege created by the State or by a rule of conduct
imposed by the State or by a person for whom the State is responsible,” and that “the party
charged with the deprivation must be a person who may fairly be said to be a state actor.”

1
Plaintiffs’ failure to satisfy the state action requirement not only requires dismissal of their
complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), but also
requires dismissal of their complaint for failure to state a claim upon which relief may be granted
pursuant to Fed.R.Civ.P. 12(b)(6).
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Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); see Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 156, (1978). The Supreme Court’s approach to the latter question begins by
identifying “the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S.
991, 1003 (1982) (“Faithful adherence to the ‘state action’ requirement . . . requires careful
attention to the gravamen of the plaintiff’s complaint.”).
In this case, the gravamen of Plaintiffs’ complaint is that Alta’s snowboarding prohibition
is unconstitutional and violates the equal protection clause. ECF No. 2 at ¶ 112. Thus, for
purposes of demonstrating state action, the specific question here is whether Alta’s decision to
prohibit snowboards may fairly be attributable to the Federal Defendants.
Plaintiffs’ complaint, though remarkable for its energy and length, lacks sufficient factual
matter, even accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To demonstrate state action, Plaintiffs generally allege that Alta and the Forest Service have a
“complicated and entangled” relationship, ECF No. 29 at 33. Plaintiffs’ complaint, however,
relies largely on the federal regulations and permit provisions that govern Alta’s obligations to
the Forest Service. ECF No. 2, ¶ 47 (Alta operates a ski resort on public land under a Forest
Service Special Use Permit and is subject to the provisions of the Permit); id. at ¶ 48 (the Forest
Service must approve Alta’s operation plan each year); id., ¶ 55 (the Forest Service “exercises
substantial control” over Alta’s use of public land by approving “nearly every action” taken by
Alta); id., ¶56 (the Forest Service receives a fee based on a percentage of revenue from lift-ticket
sales and ski-school operations); and id., ¶64 (Alta’s trail map contains a Forest Service logo).
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Establishing state action, however, cannot be satisfied by simply reciting the contents of
the Forest Service permit and its regulatory scheme. If true, then any holder of a government
permit would be a state actor and any challenge to the administration or implementation of the
permit would be subject to an equal protection analysis. But, that is not the law. A private
entity, such as Alta, does not act under color of state law or become a state actor merely by virtue
of participating in a highly regulated activity or by complying with state or federal regulations.
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Jackson v. Metro. Edison Co., 419
U.S. 345, 350 (1974) (“The mere fact that a business is subject to state regulation does not by
itself convert its action into that of the State for purposes of the Fourteenth Amendment.”).
The Tenth Circuit Court of Appeals relies on four different tests to determine whether
private action amounts to state action in civil rights cases. These tests are: (1) the nexus test,
(2) the symbiotic relationship test, (3) the joint activity test, and (4) the essential state function
test. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). Of
these four tests, Plaintiffs’ complaint relied on just two: (1) the “symbiotic relationship” test, and
(2) the “joint activity” test. ECF No. 2, ¶ 57. Plaintiffs, however, now assert that regardless
of which of the four tests is applied, their allegations are sufficient to establish the requisite state
action. ECF No. 29 at 33. As set forth below, Plaintiffs’ complaint lacks the requisite factual
to satisfy any one of the four “state action” tests.
1. Plaintiffs have failed to satisfy the nexus test to demonstrate state action.

Plaintiffs’ allegations do not satisfy the nexus test because Plaintiffs have failed to allege
that the Forest Service coerced or otherwise significantly encouraged or directed Alta’s decision to
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prohibit snowboards. Under the nexus test, a plaintiff must show a “close nexus between the
State and the challenged action of the [private] entity so that the action of the latter may be fairly
treated as that of the State itself.” Jackson, 419 U.S. at 351. A state normally can be held
responsible for a private decision “only when it has exercised coercive power or has provided
such significant encouragement, either overt or covert, that the choice must in law be deemed to
be that of the State.” Blum, 457 U.S. at 1004. A state’s passive acquiescence in, or mere
approval of, the challenged conduct is not sufficient to establish the necessary nexus. Id.
The inquiry here is a targeted one. The focal point is the connection between the
government and the challenged conduct, not the broader relationship between the government
and the private entity. Id.; see also Sybalski v. Indep. Grp. Home Living Program, Inc., 546
F.3d 255, 257–58 (2d Cir. 2008) (“It is not enough, however, for a plaintiff to plead state
involvement in some activity of the institution alleged to have inflicted injury upon a plaintiff;
rather the plaintiff must allege that the state was involved with the activity that caused the injury
giving rise to the action.”). Thus, the question is limited to whether the Forest Service coerced,
significantly encouraged, or directed Alta’s decision to prohibit snowboards. The answer is no.
Plaintiffs have not alleged that the Forest Service coerced Alta or otherwise encouraged or
directed Alta’s decision to prohibit snowboards. Nor could Plaintiffs do so. Neither the
applicable regulations nor the terms of the Forest Plan and Permit dictate the decision to prohibit
snowboards on Forest Service land. In fact, Plaintiffs acknowledge that the Forest Service does
not have an anti-snowboarding policy and that snowboards are not “explicitly or officially
prohibited” by the Forest Plan. ECF 29 at 38-39; ECF No. 2, ¶ 2 (recognizing that there are
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several ski areas on National Forest System land in Utah, throughout the United States, and even
adjacent to Alta where snowboarding occurs); S. Rep. 112-55 at 2 (2011) (recognizing that as of
2011 the Forest Service had permitted 120 ski areas in 13 states many of which included
snowboarding). Thus, there is no reasonable basis from which to infer that the Forest Service
coerced or otherwise encouraged or directed Alta’s decision to prohibit snowboards at Alta.
Rather, the decision to preclude the use of snowboards at Alta is solely Alta’s decision.
Under the terms of its operations plan, it is Alta who “reserves the right” to exclude any type of
skiing device that it deems creates an unnecessary risk to other skiers, causes undue damage to
the quality of the snow, or is not consistent with its business decisions. Plan § VIII(D)(4).
Plaintiffs can satisfy the nexus test only by demonstrating that the Forest Service coerced
or significantly encouraged Alta’s snowboard prohibition. Plaintiffs’ allegations here, at best,
demonstrate mere acquiescence in, or approval of, Alta’s decision by the Forest Service which is
not sufficient to satisfy the nexus test. Blum, 457 U.S. at 104-05.
2. Plaintiffs failed to satisfy the symbiotic relationship test.

Plaintiffs have also failed to satisfy the symbiotic relationship test because they cannot
demonstrate that the Forest Service has so far insinuated itself into a position of interdependence
with Alta that it is a joint participant in Alta’s decision to prohibit snowboards. Under the
symbiotic relationship test, state action is present if 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.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961). In
Burton, the Court held that a privately owned restaurant’s refusal to serve an African-American
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customer constituted state action because the restaurant leased space from a parking garage
owned by a state agency and the state profited from the restaurant’s discriminatory conduct.
Subsequent Supreme Court decisions, however, have read Burton narrowly holding that
extensive state regulation, the receipt of substantial state funds, and even the performance of
important public functions do not necessarily establish the kind of symbiotic relationship
between the government and a private entity that is required for state action. See, e.g., Blum,
457 U.S. at 1011-12, 1027 (finding that state licensing of nursing homes, subsidization of capital
and operating costs, and payment of medical expenses of ninety percent of patients do not
establish symbiotic relationship); Rendell-Baker v. Kohn, 457 U.S. 830 at 842, 846 (1982)
(holding that private school receiving ninety percent of its operating budget from public funds
not in symbiotic relationship with the state); Jackson, 419 U.S. at 358 (determining that no
symbiotic relationship between utility company and state even though company was heavily
regulated and enjoyed a partial monopoly and the state approved a tariff setting forth challenged
method of terminating service).
Other decisions have emphasized the Burton Court’s finding that the restaurant was an
indispensable part of a state project and that the state profited from the restaurant’s
discrimination. See, e.g., Gallagher, 49 F.3d at 1453 (rejecting claim by concert goers that pat
down searches conducted by private security company constituted “state action” where the
profits generated from the allegedly unconstitutional conduct were not indispensable elements in
the university’s financial success); Vincent v. Trend W. Tech. Corp., 828 F.2d 563, 569 (9th Cir.
1987) (noting that although private firm “may have been dependent economically on its contract
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with the Air Force,” the contract in question “was most certainly not an indispensable element in
the Air Force’s financial success”).
In Gallagher, the Tenth Circuit pointed out that the decisions on which plaintiffs relied
and which found the existence of a symbiotic relationship, were based upon a number of factors
not present in Gallagher. For example, in Milo v. Cushing Municipal Hospital, 861 F.2d 1194,
1196 (10th Cir. 1988), the Tenth Circuit found the existence of a symbiotic relationship between
a municipally owned hospital and a private corporation which managed the hospital because the
city had established a public trust to oversee the hospital, the public trust had then entered into an
operating agreement with the private corporation, and the governing board of the hospital trust
consisted of three city commissioners and two officials from the private corporation. Thus, the
Gallagher court concluded that the private company and the municipal hospital in Milo were
functionally intertwined in a way in which the University of Utah, the concert promoter, and the
private security company were not. Gallagher, 49 F.3d at 1452.
Plaintiffs, however, claim that the circumstances in this case, unlike Gallagher or other
cases cited by Gallagher, are different because of the “myriad of factors” that suggest that
defendants are “joint participants in the challenged activity.” ECF No. 29 at 40. Significantly,
however, those factors to which courts typically attach special weight for purposes of the
symbiotic relationship test are not present here.
First, the fact that Alta is a regulated entity that must comply with the terms of its Ski
Area Permit and the statutory and regulatory framework that governs permit holders and
occupiers of National Forest lands is not sufficient to establish state action under the nexus test.
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As set forth above, a private entity does not act under color of state law or become a state actor
merely by virtue of participating in a highly regulated activity or by complying with state or
federal law. Am. Mfrs. Mut. Ins. Co., 526 U.S. at 50; Jackson, 419 U.S. at 350.
Second, the fact that the Forest Service has authorized Alta’s operation of a ski resort on
public lands administered by the Forest Service does not establish an insinuation of the Forest
Service into Alta’s business activities. Gallagher, 49 F.3d at 1452. To the contrary, courts
have recognized that the mere provision of a recreational venue (such as athletic facilities) does
not give rise to state action. See Gilmore v. City of Montgomery, 417 U.S. 556, 574 (1974);
Sherman v. Cmty. Consol. Sch. Dist. 21, 8 F.3d 1160, 1167-68 (7th Cir. 1993); Magill v.
Avonworth Baseball Conference, 516 F.2d 1328, 1333, 1335 (3d Cir. 1975).
Third, Alta’s decision to prohibit snowboards has not generated profits that were an
indispensable element in the Forest Service’s financial success or created a long-term financial
dependence on Alta’s operations. See Gallagher, 49 F.3d at 1452. Alta’s permit fees
constitute less than 0.1% of the Forest Service’s annual budget. Compare ECF No. 2, ¶ 56 and
Pub. L. No. 112-10, §§ 1741 to 1747 (appropriating over $5 billion to the Forest Service for
fiscal year 2012). This minute percentage becomes even smaller when compared with the
revenue from permit fees for 100 plus ski areas, livestock grazing, timber harvesting, mineral
and energy production, and all other uses for which the Forest Service collects fees. Therefore,
as to the profits that the Forest Service received from Alta’s ski operations, “the element of
indispensability is clearly lacking.” Gallagher, 49 F.3d at 1453 (emphasis added).
Finally, unlike the defendants in Milo, where the Tenth Circuit found a symbiotic
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relationship existed because several officials from the private corporation sat on the board of the
public trust that oversaw the municipal hospital’s operations, the Forest Service and Alta are not
functionally intertwined. Gallagher, 49 F.3d at 1452. Plaintiffs have not alleged that Forest
Service employees sit on Alta’s managing board, that Alta’s management executives oversee any
aspects of the Forest Service’s operations, or that Alta and the Forest Service have an ownership
interest in the other’s business. Accordingly, because the Forest Service has not insinuated
itself into a position of interdependence with Alta such that it is a joint participant in Alta’s
decision to prohibit snowboards, there is no symbiotic relationship between the Forest Service
and Alta and no state action.
3. Plaintiffs have also failed to satisfy the joint-activity test.

Plaintiffs have also failed to satisfy the joint-activity test because the Forest Service and
Alta have not acted in concert to deprive snowboarders of their alleged constitutional rights. State
action exists under the joint-action test if the private party is a “willful participant in joint action
with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980). The focus of this test is
not on long-term interdependence between the state and a private entity, but whether state
officials and private parties have acted in concert to effect a particular deprivation of
constitutional rights. Gallagher, 49 F.3d at 1453. “[I]f there is a substantial degree of
cooperative action between state and private officials . . . or if there is overt and significant state
participation, in carrying out the deprivation of the plaintiff’s constitutional rights, state action is
present.” Id. at 1454 (internal quotations and citations omitted). Again, mere acquiescence of a
state official to private-party actions is insufficient. Flagg Bros., 436 U.S. at 164.
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Plaintiffs acknowledge that mere acquiescence in Alta’s decision is not sufficient to satisfy
the joint action test, but assert that the government has participated in and had influence over the
continued enforcement of Alta’s snowboard prohibition. ECF No. 29 at 41. Plaintiffs’ claim is
plainly contrary to the record in this case and their own prior concessions that the Forest Service
does not have an anti-snowboarding policy, ECF No. 2, ¶ 2; and that snowboards are not
“explicitly or officially prohibited” by the Forest Service Plan. ECF 29 at 38-39.
Further, Plaintiffs’ general reliance on the “the multitude of factors” set forth in their
complaint and memorandum does nothing to address the question of whether the Forest Service
and Alta acted in concert to effect the particular deprivation of constitutional rights claimed by
Plaintiffs. Gallagher, 49 F.3d at 1453. To the contrary, as to the challenged conduct, namely
Alta’s snowboard prohibition, the Permit and the Plan demonstrate that there was no concerted
action between the Forest Service and Alta.
4. Plaintiffs have also failed to satisfy the essential state function test.

Finally, Plaintiffs have failed to satisfy the essential state function test because the
operation of a ski resort is neither a traditional nor exclusive power reserved to the state. Under
the public-function test, a court determines whether the state has delegated to a private party
“powers traditionally exclusively reserved to the State.” Jackson, 419 U.S. at 352; Gallagher,
49 F.3d at 1456. The public-function test is difficult to satisfy, because while many functions
may be traditionally governmental, few are “exclusively” governmental functions, as the test
requires. Gallagher, 49 F.3d at 1456.
In this case, Plaintiffs cannot allege, let alone convincingly argue, that Alta’s operation of
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a ski resort is a power delegated to Alta by the Forest Service which is “traditionally associated
with sovereignty.” Jackson, 419 U.S. at 353. Nor can they allege that such an operation is
“exclusively” the prerogative of the State. Neither amateur sports nor recreational activities are
traditional or exclusive governmental functions. Nat’l Collegiate Athletic Ass’n v. Tarkanian,
488 U.S. 179, 197 n.18 (1988) (discussing the NCAA’s overriding function of fostering amateur
athletics at the college level, noting that “while we have described that function as ‘critical,’ by
no means is it a traditional, let alone an exclusive state function” (citation omitted)); San
Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 545, (1987) (“Neither the
conduct nor the coordination of amateur sports has been a traditional governmental function.”);
Kuba v. Sea World, Inc., 428 Fed.Appx. 728 (9th Cir. 2011) (holding that the operation of a
theme park for recreational purposes has long been the province of private entrepreneurs, and
thus it is not a traditional and exclusive governmental function); Perkins v. Londonderry
Basketball Club, 196 F.3d 13, 19 (1st Cir. 1999) (holding that the administration of youth
basketball league lacks the element of exclusivity and is not a traditional public function).
Plaintiffs, however, claim that few public functions are as traditionally and exclusively
performed by the government as “the administration of the national parks and forest.” ECF No.
29 at 41. Plaintiff cite no support for their claim other than Evans v. Newton, 382 U.S. 296
(1966), which is inapposite here. In Evans, the decedent left a will that bequeathed to the city a
tract of land which was to be used as ‘a park and pleasure ground’ for white people only. Id. at
297. The park, however, was maintained for many years by the city, was an integral part of the
city’s activities, and was granted a tax exemption by the city pursuant to state law. Id. at 301.
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The Court—reasoning that the predominant character and purpose of this park was
municipal—held that if the municipality remained entwined in the management or control of the
park, it would be subject to the restraints of the Fourteenth Amendment.
In Flagg Bros., Inc., the Supreme Court subsequently expressed doubt as to whether the
operation of a park for recreational purposes is an exclusive public function or that Evans
“intended to establish any such broad doctrine in the teeth of the experience of several American
entrepreneurs who amassed great fortunes by operating parks for recreational purposes.” Flagg
Bros., Inc., 436 U.S. at 159 n.8. The Court went on to note that Evans rested on a finding of
“ordinary state action under extraordinary circumstances.” The Court’s opinion emphasized
that the record showed no change in the municipal maintenance and concern over this facility
after the transfer of title to private trustees and that the transfer had not eliminated the actual
involvement of the city in the daily maintenance and care of the park. Id.
This case, however, differs markedly from Evans where the city actually operated and
maintained the park. It was this “tradition of municipal control” in Evans that led the Supreme
Court to properly find state action. In this case, however, Alta Ski Lifts Company, a private
for-profit corporation, operates and maintains the ski resort, thus, bearing no resemblance to the
facts in Evans. Accordingly, because the operation of a ski resort here does not constitute a
traditional or exclusive state function, the public function test for state action is not satisfied.
Consequently, Plaintiffs have failed to establish “state action” and a waiver of sovereign
immunity under section 702 of the APA.
2


2
To the extent Plaintiffs challenge the Ski Area Permit, that challenge is barred by the six-year
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II. PLAINTIFFS FAIL TO STATE A CLAIM FOR RELIEF AGAINST THE
FEDERAL DEFENDANTS

Even assuming that Plaintiffs can establish a waiver of sovereign immunity by proving
that Alta’s snowboard ban is really the Federal Defendants’, the Federal Defendants’ Motion to
Dismiss showed that this action should still be dismissed for two reasons. First, a
“class-of-one” Equal Protection Clause claim does not exist as a matter of law where, as here, the
United States exercises its plenary authority under Article IV of the Constitution to determine
which activities are allowed on its property. ECF No. 21 at 13-20. Further, if all federal land
management decisions that allow certain uses but preclude others are subject to challenge under
the Equal Protection Clause, the Executive Branch will struggle to function, and the Judicial
Branch will become the “‘general-purpose second-guessers of the reasonableness of broad areas
of [federal] decisionmaking; a role that is both ill-suited to the federal courts and offensive” to
the Separation of Powers Doctrine. ECF No. 21 at 19. Thus, Plaintiffs’ class-of-one claim
fails as a matter of law. Second, even if there is a legally cognizable equal protection claim, it
still fails because Plaintiffs are not treated differently than others who are similarly situated, and,
even if they were, there is a rational basis for such treatment. ECF No. 21 at 20-23.
Therefore, this action must be dismissed for Plaintiffs’ failure to state a claim.

limitations period. Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1245 (10th Cir. 2012)
(stating that general limitations period for most claims against the United States is six years).
Also, to the extent Plaintiffs allege that the Federal Defendants have failed to enforce their
alleged Equal Protection Clause right to snowboard at Alta, such is precluded from judicial
review under 5 U.S.C. § 701(a)(2) because enforcement decisions are “committed to agency
discretion by law.” Heckler v. Chaney, 470 U.S. 821, 837-38 (1985) (holding that agency’s
decision not to take enforcement action was not reviewable under the section 701(a)(2) of the
APA because it was “committed to agency discretion” by law).
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Surprisingly, Plaintiffs’ response to the Federal Defendants’ first argument was to ignore
it entirely. Plaintiffs fail to provide any argument whatsoever refuting the fact that the United
States’ plenary discretion over which activities it will allow on its land precludes a class-of-one
equal protection claim. Instead, Plaintiffs merely restate the allegations in their complaint that
they believe are sufficient to plead a class-of-one claim, ECF No. 29 at 50-52, and then introduce
a new legal theory: a class-based equal protection claim. ECF No. 29 at 45-50. Under this
new theory, Plaintiffs argue that their complaint pleads sufficient facts to survive a motion to
dismiss because the complaint alleges that: (1) “snowboarders” are a class, (2) snowboarders are
treated differently than similarly-situated individuals (i.e., skiers) by not being able to access
Alta’s ski lifts, and (3) there is no rational basis for treating snowboarders differently than those
who can access Alta’s ski lifts. ECF No. 29 at 45-50. After introducing this new theory,
Plaintiffs argue that they are being treated differently than skiers without any rational basis and,
therefore, have stated a claim for relief. ECF No. 29 at 45-50.
However, as shown below, Plaintiffs are wrong for two reasons. First, repackaging
Plaintiffs’ doomed “class-of-one” claim as a “class-based” claim does not save it from dismissal
because, in this action, a “class-of-one” claim and a “class-based” claim are identical.
Accordingly, the United States’ plenary discretion over federal land and the Separation of
Powers Doctrine foreclose Plaintiffs’ claim under either a class-of-one or a class-based theory.
Second, Plaintiffs are not similarly situated to others whose equipment is allowed at Alta, but
even if Plaintiffs are similarly situated, there is a rational basis for the different treatment.
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A. Plaintiffs’ Repackaged Class-Based Claim Is Indistinguishable From Its
Class-of-One Claim, Which Means That Both Fail As a Matter of Law.

Plaintiffs’ attempt to avoid dismissal by repackaging their class-of-one claim as a
class-based claim fails because, in this action, they are the same claim and, therefore, are subject
to the same analysis, which requires their dismissal. A class-of-one claim exists when “the
plaintiff[s] allege[] that [they have] been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.” Vill. Of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000) (per curiam); see also N. Pacifica LLC v. City of Pacifica,
526 F.3d 478, 486 (9th Cir. 2008); Jicarilla Apache v. Rio Arriba Cnty., 440 F.3d 1202, 1209
(10th Cir. 2006); Jackson v. Burke, 256 F.3d 93, 97 (2d Cir. 2001). Although called a
“class-of-one” claim, “the number of individuals in a class is immaterial for equal protection
analysis.” Olech, 528 U.S. at 564 n.*. Thus, an entire group of people may assert a
class-of-one claim if the government intentionally treated them differently from others similarly
situated without any rational basis for doing so.
The same standard applies to a class-based theory here. Plaintiffs are not claiming to be
members of a suspect class and are not asserting that the government is impinging upon a
fundamental right. Consequently, Plaintiffs can only establish a class-based theory if they show
that they are “member[s] of a class that was denied a benefit available to other similarly situated
individuals, and that such denial is not rationally related to legitimate state interests.” Vasquez
v. Cooper, 862 F.2d 250, 251-52 (10th Cir. 1988). Thus, in this action, a class-based claim
requires the same proof as a class-of-one claim: a showing that the government intentionally
treated people differently than others similarly situated without a rational basis for doing so.
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Given that Plaintiffs’ class-of-one and class-based claims are one in the same, the Federal
Defendants’ undisputed claim that Plaintiffs’ class-of-one theory fails as a matter of law applies
equally to Plaintiffs’ repackaged class-based claim for two reasons. First, Plaintiffs have not
challenged the fact that Article IV of the United States Constitution makes the United States a
proprietor of its land with plenary authority over it. Art. IV, § 3, cl. 2 (“the Property Clause”)
(“The Congress shall have Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States; and nothing in this
Constitution shall be so construed as to Prejudice any Claims of the United States, or of any
particular State.”); Kleppe v. New Mexico, 426 U.S. 529, 539 (1976) (“The power over the public
land thus entrusted to Congress is without limitations.” (citations and quotations omitted,
emphasis added)); Light v. United States, 220 U.S. 523, 536-37 (1911) (stating that “[t]he
Government has with respect to its own land the rights of an ordinary proprietor . . . .” and that
“[t]he United States can prohibit absolutely or fix the terms on which its property may be used”
(citations and quotations omitted, emphasis added)). Consequently, given the United States’
discretion as a proprietor to determine what types of activities can occur on federal land, “the
rule that people should be ‘treated alike, under like circumstances and conditions’ is not violated
when [snowboarders are] treated differently from [skiers] because treating like individuals
differently is an accepted consequence of the discretion granted.” Engquist v. Ore. Dep’t. of
Agric., 553 U.S. 591, 603 (2008) (emphasis added); see also Kan. Penn Gaming, LLC v. Collins,
656 F.3d 1210, 1217-18 (10th Cir. 2011) (stating that “class of one” plaintiffs face a substantial
burden when challenging decisions in which a government actor enjoys broad discretion).
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Thus, the United States’ proprietary discretion to determine which activities to allow on its land
precludes both class-of-one and class-based claims as a matter of law here.
Second, Plaintiffs have not challenged the fact that if they are allowed to maintain an
Equal Protection Clause challenge to any federal decision limiting or excluding an activity on
federal land, the Judicial Branch will exceed its constitutional powers and considerably diminish
those of the Legislative and Executive Branches. Because the Property Clause gives Congress
plenary power over federal land, the Supreme Court has long instructed the Judicial Branch that
determining how federal land will be administered “is not for the courts . . . That is for Congress
to determine.” Light, 220 U.S. at 537.
Congress has exercised its Property Clause authority by organizing and empowering the
Forest Service, among others, to manage federal land. Congress has imposed significant
land-use planning obligations on the Forest Service that include seeking public input before
taking action. 16 U.S.C. § 1604 (requiring the Forest Service to develop forest plans with
public participation). Congress has also provided the means whereby those adversely affected
by Forest Service land-use decisions may seek judicial review under the APA, which requires the
Judicial Branch to give substantial deference to the Forest Service’s decision. See, e.g.,
Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008) (noting
that in an APA action “[o]ur review is highly deferential” and that “[a] presumption of validity
attaches to the agency action”). Judicial review under the APA is: (1) limited to an
administrative record; (2) subject to the “arbitrary and capricious” standard (5 U.S.C. §
702(2)(A)); and (3) is governed by the Federal Rules of Appellate Procedure, and, therefore, is
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not subject to discovery or a jury trial. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560,
1580 (stating that challenges to agency action under the APA “must be processed as appeals. In
such circumstances the district court should govern itself by referring to the Federal Rules of
Appellate Procedure.” (emphasis in original)).
By bringing their class-of-one/class-based equal protection claim here, Plaintiffs, in
effect, ask this Court to ignore the plain language of the Property Clause, the Supreme Court’s
interpretation thereof, and the laws that Congress has enacted governing the Forest Service’s
land-management actions and the Judicial Branch’s review of those actions. Plaintiffs contend
that if a federal decision precludes their desired activity on federal land and allows what
Plaintiffs deem to be similarly-situated activity, then Plaintiffs should be allowed to bring a
class-of-one/class-based action in which they can obtain discovery and a jury trial to determine
whether the Forest Service’s decision is “rational” by a preponderance of the evidence without
according any deference to the Forest Service’s decision. Allowing Plaintiffs to bypass the
procedure that Congress has provided and to deny the Executive Branch agencies the substantial
deference to which they are entitled offends the Separation of Powers Doctrine. In effect,
whether characterized as a class-of-one or as class-based theory, Plaintiffs’ challenge would
“turn[] even quotidian exercises of government discretion into constitutional causes,” and would
improperly “constitute the federal courts as general-purpose second-guessers of the
reasonableness of a broad area of” land-use decisionmaking, which the Constitution vests in
Congress and which Congress has delegated to the Executive Branch. Kan. Penn., 656 F.3d at
1216 (citations and quotations omitted). Such a scenario would “subject nearly all [federal
Case 2:14-cv-00026-DB Document 38 Filed 06/27/14 Page 22 of 27
23

land-use] decisions to constitutional review in federal court and deny [federal land-management
agencies] the critical discretion they need to effectively perform their duties.” Id. at 1218
(citations and quotations omitted). Indeed, “[t]he Equal Protection Clause does not require this
displacement of managerial discretion by judicial supervision.” Engquist, 553 U.S. at 608-09.
Such a scenario is constitutionally intolerable and is a second reason why Plaintiffs’
class-of-one/class-based equal protection clause claims fail as a matter of law. Id. Therefore,
this Court should dismiss this action with prejudice.
B. Plaintiffs Have Failed to Sufficiently Allege that They Have Been Treated
Differently Than Others Who Are Similarly Situated or That Any Different
Treatment Lacks a Rational Basis.

Assuming arguendo that either a class-of-one or class-based equal protection claim
legally exists here, this Court should still dismiss this action because Plaintiffs have failed to
allege disparate treatment or that any different treatment lacks a rational basis. As stated above,
to prove either a class-of-one claim or a class-based claim, Plaintiffs must plead sufficient facts
to plausibly allege that: (1) they were treated differently from others who are “similarly situated
in every material respect”; and (2) “this difference in treatment was without rational basis, that
is, the government action was ‘irrational and abusive.’” Kan. Penn, 656 F.3d at 1216; Vasquez,
862 F.2d at 251-52. Plaintiffs’ failure to sufficiently allege both requirements is shown below.
1. Plaintiffs have failed to show that they were treated differently from others
who are similarly situated.

Plaintiffs have failed to plead sufficient facts to establish that they have been treated
differently from others who are similarly situated. Plaintiffs allege that they belong to a class
called “snowboarders” and are similarly situated to a separate class called “skiers.” Plaintiffs
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24

assert that these two distinctive classes exist because Alta improperly views “snowboarders” as
“immature, inexperienced, reckless, disrespectful and/or ‘out of control,’ among other things.”
ECF No. 2 ¶ 67. Plaintiffs contend that Alta and the Federal Defendants treat “snowboarders”
differently than “skiers” because Alta allows those that it deems to be “skiers” to use Alta’s ski
lifts but prohibits those that it deems to be “snowboarders” from using the same ski lifts. ECF
No. 2 ¶ 97. Plaintiffs then argue that there is no material difference between skis and other
equipment authorized at Alta and the prohibited snowboards. ECF No. 29 at 45-50.
Therefore, Plaintiffs ague, they have pled sufficient facts to show that snowboarders are similarly
situated to skiers but are being treated differently.
To the contrary, Plaintiffs’ complaint does not plausibly show that skiers and
snowboarders are treated differently. For example, even if “skiers” and “snowboarders” are
similarly situated classes, the complaint is devoid of any allegations stating that Alta or the
Federal Defendants denied access to the Plaintiffs or any other “snowboarder” when he/she used
skis or other approved equipment. Likewise, there is no allegation in the complaint stating that
a person that Alta deemed to be a “skier” was allowed to use a snowboard at Alta. Indeed, if a
person manifesting all of the stereotypical qualities of being a “snowboarder”—whatever those
are—shows up at Alta wearing skis, the snowboard ban would not exclude that person from
accessing Alta’s ski lifts. Similarly, if a person manifesting all the stereotypical qualities of
being a “skier”—whatever those are—shows up at Alta wearing a snowboard, that person would
be excluded from Alta’s ski lifts under the snowboard ban. Thus, instead of alleging that Alta
and the Federal Defendants treat the classes of “snowboarders” and “skiers” differently,
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25

Plaintiffs’ complaint establishes that Alta and the Federal Defendants treat both alleged “classes”
the same because members of both “classes” will not be allowed to access Alta’s ski lifts if they
use a snowboard. Plaintiffs’ failure to allege sufficient facts to establish disparate treatment
requires this action to be dismissed for failure to state a claim.
3

2. Plaintiffs cannot show that any differences in treatment are without an
objectively reasonable basis.

Assuming arguendo that the Federal Defendants treated “snowboarders” differently than
“skiers,” Plaintiffs cannot show that any purported difference in treatment was irrational,
abusive, and devoid of any objectively reasonable basis. To survive a motion to dismiss,
Plaintiffs must show, among other things, that the Federal Defendants’ purported snowboard ban
lacks any “objectively reasonable basis.” Jicarilla, 440 F.3d at 1210-11. If such basis exists,
however, Plaintiffs’ equal protection claim fails “as a matter of law.” Highland Dev., Inc. v.
Duchsene Cnty., 505 F.Supp.2d 1129, 1153 (D. Utah 2007) (“If there is evidence of a rational
government basis for the treatment, then the class-of-one claim fails as a matter of law.” (citing
Jicarilla, 440 F.3d at 1210-11)). Plaintiffs have failed to show that no rational basis exists.
In addition to the reasonable bases in the Federal Defendants’ and Alta’s respective
motions to dismiss, another objectively reasonable basis for the snowboard ban is that the Forest
Service must carry out its mandate to manage the National Forest System under a multiple-use

3
The Federal Defendants use the term “class” here for argument purposes only because, in
reality, “snowboarders,” like any other group of people wanting to engage in prohibited
conduct are not a class. See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 269
(1993) (stating that in a civil rights action under 42 U.S.C. § 1985, “[w]hatever may be the
precise meaning of ‘class’ . . . the term unquestionably connotes something more than a group of
individuals who share a desire to engage in . . .[disfavored] conduct”).
Case 2:14-cv-00026-DB Document 38 Filed 06/27/14 Page 25 of 27
26

policy that provides for a reasonable range of recreation alternatives. 16 U.S.C. § 1604(e). In
carrying out this multiple-use mandate, the Forest Service does not have to permit every
recreational activity to occur on every piece of land. New Mexico ex rel. Richardson v. Bureau
of Land Mgmt., 565 F.3d 683, 710 (10th Cir. 2009) (stating that multiple-use statute “does not
mandate that every use be accommodated on every piece of land”). Instead, to provide a range
of recreational opportunities within the lands it administers, the Forest Service has the discretion
to limit certain recreational activities to certain areas. See, e.g., Krueger, 513 F.3d at 1177
(limiting heli-skiing operation to certain areas and certain days in the National Forest in an effort
to “provide a range of recreational opportunities on the lands under [the Forest Service’s]
administration”). Indeed, if a ski area permittee sought to open a “snowboard only” resort, and
such policy could be imputed to the Federal Defendants, the Forest Service could permit that
under its authority to provide for a reasonable range of recreational opportunities. Thus,
assuming that the snowboard ban is the Federal Defendants’—which it isn’t—it is objectively
reasonable because it is a legitimate exercise of the Forest Service’s vast discretion to provide a
range of recreational opportunities. Given this objectively reasonable basis for the snowboard
ban, Plaintiffs’ equal protection claim fails as a matter of law.
CONCLUSION

For the reasons stated above and in the Federal Defendants’ Motion to Dismiss, this
Court should dismiss this action because Plaintiffs have failed to establish a waiver of sovereign
immunity and have failed to state a claim upon which relief can be granted. Therefore, this
Court should dismiss this action with prejudice.
Case 2:14-cv-00026-DB Document 38 Filed 06/27/14 Page 26 of 27
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DATED this 25th day of June 2014.
DAVID B. BARLOW
United States Attorney

/s/ Jared C. Bennett
CARLIE CHRISTENSEN
JARED C. BENNETT
Assistant United States Attorneys
Case 2:14-cv-00026-DB Document 38 Filed 06/27/14 Page 27 of 27