U.S. Forest Service response to Wasatch Equality lawsuit

8/20/2019 U.S. Forest Service response to Wasatch Equality lawsuit

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Case No. 14-4152

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WASATCH EQUALITY, et al.,

Plaintiffs/Appellants,

v.

ALTA SKI LIFTS CO.; UNITED STATES FOREST SERVICE; et al.

Defendants/Appellees.

On Appeal from the United States District CourtFor the District of Utah, Central Division

The Honorable Dee Benson, District Judge

BRIEF FOR THE FEDERAL DEFENDANTS

JOHN W. HUBERUnited States AttorneyDistrict of Utah

CARLIE CHRISTENSEN (Utah #0633)JARED C. BENNETT (Utah #9097)Assistant United States Attorney185 South State Street, Suite 300Salt Lake City, Utah 84111-1506

Telephone (801) 524-5682 [email protected]

Attorneys for the U.S. Forest Service andDavid Whittekiend

ORAL ARGUMENT IS NOT REQUESTED

Appellate Case: 14-4152 Document: 01019451203 Date Filed: 06/26/2015 Page: 1


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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... iii

STATEMENT OF PRIOR AND RELATED APPEALS ..................................................... vi

STATEMENT OF JURISDICTION ..................................................................................1

STATEMENT OF THE ISSUES .......................................................................................2

STATEMENT OF FACTS AND STATEMENT OF THE CASE ...........................................3

1. STATUTORY AND REGULATORY BACKGROUND .................... 3

2. ALTA’S SKI AREA PERMIT AND OPERATING PLAN ................. 5

3. THE LAWSUIT ....................................................................................7

SUMMARY OF THE ARGUMENT ..................................................................................9

STANDARD OF REVIEW ............................................................................................14

ARGUMENT ..............................................................................................................15

I. ALTA’S EQUIPMENT RESTRICTION ON

SNOWBOARDS IS NOT GOVERNMENT ACTION..................15

A. Wasatch Equality Fails to Satisfy the Nexus Test.....................17

B. Wasatch Equality Fails the Symbiotic Relationship Test. ........19

C. Wasatch Equality Fails the Joint Activity Test. ........................25

D. Wasatch Equality Fails to Establish the Essential

Government Function Test. .......................................................26

II. EVEN IF STATE ACTION EXISTS, WASATCH

EQUALITY’S EQUAL PROTECTION CLAIM IS

PRECLUDED AS A MATTER OF LAW BECAUSE THE

FEDERAL DEFENDANTS HAVE PROPRIETARYDISCRETION OVER NATIONAL FOREST LANDS. ................29



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A. The Proprietary Discretion of the United States Over Its

Land Precludes a Class of One Claim Here.............................33

B. Allowing Wasatch Equality’s Claim to Proceed

Improperly Intrudes Upon the Functions of the Executive

and Legislative Branches of the United States. ........................36

III. EVEN IF WASATCH EQUALITY HAS ESTABLISHED

STATE ACTION, AND A CLASS OF ONE CLAIM

EXISTS HERE, WASATCH EQUALITY HAS FAILED TO

STATE A PLAUSIBLE CLAIM FOR A VIOLATION OFTHE EQUAL PROTECTION CLAUSE. .......................................38

A. Wasatch Equality Has Failed to Show That It Was Treated

Differently from Others Who Are Similarly Situated. ...............39

B. Plaintiffs Cannot Show That Any Differences in Treatment

Are Without an Objectively Reasonable Basis. ........................41

CONCLUSION ............................................................................................................44

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

CERTIFICATION OF DIGITAL SUBMISSIONS



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TABLE OF AUTHORITIES

CASES PAGE

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) ....................................... 17

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................. 14

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................. 14

Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ............................................ 42-44

Bolling v. Sharpe, 424 U.S. 1, 94 (1976) ................................................................... 7

Blum v. Yaretsky, 457 U.S. 991 (1982) ...................................................... 16, 18-20

Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961) ................................... 20

Citizens' Comm. to Save Our Canyons v. Krueger , 513 F.3d 1169(10th Cir. 2008) ........................................................................................... 42

Colo. Envtl. Coal. v. Wenker , 353 F.3d 1221 (10th Cir. 2004) ............................. 14

Dennis v. Sparks, 449 U.S. 24 (1980) .................................................................... 25

Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008) .......................... 30-35, 37-38

Evans v. Newton, 382 U.S. 296 (1966) ............................................................ 27-28

Flagg Bros.Inc. v. Brooks, 436 U.S. 149 (1978) ....................................... 15, 25, 28

Gallagher v. Neil Young Freedom Concert , 49 F.3d 1442(10th Cir. 1995) .......................................................................... 15, 17,20-27

GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381 (10th Cir. 1997) ...... 14

Gilmore v. Montgomery, 417 U.S. 556 (1974) ...................................................... 23 Highland Dev., Inc. v. Duchesne Cnty., 505 F. Supp. 2d 1129 (D. Utah 2007) .... 41

Jackson v. Burke, 256 F.3d 93 (2d Cir. 2001) ....................................................... 30

Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) ........................... 17-18, 20, 26



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Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202(10th Cir. 2006) ............................................................................... 30, 38, 41

Kan. Penn Gaming, L.L.C. v. Collins, 656 F.3d 1210(10th Cir. 2011) ......................................................................... 31-32, 39, 41

Kleppe v. New Mexico, 426 U.S. 529 (1976) ......................................................... 33

Kuba v. Sea World, Inc., 428 F. App’x 728 (9th Cir. 2011) .................................. 27

Ledbetter v. City of Topeka, 318 F.3d 1183 (10th Cir. 2003) ................................ 14

Light v. United States, 220 U.S. 523 (1911) .............................................. 33, 35, 38

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) .............................................. 15

Magill v. Avonworth Baseball Conf., 516 F.2d 1328 (3d Cir. 1975) .................... 23

Milo v. Cushing Mun. Hosp., 861 F.2d 1194 (10th Cir. 1988) ........................ 22-23

N. Pacifica L.L.C. v. Pacifica, 526 F.3d 478 (9th Cir. 2008) ................................ 30

N.M. ex rel. Richardson v. BLM , 565 F.3d 683 (10th Cir. 2009) .......................... 41

Nat’l Coll. Athletic Ass’n v. Tarkanian, 488 U.S. 179 (1988) ............................... 27

Perkins v. Londonderry Basketball Club, 196 F.3d 13 (1st Cir. 1999) ................. 27

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) ........................................................ 20

Romer v. Evans, 517 U.S. 620 (1996) ................................................................... 43

S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522 (1987) ............ 27

Sherman v. Cmty. Consol. Sch. Dist. 21, 8 F.3d 1160 (7th Cir. 1993) .................. 23

Strickland v. Morton, 519 F.2d 467 (9th Cir. 1975) ........................................ 34, 41

Sybalski v. Indep. Group Home Living Program, Inc., 546 F.3d 255(2d Cir. 2008) ............................................................................................... 18

Teigen v. Renfrow, 511 F.3d 1072 (10th Cir. 2007) .............................................. 39

United States v. Windsor , ___ U.S. ___, 133 S. Ct. 2675 (2013) .......................... 43



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Vasquez v. Cooper , 862 F.2d 250 (10th Cir. 1988) ................................... 30, 39, 41

Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam) ......................... 30

Vincent v. Trend W. Technical Corp., 828 F.2d 563 (9th Cir. 1987) .................... 22

CONSTITUTION

U.S. Const. amends. XIV, V .................................................................................... 1

U.S. Const. art. IV .................................................................................................. 11

U.S. Const. art. IV, § 3, cl. 2 .................................................................................. 33

STATUTES

5 U.S.C. §§ 701 to 706 (2012) ................................................................................. 2

16 U.S.C. § 497b (1988) ...................................................................................... 3-4

16 U.S.C. § 497b (2012) .......................................................................................... 4

16 U.S.C. § 497b(b) (1988) ................................................................................. 3-4

16 U.S.C. § 497b(b) (2012) ..................................................................................... 4

16 U.S.C. § 1604(e) (2012) .................................................................................... 41

16 U.S.C. § 497c(b)(1) (2012) ................................................................................. 4

16 U.S.C. §§ 528 to 531 (2012) ............................................................................. 34

16 U.S.C. §§ 1600 to 1614 (2012) ......................................................................... 34

28 U.S.C. § 1291 (2012) .......................................................................................... 2

28 U.S.C. § 1331 (2012) .......................................................................................... 2

36 C.F.R. § 251.56(d) (2013) ................................................................................... 5

RULES

Fed. R. Civ. P. 12(b)(1) ........................................................................................... 11

Fed. R. Civ. P. 12(b)(6) ..................................................................................... 11, 14



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OTHER AUTHORITIES

Pub. L. No. 99-522, § 3 (1986) ................................................................................ 3

Pub. L. No. 112-10§§ 1741 to 1747 (2011) ........................................................ 5, 24

STATEMENT OF PRIOR AND RELATED APPEALS

There are no prior or related appeals.



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IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WASATCH EQUALITY; RICK ALDEN;DREW HICKEN; BJORN LEINES; &RICHARD VARGA;

Plaintiffs/Appellants,

vs.

ALTA SKI LIFTS CO., d.b.a. ALTA SKIAREA; UNITED STATES FORESTSERVICE; & DAVID WHITTEKIEND;

Defendants/Appellees.

No. 14-4152

BRIEF FOR THE UNITED STATESFOREST SERVICE AND DAVIDWHITTEKIEND

STATEMENT OF JURISDICTION

Wasatch Equality and its named members (collectively “Wasatch Equality”)

filed this action against Alta Ski Lifts Company, d.b.a. Alta Ski Area (collectively

“Alta”), the United States Forest Service (“the Forest Service”), and Forest

Supervisor David Whittekiend (collectively “the Federal Defendants”). Wasatch

Equality alleged that Alta and the Federal Defendants violated the Fourteenth and

Fifth Amendments to the United States Constitution, respectively, for not allowing

snowboards at Alta. J.A. 11-12. Wasatch Equality’s complaint alleged that the



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district court had jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. §§ 701 to 706.

J.A. 13.

On September 23, 2014, the district court granted Alta’s and the Federal

Defendants’ motions and dismissed this entire action. J.A. 403-432. The district

court dismissed this action because: (1) Alta’s restriction on snowboards was not

government action; (2) even assuming government action, a class of one equal

protection claim does not exist where, as here, the government is acting as a

proprietor over its land; and (3) even if a class of one claim existed, Alta and the

Federal Defendants had a rational basis to treat skiers differently than snowboarders.

J.A. 403-32. The Clerk’s Judgment issued the same day as the district court’s

Memorandum Decision and Order. J.A. 8.

On November 21, 2014, Wasatch Equality timely appealed. J.A. 8. Thus, this

Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

Issue No. 1: To establish a class of one equal protection claim, Wasatch

Equality must show that the alleged constitutional violation is state action. Alta does

not submit for approval and, consequently, the Forest Service does not formally

approve Alta’s restriction on snowboards. Is Alta’s restriction on snowboards state

action?



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Issue No. 2: A class of one equal protection claim fails when the challenged

government action is within the government’s proprietary discretion. The

Constitution makes the United States a proprietor over federal property with plenary

discretion over which activities can occur thereon. Assuming that Alta’s snowboard

restriction is government action, does Wasatch Equality’s class of one claim fail

because the United States is the proprietor of the land on which Alta operates?

Issue No. 3: Assuming that the snowboard ban on Alta’s lifts is government

action, did Wasatch Equality fail to establish that its members were treated

differently than others without rational basis where: (A) Alta denied everyone who

uses a snowboard access to its lifts, not just Wasatch Equality members; and (B)

Congress grants the Forest Service significant discretion to provide a reasonable

range of recreational opportunities on public land?

STATEMENT OF FACTS AND STATEMENT OF THE CASE

1. STATUTORY AND REGULATORY BACKGROUND

In 1986, Congress enacted the “National Forest Ski Area Permit Act” (“the

1986 Act”). Pub. L. No. 99-522, § 3 (1986), 100 Stat. 3000 (codified as 16 U.S.C.

§ 497b (1988)). This Act authorized the Secretary of Agriculture (“the Secretary”)

to issue ‘“ski area permits’ for the use and occupancy of suitable lands within the

National Forest System for nordic and alpine skiing operations and purposes.” 16

U.S.C. § 497b(b) (1988).



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In 2011, Congress amended the 1986 Act by enacting the “Ski Area

Recreational Opportunity Enhancement Act,” Pub. L. No. 112-46, 125 Stat. 538

(codified as 16 U.S.C. § 497b (2012)), which authorized the Secretary to issue “‘ski

area permits’ for the use and occupancy of suitable lands within the National Forest

System for skiing and other snow sports and recreational uses authorized by this

section.” 16 U.S.C. § 497b(b). Both the 1986 and 2011 Acts established the

following parameters, among others, on ski area permits:

[ski area permits] shall ordinarily be issued for a term of 40 years . . .shall encompass such acreage as the Secretary determines sufficientand appropriate to accommodate the permittee’s needs for skioperations and appropriate ancillary facilities . . . and shall be subject toa permit fee based on fair market value . . . .

Id . § 497b(b). Congress also mandated that the Secretary use a lengthy formula to

determine the ski area’s fair-market value “permit fee.” Id. § 497c(b)(1) (2012). In

addition to a fee, ski area permits also require permittees to submit an annual

operating plan by November 15 of each year. Forest Serv. Handbook 2709.14

(61.3). At a minimum, the annual operating plan must address: (1) ski patrol and

first aid; (2) communications; (3) signs; (4) general safety and sanitation; (5) erosion

control; (6) accident reporting; (7) avalanche control; (8) search and rescue; (9)

boundary management; (10) vegetation management; (11) designation of

representatives; (12) trail routes for Nordic skiing; and (13) explosive magazine

security. Id. Additionally, permittees must indemnify the United States for claims



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that it may suffer as a result of the permittees’ use or occupancy of National Forest

System land. 36 C.F.R. § 251.56(d) (2013).

2. ALTA’S SKI AREA PERMIT AND OPERATING PLAN

The Forest Service issued a 40-year ski area permit to Alta on October 25,

2002 (“the Permit”) under the 1986 Act. J.A. 67. The Permit allowed Alta to

operate on 1802.7 acres of National Forest System land. J.A. 19, 67. The Permit

also requires Alta to pay a permit fee that is calculated pursuant to the

congressionally-mandated formula.1

J.A. 72-74. Based on this formula, Alta has

paid the United States permit fees in the amounts of $473,792.00; $449,005.00;

$471,440.00; and $304,396.00 for the years 2009 through 2012 respectively. J.A.

21. Alta’s permit fee—which represents a percentage of revenue from all of its

sources of income—amounts to less than 0.1% of the Forest Service’s annual

budget. See, e.g., Pub. L. No. 112-10, §§ 1741 to 1747 (appropriating over $5 billion

to the Forest Service for fiscal year 2012). As of 2011, Alta was 1 of 120 resorts that

1 Wasatch Equality claims that Alta’s permit fees “are drastically less than marketvalue for similar but non-public land, as an annual lease of comparable property at anearby ski resort was recently valued at approximately $15 million per year.”Appellants’ Br. at 9 (emphasis in original). Other than this statement—whichWasatch Equality’s counsel made for the first time at oral argument before the

district court (J.A. 378)—there is nothing in the record about what the “marketvalue” is for permit fees on non-public land or the amount that a company paid tolease a nearby ski resort. Thus, there is little, if any, factual basis in the record forthe above-quoted statement in Appellants’ brief. Regardless, Alta’s permit fee iscalculated according to the statutorily-mandated formula, and Wasatch Equality hasnot challenged the legality of the fee.



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paid a permit fee to the Forest Service under a ski area permit. S. Rep. 112-55 at 2

(2011).

Pursuant to the Forest Service Handbook, the Permit also requires Alta to

submit an annual operating plan by November 15 of each year.2 J.A. 70. Alta

submitted its annual operating plan for the 2013-14 ski season (“the Operating

Plan”) on November 6, 2013, and the Federal Defendants approved it on December

10, 2013.3 J.A. 143.

Among the many topics covered in the Operating Plan, Alta addresses “Hill

Management.” J.A. 155. In that section, Alta states that it may “revoke a skier’s

privileges without compensation and/or call the Alta Town Marshall [sic] or the Salt

2 Wasatch Equality claims that the Permit requires “Alta and the Government todevelop a Winter Site Operation Plan . . . .” Appellants’ Br. at 9-10 (emphasis

added). This is wrong. Instead, the Permit requires “[t]he holder or designatedrepresentative [to] prepare and annually revise by November 15 an Operating Plan.”J.A. 127 (emphasis added). The Forest Service determines whether to approve theOperating Plan; it does not help “to develop” it.

3 Wasatch Equality writes that “[i]f the Plan is deemed adequate and consistent withDefendants’ ‘mutual goal[s],’ the Government may approve the revised annual plan,which shall become part of [the Permit].” Appellants’ Br. at 10 (alterations inoriginal). This sentence takes the phrase “mutual goal” out of context by making it

plural and, thus, gives the appearance that the Forest Service and the ski area

permittee agree upon an Operating Plan that meets the goals that both entities share.Actually, the sentence in which the Forest Service uses the term “mutual goal” is: “Itis our mutual goal to construct the Site Operating plan to be consistent with the 9/82direction provided for in the [Forest Service Manual] 2342 and 7320.” J.A. 143.Thus, the “mutual goal” of the Forest Service and a ski area permittee is to make theOperating Plan consistent with Forest Service policy, not to agree on whichactivities to allow at the ski resort.



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Lake County Sheriff either of whom may subject the skier to arrest for violation of

skier responsibility codes, State of Utah Codes, or any violation of the law.” J.A.

155 (emphasis added). The Operating Plan does not provide that Alta should call the

Forest Service if Alta needs support to enforce any of its policies.

Additionally, the Operating Plan provides that Alta reserves the right to

exclude those whose “skiing device” is deemed to create an “unnecessary risk,”

causes “undue damage to the quality of the snow,” and “is not consistent with

[Alta’s] business management decisions.” J.A. 155. Nothing in Alta’s Operating

Plan either states that Alta excludes snowboards or asks that the Federal Defendants

approve of the exclusion. The Federal Defendants, however, are aware that Alta

does not allow snowboards as a skiing device. J.A. 127.

3. THE LAWSUIT

On January 15, 2014, Wasatch Equality filed this action against Alta and the

Federal Defendants. Wasatch Equality’s complaint sought a declaration that Alta’s

“anti-snowboarder policy and snowboarding ban” violate both the Equal Protection

Clause of the Fourteenth Amendment as to Alta and, as to the Federal Defendants,

the Due Process Clause of the Fifth Amendment, which contains an implied equal

protection component.4 J.A. 35. Also, Wasatch Equality sought a permanent

injunction on the enforcement of Alta’s “anti-snowboarding policy and

4 “Equal protection analysis in the Fifth Amendment area is the same as that underthe Fourteenth Amendment.” Bolling v. Sharpe, 424 U.S. 1, 94 (1976).



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snowboarding ban” and an injunction compelling Alta and the Federal Defendants

“to provide snowboarders the same rights, privileges, and access given to skiers at

Alta.” J.A. 35.

Both Alta and the Federal Defendants moved to dismiss Wasatch Equality’s

complaint. The Federal Defendants moved to dismiss for three reasons. First, the

Federal Defendants argued that the district court lacked subject matter jurisdiction

for want of a waiver of sovereign immunity because Wasatch Equality could not

show that Alta’s snowboard restriction was the Federal Defendants’ action. J.A.

104-11. Second, the Federal Defendants contended that even if Alta’s snowboard

restriction was the Federal Defendants’, Wasatch Equality failed to state a claim for

relief under the Fifth Amendment because no class of one equal protection claim

exists where, as here, the government is acting as a proprietor over its land. J.A.

111-18. Finally, the Federal Defendants argued that even if a class of one claim

existed, a rational basis existed for treating skiers and snowboarders differently.

J.A. 120-21.

Alta also moved to dismiss because: (1) the district court lacked subject

matter jurisdiction for Wasatch Equality’s want of both standing and final agency

action, J.A. 41-47; (2) Alta’s snowboard restriction was not state action, J.A. 49-54;

(3) skiers and snowboarders are not similarly situated, J.A. 57-59; and, (4) in any

event, Alta had a rational basis for treating snowboarders differently than skiers.



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J.A. 59-64. Wasatch Equality responded, J.A. 159-211, and both Alta and the

Federal Defendants replied. J.A. 251-311. The district court held oral argument on

the motions to dismiss. J.A. 312-402.

The district court granted Alta’s and the Federal Defendants’ motions to

dismiss on three alternative bases. J.A. 403-432. First, the district court dismissed

this action without prejudice because Wasatch Equality failed to establish that Alta’s

snowboard restriction was state action. J.A. 408-12; 412 n.3. Second, the district

court dismissed with prejudice because a class of one Equal Protection Clause claim

does not exist where, as here, the government is acting as a proprietor over its land.

J.A. 418-23. Finally, the district court dismissed because even assuming that skiers

and snowboarders are similarly situated, the Federal Defendants and Alta had a

rational basis for treating both groups differently. J.A. 418-29. Wasatch Equality

appealed. J.A. 8.

SUMMARY OF THE ARGUMENT

I. The district court appropriately dismissed Wasatch Equality’s class of

one equal protection claim against the Federal Defendants because Wasatch

Equality failed to establish that Alta’s snowboard restriction is state action. This

Court 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. As



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shown below, Wasatch Equality fails to meet any of these tests. Therefore, Alta’s

snowboard restriction is not state action.

First, Wasatch Equality does not meet the nexus test because its complaint

fails to sufficiently allege that the Federal Defendants coerced, significantly

encouraged, or directed Alta’s decision to restrict snowboards on its lifts. Second,

Wasatch Equality fails to meet the symbiotic relationship test because its complaint

fails to demonstrate that the Federal Defendants have so far insinuated themselves

into a position of interdependence with Alta that the decision to disallow

snowboards was a joint decision between the Federal Defendants and Alta.

Third, Wasatch Equality fails to meet the joint-activity test because the

complaint fails to allege that Alta and the Federal Defendants have engaged in a

substantial degree of cooperative action to deprive Wasatch Equality of its

constitutional rights. At best, the Federal Defendants have merely acquiesced to

Alta’s snowboard policy, which is insufficient to meet the joint-activity test.

Finally, Wasatch Equality fails to meet the essential state function test

because running a ski resort is neither a traditional nor exclusive governmental

function. Thus, the district court appropriately dismissed this action against the

Federal Defendants because Wasatch Equality failed to establish state action.5

5 The Federal Defendants argued before the district court that Wasatch Equality’sfailure to establish state action meant that it could not establish a waiver of theUnited States sovereign immunity under 5 U.S.C. § 702. J.A. 104-11; 288-300.



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II. Assuming arguendo that Alta’s snowboard restriction is the action of

the Federal Defendants, the district court appropriately dismissed this case with

prejudice because the United States Supreme Court and this Court have repeatedly

recognized that a class of one equal protection claim does not exist where, as here,

the United States is acting as a proprietor in a field over which it has great discretion.

Article IV of the United States Constitution, the Supreme Court, and this

Court have long recognized that the United States is a proprietor with plenary power

over its own land. Congress’s delegation of land-management authority to the

Forest Service, which is based on the principles of multiple use, grants the Forest

Service vast discretion. Thus, as a land owner, the United States is a proprietor with

plenary discretion over which activities to allow on federal land. Consequently, no

class of one equal protection claim exists here.

To hold otherwise would improperly intrude upon the powers of the executive

and legislative branches of government. Executive-branch agencies make

thousands of decisions that allow a particular land use and exclude others on

portions of federal land. If a plaintiff, like Wasatch Equality, were to file an equal

protection claim seeking a rational-basis review each time a federal agency made

Alta contended that Wasatch Equality’s failure to establish state action failed to statean equal protection claim. J.A. 41, 49-53. The district court found that WasatchEquality failed to establish state action, but did not specify whether dismissal of theclaim was under Fed. R. Civ. P. 12(b)(1) or 12(b)(6). J.A. 408-12. Regardless ofwhether proving state action is jurisdictional, Wasatch Equality’s failure to establishit requires dismissal of this action.



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such a decision, then the judiciary would become the ultimate decider of whether

such policy choice is “rational.” This would transform federal courts into the

ultimate decisionmakers about how federal land is used. This improperly intrudes

upon the Constitution’s delegation to Congress to control federal property and the

acts of Congress delegating its power to federal executive agencies. Thus, not

recognizing the United States’ role as a proprietor over its own land intrudes upon

the powers of the executive and legislative branches. Accordingly, the district court

properly dismissed this action with prejudice.

III. Even assuming that state action and an equal protection claim exist

here, the district court appropriately dismissed this action because Wasatch

Equality’s complaint fails to plead sufficient facts to plausibly allege that: (A) its

members were treated differently than others who were “similarly situated in every

material respect”; and (B) any difference in treatment was “irrational and abusive.”

First, Wasatch Equality’s complaint fails to sufficiently show that its

members were treated differently than others who are similarly situated. Wasatch

Equality’s complaint alleges that when its members went to Alta using a snowboard,

they were not allowed to use Alta’s ski lifts. That is exactly what would happen

even if a person believing him/herself to be a skier tried to access Alta’s lifts using a

snowboard. Further, Wasatch Equality never alleges that any of its members—or

anyone else, for that matter—was denied access to Alta’s lifts when they were using



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skis. Regardless of whether a person considers him/herself to be a snowboarder or a

skier, snowboards are restricted on Alta’s lifts, but skis are allowed. Thus, dismissal

is appropriate because Wasatch Equality was not treated differently from

similarly-situated individuals.

Second, even assuming arguendo that skiers and snowboarders are similarly

situated and that the Federal Defendants treated the groups differently, Wasatch

Equality failed to show that any purported difference in treatment was devoid of any

objectively reasonable basis. Under the National Forest Management Act, the

Federal Defendants are required to manage federal lands under their jurisdiction

according to the principles of “multiple use.” In carrying out this multiple-use

mandate, the Federal Defendants do not have to permit every activity to occur on

every piece of land. Instead, the Federal Defendants have the discretion to limit

certain recreational activities to certain areas. Thus, assuming arguendo that

disallowing snowboards at Alta is the Federal Defendants’ decision, providing for a

range of recreational opportunities on National Forest land is an objectively

reasonable basis to treat skiers and snowboarders differently. Therefore, Wasatch

Equality’s equal protection claim fails, and the district court’s dismissal of this

action with prejudice should be affirmed.



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STANDARD OF REVIEW

This Court reviews de novo the grant of motions to dismiss. Colo. Envtl.

Coal. v. Wenker , 353 F.3d 1221, 1227 (10th Cir. 2004). Under Fed. R. Civ. P.

12(b)(6), “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, 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, 555 (2007). Thus, Wasatch Equality must plead enough

“factual content” to allow “the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft , 556 U.S. at 678. If the

factual allegations fail to establish a plausible claim on which Wasatch Equality

could obtain relief, then the district court properly dismissed this action. Ledbetter

v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).6

6 Wasatch Equality chides the district court for relying on documents outside of the

complaint without first converting the motions to dismiss to motions for summary judgment. Appellants’ Br. at 6. The only documents to which the district court citedthat were not attached to the complaint were the Permit and the Operating Plan. J.A.

404-05. However, the district court acted appropriately by not converting themotions to dismiss into motions for summary judgment. Where, as here, the Planand the Operating Permit are: (1) referenced in the complaint (J.A. 20-21), (2)central to Wasatch Equality’s claims, and (3) indisputably authentic, the districtcourt may consider them without converting motions to dismiss into motions forsummary judgment. GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381,1384-85 (10th Cir. 1997).



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ARGUMENT

I. ALTA’S EQUIPMENT RESTRICTION ON

SNOWBOARDS IS NOT GOVERNMENT ACTION.

Wasatch Equality has failed to establish that Alta’s equipment restriction on

snowboards is state action. To establish a civil rights claim against the Federal

Defendants for the actions of a private entity, Wasatch Equality must show that

Alta’s snowboard restriction was state action. See, e.g., Gallagher v. Neil Young

Freedom Concert , 49 F.3d 1442, 1446-47 (10th Cir. 1995).

Application of the state action doctrine has been characterized as“‘one of the more slippery and troublesome areas of civil rightslitigation.’” Other commentators have found the doctrine to be “the

paragon of unclarity,” and a “protean concept.” The Supreme Courthas acknowledged that the determination as to whether particularconduct constitutes state action “frequently admits of no easy answer.”

Id. at 1447 (citations omitted).

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.” 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



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complains” by paying “careful attention to the gravamen of the plaintiff’s

complaint.” Blum v. Yaretsky, 457 U.S. 991, 1003 (1982).

In this case, the gravamen of Wasatch Equality’s complaint is that Alta’s

snowboarding restriction violates the implied equal protection component of the

Fifth Amendment’s Due Process clause. J.A. 34. Thus, for purposes of

demonstrating state action, the specific question here is whether Alta’s decision to

disallow snowboards may fairly be attributable to the Federal Defendants.

Wasatch Equality’s complaint fails to demonstrate state action. The

complaint relies largely on the federal regulations and the Permit. For example,

Wasatch Equality alleges that Alta operates on federal land and is subject to the

Permit and the Operating Plan, which the Federal Defendants must approve. J.A.

20. From there, Wasatch Equality alleges that the Federal Defendants “exercise[]

substantial control” over Alta’s use of federal land by approving “nearly every

action” that Alta takes. J.A. 21. Wasatch Equality also relies on the fact that Alta

pays the Forest Service a fee based on the percentage of lift-ticket and ski school

operations, and that Alta’s trail map contains the Forest Service’s logo. J.A. 21, 23.

Establishing state action, however, cannot be satisfied by simply reciting the

contents of the 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,



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that is not the law. A private entity, such as Alta, does not 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.”).

Instead, to establish “state action,” plaintiffs must meet one of four tests.

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 , 49 F.3d at 1447. Of

these four tests, Wasatch Equality’s complaint relied on just two: the “symbiotic

relationship” test and the “joint activity” test. J.A. 21. In its response to the motions

to dismiss, and now on appeal, Wasatch Equality claims that it meets all four tests.

J.A. 197; Appellants’ Br. at 22. However, as shown in order below, Wasatch

Equality fails all of them.7

A. Wasatch Equality Fails to Satisfy the Nexus Test.

The allegations in Wasatch Equality’s complaint do not satisfy the nexus test

because they fail to allege that the Forest Service coerced or otherwise significantly

encouraged or directed Alta’s decision to disallow snowboards. Under the nexus

7 Wasatch Equality incorrectly asserts that the Federal Defendants conceded thatthey were state actors before the district court. Appellants’ Br. at 20-21. WasatchEquality’s citation to the record in support of that statement, J.A. 110, proves theopposite.



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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 disallow snowboards.

Wasatch Equality has not adequately alleged that the Forest Service coerced

or otherwise encouraged or directed Alta’s decision to disallow snowboards.

Neither the applicable regulations, the Permit, nor the Operating Plan dictate the



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decision to disallow snowboards on National Forest land. In fact, Wasatch Equality

acknowledges that the Forest Service does not have an anti-snowboarding policy

and that snowboards are not “explicitly or officially prohibited.” J.A. 196-97, 2

(recognizing that there are 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).

Moreover, if Alta needs law enforcement assistance to enforce its policies, it calls

local law enforcement, not the Forest Service. J.A. 155. At best, the complaint’s

allegations demonstrate the Forest Service’s mere acquiescence in Alta’s decision,

which is insufficient to satisfy the nexus test. Blum, 457 U.S. at 104-05. Thus, there

is no reasonable basis to infer that the Forest Service coerced or otherwise

encouraged or directed Alta’s decision to prohibit snowboards at Alta. Accordingly,

Wasatch Equality cannot rely on the nexus test to establish state action. J.A. 412.

B. Wasatch Equality Fails the Symbiotic Relationship Test.

Wasatch Equality fails the symbiotic relationship test because it cannot show

that the Federal Defendants are so far insinuated in Alta’s affairs that the decision to

disallow snowboards at Alta is really the Federal Defendants’. 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



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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 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. Id.

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 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, 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 (finding 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).

This Court has likewise followed the Supreme Court’s lead in narrowly

reading Burton. For example, in Gallagher v. Neil Young Freedom Concert , the



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plaintiffs were ticket holders for a rock concert being held at the University of Utah

and were subjected to pat down searches by a private security company prior to

being admitted into the concert. 49 F.3d at 1444-45. Plaintiffs filed suit against the

University of Utah and the concert promoter alleging that the pat down searches

constituted an illegal search under the United States Constitution because the

security company’s pat down searches were really “state action,” since the

University, the promoter, and the security company were in a “symbiotic

relationship.” Id. at 1446. The plaintiffs claimed that such a relationship existed

because: (1) the searches occurred at the University’s property; (2) the University

received rent based on the concert’s gross ticket sales; and (3) University police

officers stood nearby watching the pat down searches. Id. at 1445, 1452-53.

This Court rejected all three of plaintiffs’ arguments and held that no

symbiotic relationship existed. First, this Court held that “[t]he fact that certain

conduct occurs on public property does not establish state action.” Id. at 1452.

Rather, the plaintiffs must show something more than the mere use of a public

building to demonstrate significant intertwining between the promoter and the

University. Id. at 1452.

Second, this Court found that mere financial benefit is not enough to establish

a symbiotic relationship. Instead, a plaintiff must show that “the allegedly

unconstitutional conduct generated profits that were indispensable elements in the



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University’s financial success. . . .” Id. at 1453 (emphasis added). To further

illustrate this point, this Court cited to Vincent v. Trend Western Technical Corp.,

828 F.2d 563 (9th Cir. 1987), which declined to find state action by the United States

Air Force based on a contractor’s alleged civil rights violations. The Vincent court

found that although the contractor “may have been dependent economically on its

contract with the Air Force,” the contract in question “was most certainly not an

indispensable element in the Air Force’s financial success.” Gallagher , 49 F.3d at

1453 (quoting Vincent , 828 F.2d at 569). Thus, the proceeds generated from the

concert were insufficient to create a symbiotic relationship.

Third, this Court determined that although the University knew in advance of

the searches and placed its officers nearby to observe the searches that the private

security company was conducting on concert goers, there was insufficient

entanglement between the University and the searches to create a symbiotic

relationship. Id. at 1445 (stating that the University was aware of the pat down

searches “approximately two weeks before” the concert), 1453. In support of this

holding, this Court cited to Milo v. Cushing Municipal Hospital, 861 F.2d 1194,

1196 (10th Cir. 1988), wherein this Court found a symbiotic relationship between a

municipally owned hospital and a private corporation 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



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the hospital trust consisted of three city commissioners and two officials from the

private corporation. Gallagher , 49 F.3d at 1452 (citing Milo, 861 F.2d at 1196). In

Gallagher , no such intertwining existed between the University, the concert

promoter, or the private security company. Accordingly, the Gallagher court found

that the promoter did not have a symbiotic relationship with the University and,

therefore, no state action occurred. Gallagher , 49 F.3d at 1453.

Despite Wasatch Equality’s attempt to distinguish Gallagher , Appellants’ Br.

at 30, Wasatch Equality cannot escape its reasoning. Indeed, the same three reasons

on which this Court found no symbiotic relationship in Gallagher apply here.

First, the fact that the Forest Service has authorized Alta’s operation of a ski

resort on National Forest lands does not establish an insinuation of the Forest

Service into Alta’s business activities. Id. 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).

Second, Alta’s decision to disallow snowboards has not generated profits that

are an indispensable element in the Forest Service’s financial success. See

Gallagher , 49 F.3d at 1452. Alta’s permit fees constitute less than 0.1% of the



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Forest Service’s annual budget. Compare J.A. 21 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 with the inclusion of the all other uses

for which the Forest Service collects fees, including livestock grazing, timber

harvesting, mineral and energy production, and the revenue from the other 100 plus

ski areas that also pay permit fees. Therefore, because Alta’s payments to the Forest

Service are “most certainly not an indispensable element in the [Forest Service’s]

financial success . . . . the element of indispensability is clearly lacking.” Gallagher ,

49 F.3d at 1453 (citations and quotations omitted).

Finally, the Forest Service and Alta are not functionally intertwined. Wasatch

Equality has not alleged that: (1) Forest Service employees sit on Alta’s managing

board, (2) Alta’s management executives oversee any aspect of the Forest Service’s

operations, or (3) Alta and the Forest Service have a governing interest in each

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 disallow snowboards, there is no symbiotic relationship between

the Federal Defendants and Alta. Thus, the district court correctly held that Wasatch

Equality failed to establish the symbiotic relationship test and, consequently, state

action. J.A. 411-12.



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C. Wasatch Equality Fails the Joint Activity Test.

Wasatch Equality fails 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 on 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.” Gallagher , 49 F.3d 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.

Wasatch Equality cannot establish a common goal between the Federal

Defendants and Alta to allegedly violate snowboarders’ purported constitutional

rights. The Operating Plan does not mention snowboarding and does not seek Forest

Service approval to exclude snowboards from Alta’s lifts. J.A. 143-58. In fact, if

Alta were to lift its restriction on snowboards, it would not need the Federal

Defendants’ approval.



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Further, Wasatch Equality agrees that the Forest Service does not have a

general anti-snowboarding policy. As Wasatch Equality points out, there are several

ski areas on National Forest land in Utah, throughout the United States, and even

adjacent to Alta where snowboarding is permitted. J.A. 11. The Forest Service

issues permits to over 100 ski resorts in 13 states and, apparently, only Alta

precludes snowboarding. S. Rep. 112-55 at 2 (2011); J.A. 11. Moreover, if Alta

needs law enforcement assistance to help enforce its restriction on snowboards, it

does not contact the Federal Defendants; it calls local law enforcement. J.A. 155.

Thus, the Federal Defendants and Alta have not overtly acted in concert to preclude

snowboarding at Alta, and the Federal Defendants do not assist in enforcing Alta’s

equipment restriction. Thus, Wasatch Equality fails to establish the joint action test

and, consequently, state action.

D. Wasatch Equality Fails to Establish the Essential

Government Function Test.

Wasatch Equality’s assertion of the essential government function test

likewise fails 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. Such powers are those “traditionally associated with sovereignty.” Jackson,

419 U.S. at 353. The public-function test is difficult to satisfy because although



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many functions may be traditionally governmental, few are “exclusively”

governmental functions, as the test requires. Gallagher , 49 F.3d at 1456.

By illustration, 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. App’x 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).

In an attempt to get around this well-established law, Wasatch Equality claims

that the traditional and exclusive government function at issue here is the

management of the National Forest. Appellants’ Br. at 34-35. Wasatch Equality

cites no support for its claim other than Evans v. Newton, 382 U.S. 296 (1966),



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which is inapposite. 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. 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.

However, the Court has subsequently limited Evans. In Flagg Bros., Inc., the

Supreme Court 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.” Id. 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.



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Whereas in Evans the city actually operated and maintained the park, here, the

Forest Service does not operate Alta. It was this “tradition of municipal control” in

Evans that led the Supreme Court to properly find state action. Here, however, Alta

is a private for-profit corporation that operates and maintains the ski resort, not the

Forest Service, and thus, bears 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, Wasatch Equality has failed to establish “state action,” which

requires dismissal of this action.

II. EVEN IF STATE ACTION EXISTS, WASATCH

EQUALITY’S EQUAL PROTECTION CLAIM IS

PRECLUDED AS A MATTER OF LAW BECAUSE THE

FEDERAL DEFENDANTS HAVE PROPRIETARY

DISCRETION OVER NATIONAL FOREST LANDS.

Even if Wasatch Equality can establish that Alta’s equipment restriction is

really the Federal Defendants’, this Court should affirm dismissal of this action with

prejudice. Wasatch Equality’s Fifth Amendment claim against the Federal

Defendants is not based on alleged discrimination against a protected class or a

fundamental right. Instead, Plaintiffs allege that the Federal Defendants have an

animus against snowboarders that has no rational basis. J.A. 11, 23, 24-30. Where,

as here, “the plaintiff alleges that [they have] been intentionally treated differently

from others similarly situated and that there is no rational basis for the difference in



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treatment,” the Supreme Court calls such claims a “class of one” equal protection

claim. 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.*. Because Wasatch Equality claims that its members have been

denied the opportunity to snowboard at Alta without a rational basis, J.A. 12,

Wasatch Equality attempts to plead a class of one claim.8

The Supreme Court has held that a “class of one” claim is not legally

cognizable where, as here, the law affords the government special leeway when

operating as a “proprietor” instead of as a “regulator.” Engquist v. Ore. Dep’t. of

Agric., 553 U.S. 591, 598 (2008); see also Kan. Penn Gaming, LLC v. Collins, 656

8 Wasatch Equality contends that its claim is not a class of one claim, but atraditional “class-based claim.” Appellants’ Br. at 36 n.6. However, this argumentis mere form over substance. To establish a class of one equal protection claim,Wasatch Equality must show that its members have “been intentionally treateddifferently from others similarly situated and that there is no rational basis for thedifference in treatment.” Olech, 528 U.S. at 564. To establish a class-based equal

protection claim that is not based on race, gender, or other protected class, WasatchEquality must show that its members are “member[s] of a class that was denied a

benefit available to other similarly situated individuals, and that such denial is notrationally 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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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). By illustration, in Engquist , the plaintiff was a disgruntled

government employee who claimed to have suffered discrimination when the

government denied her a promotion and terminated her employment “for arbitrary,

vindictive, or malicious reasons.” Engquist , 553 U.S. at 595. The Court held that

“the core concern of the Equal Protection Clause as a shield against arbitrary

classifications, combined with unique considerations applicable when the

government acts as employer as opposed to sovereign, lead us to conclude that the

class of one theory of equal protection does not apply in the public employment

context.” Id. at 598.

The Court reasoned that it has “long held the view that there is a crucial

difference, with respect to constitutional analysis, between the government

exercising ‘the power to regulate or license, as lawmaker,’” and the government

acting “as proprietor, to manage [its] internal operation.” Id. When the government

acts as a “proprietor,” it “has far broader powers than does the government as

sovereign.” Id. In this “proprietor” role, the government must engage in

“discretionary decisionmaking based on a vast array of subjective, individualized

assessments.” Id. at 603. Given the need for discretion when acting as a proprietor,

“the rule that people should be ‘treated alike, under like circumstances and



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conditions’ is not violated when one person is treated differently from others

because treating like individuals differently is an accepted consequence of the

discretion granted.” Id. (emphasis added). Given the proprietary discretion the

government has in such contexts, a “class of one” is not legally cognizable.

Further, the Court highlighted the “common-sense realization that

government offices could not function if every employment decision became a

constitutional matter. . . .” Id. at 607 (quotations and citations omitted). This is

because “ratifying a class of one theory of equal protection in the context of public

employment would impermissibly ‘constitutionalize the employee grievance,’”

which would inappropriately invest federal courts with power that the Constitution

never intended. Id. at 609. Such a scenario is an affront to the tripartite system of

government that the Constitution provides. Thus, in cases where the government

exercises proprietary discretion, class of one claims must fail.

The Court’s reasoning in Engquist applies with equal force in the context of

deciding which activities to allow on federal public lands because: (1) the

Constitution makes the United States a proprietor of its own lands with plenary

discretion to determine the activities that may occur thereon; and (2) concerns about

the intrusion on the powers of other government branches are greater here than in

Engquist . Each reason is addressed below.



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A. The Proprietary Discretion of the United States Over Its

Land Precludes a Class of One Claim Here.

Wasatch Equality cannot bring a class of one claim here because, similar to an

employment context, the United States is acting as a proprietor. Under the

Constitution, “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.” Art. IV, § 3, cl. 2 (“the Property Clause”). The Property Clause “is

a grant of power to the United States of control of its property.” Light v. United

States, 220 U.S. 523, 536-37 (1911) (citations and quotations omitted). Because the

United States controls its own property, “[t]he Government has with respect to its

own land the rights of an ordinary proprietor . . . . It may deal with such lands

precisely as an ordinary individual may deal with his farming property.” Id. at 536

(emphasis added). Consequently, under the Constitution, “[t]he United States can

prohibit absolutely or fix the terms on which its property may be used,” id ., which

means that “[t]he power over the public land thus entrusted to Congress is without

limitations.” Kleppe v. New Mexico, 426 U.S. 529, 539 (1976) (citations and

quotations omitted, emphasis added).

As a “proprietor” whose power to decide which activities can occur on its

property is “without limitations,” the United States engages in “discretionary

decisionmaking based on a vast array of subjective, individualized assessments” as

to what uses are permitted on its land. Engquist , 553 U.S. at 603. Congress



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expressly recognized this fact in the National Forest Management Act, 16 U.S.C. §§

1600 to 1614, and in the Multiple Use and Sustained Yield Act, 16 U.S.C. §§ 528 to

531, where it mandated that the Forest Service manage its lands under the principles

of “multiple use.” Courts have long recognized that the multiple-use principle

“breathes discretion at every pore.” Strickland v. Morton, 519 F.2d 467, 469 (9th

Cir. 1975).

Empowered with this broad power and discretion on how to use it, the United

States makes individualized assessments regarding which lands it should make

available for mineral leasing, which lands should be free from roads or motorized

use, and on which lands to allow hunting and fishing, among other things. Not only

does the United States make individualized assessments about the general types of

activities that may occur on federal land, but the United States also decides to allow

or exclude certain activities within specific areas of land. For example, the United

States may decide to allow fishing within a wildlife refuge, but it may choose to limit

particular waters within that refuge only to fly fishing, which necessarily excludes

other types of fishing. See, e.g., http://www.fws.gov/nwrs/threecolumn.

aspx?id=2147516841 (limiting certain waters in the National Elk Refuge to fly

fishing). Given that the United States’ limitless discretion to determine what types

of activities can occur on its own land, “the rule that people should be ‘treated alike,

under like circumstances and conditions’ is not violated when [snowboarders are]



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treated differently from [skiers] because treating like individuals differently is an

accepted consequence of the discretion granted.” Engquist , 553 U.S. at 603

(emphasis added).

Nevertheless, Wasatch Equality contends that the Forest Service is not acting

as a proprietor but as a regulator. Appellants’ Br. at 37-40. However, this argument

is illogical. If, as Wasatch Equality alleges, the Federal Defendants took action and

made the decision to ban snowboarding on the federal land on which Alta operates,

then the Forest Service is deciding which activity to allow or prohibit on its land. By

definition, deciding which uses to allow on its land makes the Forest Service a

proprietor, not a regulator of Alta. See, e.g., Light , 220 U.S. at 536-37 (“The United

States can prohibit absolutely or fix the terms on which its property may be used.”).

Further, recognizing that the United States is a proprietor over federal land

with power to determine which activities to allow on its land will not undo one

hundred and fifty years of civil rights gains, as Wasatch Equality fears. Appellants’

Br. at 38-39. Unlike the race-based cases that Wasatch Equality cites, disallowing

snowboards from an area of federal land is not based on a person’s inherent

characteristics, but solely on the activity he/she is engaged in. For example,

Wasatch Equality has alleged that when its members used snowboards at Alta, they

were not allowed to use the lifts. J.A. 30-31. Wasatch Equality has neither alleged

that patrons were denied access to Alta when they used skis on account that Alta



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perceived them to be “snowboarders,” nor that patrons that Alta perceived to be

“skiers” were allowed to use snowboards. Indeed, Wasatch Equality’s complaint

shows that the equipment used and the activity engaged in on federal land is the

reason for denying access thereto, not an inherent quality of the person seeking to

access the land. Thus, assuming that the equipment restriction on snowboards is of

the Federal Defendants’ making, it clearly falls into the United States’ role as a

proprietor. This proprietary discretion precludes a class of one claim here. Thus, as

in Engquist , Wasatch Equality’s class of one claim fails.

B. Allowing Wasatch Equality’s Claim to Proceed

Improperly Intrudes Upon the Functions of the Executive

and Legislative Branches of the United States.

To a greater extent than in Engquist , recognizing a class of one claim here will

improperly intrude upon the powers of the executive and legislative branches. For

example, the executive-branch agencies make thousands of decisions about which

uses and activities are allowed or are not allowed on the United States’ vast land

holdings. If courts were to recognize a class of one challenge in the context of land

use, then every person whose desired use of federal land was precluded from any

portion of thereof could raise an equal protection claim under the Fifth Amendment

seeking a rational-basis review of each decision.

By illustration, if a federal agency allowed mountain bikes on a trail across

public lands but prohibited four-wheel all-terrain vehicles (“ATV”), then four-wheel



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ATV enthusiasts would be able to file a class of one claim asserting that animus

against ATVs is the source of the determination. The United States would then be

forced to engage in litigation for this and any other land use decision it has made that

arguably limits or entirely excludes a particular use or activity on any portion of

federal property. Like the Supreme Court in Engquist , this Court should be “guided

. . . by the common sense realization that government [land management] offices

could not function if every [land use] decision became a constitutional matter.”

Engquist , 553 U.S. at 607. Indeed, if Plaintiffs’ class of one theory were to apply

here, then the federal judiciary would become the ultimate authority as to what

activities the United States should allow on its land instead of Congress and the

agencies to which Congress has delegated its authority. Not only would such a

result ignore the plain language of the Property Clause (i.e., “Congress shall have

power . . .”), but it would also ignore the Supreme Court’s long-standing prohibition

on the federal judiciary from making such decisions. In Light v. United States, the

Court stated:

All the public lands of the nation are held in trust for the peopleof the whole country. And it is not for the courts to say how that trustshall be administered. That is for Congress to determine. The courts

cannot compel it to set aside the lands for settlement, or to suffer themto be used for agricultural or grazing purposes, nor interfere when, inthe exercise of its discretion, Congress establishes a forest reserve forwhat it decides to be national and public purposes. . . . These are rightsincident to proprietorship, to say nothing of the power of the UnitedStates as a sovereign over the property belonging to it.



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220 U.S. at 537 (internal citations and quotations omitted).

In effect, recognizing a class of one claim here would “turn[] even quotidian

exercises of government discretion into constitutional causes.” Jicarilla, 440 F.3d at

1209 (citations and quotations omitted). This creates the problem of “governments

[being] forced to defend a multitude of such claims in the first place, and courts

[being] obliged to sort through them in a search for the proverbial needle in a

haystack.” Engquist , 553 U.S. at 608. Such a scenario would do exactly what this

Court cautioned against by “transform[ing] the federal courts into ‘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 above-referenced

constitutional principles. Jicarilla, 440 F.3d at 1209 (citations and quotations

omitted). Given the proprietary discretion that the United States enjoys over its own

lands under the Property Clause, and to avoid improperly intruding upon the powers

of the other branches of the federal government, this Court should follow Engquist

and affirm the district court’s dismissal of this action with prejudice.

III. EVEN IF WASATCH EQUALITY HAS ESTABLISHED

STATE ACTION, AND A CLASS OF ONE CLAIM

EXISTS HERE, WASATCH EQUALITY HAS FAILED TO

STATE A PLAUSIBLE CLAIM FOR A VIOLATION OFTHE EQUAL PROTECTION CLAUSE.

Assuming arguendo that state action and an equal protection claim legally

exist here, this Court should still affirm dismissal of this action because Wasatch



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Equality has failed to adequately allege different treatment or that any different

treatment lacks a rational basis. This Court presumes that a rational basis underlies

the government action. Teigen v. Renfrow, 511 F.3d 1072, 1083 (10th Cir. 2007).

“To survive a motion to dismiss for failure to state a claim, a plaintiff must allege

facts sufficient to overcome the presumption of rationality that applies to

government classifications.” Id. (quotations and citations omitted). In fact, “[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.” Id. (quotations and

citations omitted). To prove either a class of one claim or a class-based claim,

Wasatch Equality must plead sufficient facts to plausibly allege that: (1) its members

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. Wasatch Equality’s failure to sufficiently allege both

requirements is shown below.

A. Wasatch Equality Has Failed to Show That It Was Treated

Differently from Others Who Are Similarly Situated.

Wasatch Equality has failed to plead sufficient facts to establish that it has

been treated differently from others who are similarly situated. Wasatch Equality

alleges that it belongs to a class called “snowboarders,” which Wasatch Equality

believes is similarly situated to a separate class they call “skiers.” It asserts that



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these two distinctive classes exist because Alta improperly views skiers as desirable

but views “snowboarders” as “immature, inexperienced, reckless, disrespectful

and/or ‘out of control,’ among other things.” J.A. 23. Wasatch Equality contends

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. J.A.

31. Plaintiffs then argue that there is no material difference between skis and other

equipment authorized at Alta and the prohibited snowboards. Appellants’ Br. at

43-44. Therefore, Wasatch Equality argues, it has pled sufficient facts to show that

snowboarders are similarly situated to skiers but are being treated differently.

To the contrary, Wasatch Equality’s complaint does not plausibly show that

skiers and snowboarders are treated differently. For example, the complaint does

not allege that Alta’s snowboard policy will prevent a person who Alta deems to be a

“snowboarder” from using Alta’s ski lifts if he/she uses skis. Similarly, the

complaint does not allege that Alta allows those whom it deems to be “skiers” to use

a snowboard. Thus, instead of alleging that Alta and the Federal Defendants treat

the classes of “snowboarders” and “skiers” differently, Wasatch Equality’s

complaint establishes that Alta and the Federal Defendants treat both alleged classes

the same: members of both “classes” may use Alta’s ski lifts with approved devices

such as skis but neither class may use snowboards. There is no different treatment

Appellate Case: 14-4152 Documen

Documents

U.S. Forest Service response to Wasatch Equality lawsuit