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Appellate Case: 14-4152

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IN THE UNITED STATES COURT OF APPEALS


FOR THE TENTH CIRCUIT
WASATCH EQUALITY, a Utah
Nonprofit Corporation; RICK ALDEN,
an individual; DREW HICKEN, an
individual; BJORN LEINES, an
individual; and RICHARD VARGA,
an individual,
Plaintiffs/Appellants,
v.
ALTA SKI LIFTS COMPANY, a Utah
Corporation d/b/a ALTA SKI AREA;
THE UNITED STATES FOREST
SERVICE, an agency of the United
States Department of Agriculture; and
DAVID WHITTEKIEND, in his
official capacity as Forest Service
Supervisor in the Wasatch-Cache
National Forest,
Defendants/Appellees.

Appeal No. 14-4152

(ORAL ARGUMENT REQUESTED)

On Appeal from
The United States District Court for the District of Utah
(Civil No. 2:14-cv-00026 - Judge Dee Benson)
APPELLANTS REPLY BRIEF

Jonathan R. Schofield (UT 8274)


Michael S. Anderson (UT 13976)
Rachel L. Wertheimer (UT 13893)
PARR BROWN GEE & LOVELESS
101 South 200 East, Suite 700
Salt Lake City, UT 84111
Telephone: (801) 532-7840
jschofield@parrbrown.com
manderson@parrbrown.com
rwertheimer@parrbrown.com
Attorneys for Plaintiffs/Appellants

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TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 3
A.

Plaintiffs Sufficiently Alleged State Action ...................................................... 3


1.

The symbiotic-relationship test is satisfied by the extensive


entanglement between Alta and the Government ................................. 4

2.

The nexus and joint-action tests are satisfied by the Governments


direct involvement in the challenged conduct ................................... 9

B.

Plaintiffs Claim Is Not Barred by the Property Clause ............................... 12

C.

Plaintiffs Sufficiently Alleged the Bank Lacks a Rational Basis ................... 17


1.

Snowboarders are an identifiable and cognizable class .................. 17

2.

The Ban treats snowboarders differently than other similarly


situated individuals without a rational basis to justify
discrimination ...................................................................................... 22

3.

Plaintiffs allegations of animus require review of the purported


rational bases asserted by Defendants ................................................. 23

CONCLUSION ........................................................................................................ 27

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TABLE OF AUTHORITIES
CASES
Archuleta v. Wagner, 523 F.3d 1278 (10th Cir.2008) ...............................................3
Aulson v. Blanchard, 83 F.3d 1 (1st Cir. 1996) .......................................................21
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ....................................................26
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993) .......................... 21
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288 (2001) ...... 5
Brokers' Choice of Am., Inc. v. NBC Universal, Inc.,
757 F.3d 1125 (10th Cir. 2014) ..................................................................... 12
Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) ............................ 4-6
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).................... 1, 23-25
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188 (2003) ......25
Corey Airport Servs., Inc. v. Clear Channel Outdoor, Inc.,
682 F.3d 1293 (11th Cir. 2012) .............................................................. 19, 20
Davis v. Richmond, 512 F.2d 201 (1st Cir. 1975) ..................................................... 9
Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269 (11th Cir. 2008)....................... 15
Engquist v. Oregon Dept of Agric., 553 U.S. 591 (2008) ............................ 3, 13-15
Flowers v. City of Minneapolis, 558 F.3d 794 (8th Cir. 2009) ...............................15
Flying J. Inc. v. City of New Haven, 549 F.3d 538 (7th Cir. 2008) .................. 23, 24
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442 (10th Cir. 1995).............4
Gilmore v. City of Montgomery, 417 U.S. 556 (1974) .............................................. 8
Griffin v. Breckenridge, 403 U.S. 88 (1971) ........................................................... 21
Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) ...........................................4, 10
Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214 (5th Cir. 1987) .........7, 8
Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th Cir. 1981) ...................................20
Magill v. Avonworth Baseball Conf., 516 F.2d 1328 (3d Cir. 1975) ........................ 8
Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004) ............................................. 12
Milo v. Cushing Mun. Hosp., 861 F.2d 1194 (10th Cir. 1988) .................... 5, 7-8, 12
Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982) ...........................................7, 10
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Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) ............................................... 11
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) .......................................................26
Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004) ..................................................24
Sherman v. Cmty. Consol. Sch. Dist. 21, 8 F.3d 1160 (7th Cir. 1993) ...................... 8
Tilton v. Richardson 6 F.3d 683 (10th Cir. 1993) ..................................................21
United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825 (1983) ......................21
U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973) ................... 1, 2, 17-18, 20, 22
United States v. Essley, 284 F.2d 518 (10th Cir. 1960) .....................................14, 15
United States v. Moore, 543 F.3d 891 (7th Cir. 2008) ............................................ 15
United States v. Windsor, 133 S. Ct. 2675 (2013) ...................................................24
Vasquez v. Cooper, 862 F.2d 250 (10th Cir. 1988) ................................................. 17
Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000) ................................................14
Wittner v. Banner Health, 720 F.3d 770 (10th Cir. 2013) ......................................... 5
STATUTES
16 U.S.C. 479 ........................................................................................................ 15
42 U.S.C. 1985 ................................................................................................20, 21

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Plaintiffs and Appellants, Wasatch Equality, Rick Alden, Drew Hicken,


Bjorn Leines, and Richard Varga (collectively, Plaintiffs or Appellants), by
and through their undersigned counsel, respectfully submit Appellants Reply
Brief, replying to both the Response Brief of Appellee Alta Ski Lifts Company
(Alta Brief) filed by Alta Ski Lifts Company (Alta) and the Brief for the
Federal Defendants (Government Brief) filed by the United States Forest Service
(USFS) and David Whittekiend (USFS Supervisor) (hereinafter, USFS and
USFS Supervisor referred to collectively as the Government and collectively
with Alta as Defendants).
INTRODUCTION
Rather than address Plaintiffs claims directly, Defendants construct and
attack a series of self-serving straw men. Perhaps foremost among them,
Defendants continue to argue that Plaintiffs are asserting a constitutional right to
snowboard, which Plaintiffs have never claimed. Worse, Defendants distortion
obscures the real issue. The Supreme Court in Moreno did not frame the claim as a
constitutional right to food stamps while living with unrelated persons. Nor did
the Cleburne Court describe the claim as a constitutional right to operate a group
home. In those and countless other cases, the claim was simply the constitutional
right to be treated like all other similarly situated individuals unless the state has a
rational basis to discriminate. This case is no different.

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Defendants also argue their anti-snowboarder policy and snowboarding ban


(Ban) is a mere equipment policy, claiming that Plaintiffs are welcome at Alta
if they wear skis. This argument is misguided. Plaintiffs alleged the Ban is
intended to target certain types of people deemed undesirable at Alta, whom the
pretextual equipment policy is designed to exclude. Regardless, the Equal
Protection Clause protects a class created through its members voluntary choices.
The Moreno plaintiffs chose to live with unrelated individuals but were still
entitled to the same governmental treatment as other individuals who lived with
relatives. Similarly, Plaintiffs claim in this case is for equal treatment.
Based on a litany of other fallacies, Defendants also speculate that this case
will open the floodgates to future litigation challenging governmental land-use
decisions. Not so. This is a unique case involving a specific group of people
denied access to public land that Congress has already designated for skiing and
other snow sports. And all of the 119 other ski resorts operating on public land
have determined that this includes snowboarding. Here, Defendants efforts to
keep certain types of people from using public land at Alta denies a substantial
percentage of the skiing population access freely given to other similar individuals
without rationally furthering any legitimate state interest.
While Defendants arguments may have persuaded the District Court to
dismiss their claim erroneously, Plaintiffs case has merit and should not have been

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dismissed. At a minimum, Plaintiffs sufficiently alleged facts supporting a


plausible Equal Protection claim under the applicable standard of review, which
requires the Court to view all allegations in the light most favorable to Plaintiffs
and to draw all reasonable inferences in their favor and against dismissal.
ARGUMENT
This reply addresses the three primary issues on appeal: (1) Plaintiffs alleged
facts plausibly supporting state action; (2) the Property Clause does not preclude
Plaintiffs claim for access when the Government has already permitted Alta for
use by skiers and snowboarders; and (3) there is no rational basis for Defendants
discriminatory conduct. Keeping these three inquiries analytically distinct is
critical, despite Defendants attempt to blur the state-action and rational-basis
inquiries and extend Engquist far beyond its original context.
A. Plaintiffs Sufficiently Alleged State Action.
Defendants treat this appeal as if their underlying motion was one for
summary judgment. Discovery is yet to prove the full scope of the Governments
involvement in the challenged conduct. At this motion-to-dismiss stage, the
appropriate standard requires only a plausible inference that state action could exist
if Plaintiffs allegations are presumed true and all reasonable inferences are
construed in their favor. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir.
2008). State action requires a fact-intensive inquiry dependent upon the

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circumstances of each case. Gallagher v. Neil Young Freedom Concert, 49 F.3d


1442, 1448 (10th Cir. 1995). For all their reliance on Jackson, Defendants
selective quotations seemingly overlook that [t]he true nature of the States
involvement may not be immediately obvious, and detailed inquiry may be
required in order to determine whether the test is met. Jackson v. Metro. Edison
Co., 419 U.S. 345, 351 (1974) (citing Burton v. Wilmington Parking Authority, 365
U.S. 715, 723 (1961)).
Here, Plaintiffs allegations support finding a plausible inference of state
action on at least two grounds: (1) Altas purportedly private actions constitute
state action due to Altas entangled relationship with the Government, featuring
extensive oversight and control by the Government under the Permit and Plan; and
(2) the Government endorses, approves, authorizes, and allows the Ban and fails to
enforce the otherwise non-discriminatory Permit and Plan, constituting state action
subject to Equal Protection challenge. Such conduct satisfied each of the four tests
employed by this Court.
1. The symbiotic-relationship test is satisfied by the extensive
entanglement between Alta and the Government.
Alta asserts that the state action inquiry must focus on Altas creation and
enforcement of the [B]an. [Alta Br. 25.] However, this misstates the symbioticrelationship test, which does not myopically focus on Altas creation and
enforcement of the Ban but instead properly considers the broader entanglement of
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Alta and the Government. By misreading the test, Defendants fail to distinguish
both Burton and Milo and rely on other inapposite cases.
The symbiotic relationship or entwinement analysis starts by asking
whether and to what extent the states relationship with the private actor goes
beyond the mere private [conduct]. Wittner v. Banner Health, 720 F.3d 770, 778
(10th Cir. 2013) (quotations omitted) (quoting Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Assn, 531 U.S. 288, 299 (2001)). [A] public-private
relationship can transcend that of mere client and contractor if the private and
public actors have sufficiently commingled their responsibilities. Id.
Plaintiffs set forth a mass of factual allegations detailing the commingled
responsibilities of Alta and the Government. However, Defendants argue state
action is lacking because Plaintiffs did not allege Altas profits are indispensable to
the USFS. [Alta Br. 38-39; Gov. Br. 23-24.] This is mistaken for at least two
reasons. First, Defendants fail to recognize that no one fact can function as a
necessary condition across the board for finding state action[.] Wittner, 720 F.3d
at 779 (quoting Brentwood, 531 U.S. at 295). Indispensability of profits is not a
prerequisite for state action but merely one of many potential factors to consider.
Second, Defendants argument incorrectly frames the indispensability inquiry,

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which actually supports application of Burton v. Wilmington Parking Auth., 365


U.S. 715 (1961) to this case when properly considered.1
Artificially framing indispensability to distinguish Burton, Defendants
argument is based on their assertion that Altas profits are not indispensable to the
entire USFS. [Alta Br. 39; Gov. Br. 23.] But in Burton, the profits from a single
coffee shop were not indispensable to the entire Wilmington government nor the
entire Parking Authority operation. Instead, the single coffee shops profits were
indispensable to operating the single parking garage. Burton, 365 U.S. at 723-24.
Here, Altas profits are indispensable to the ski-resort operations at the top of Little
Cottonwood Canyon or, even more broadly, likely are indispensable to managing
the Wasatch-Cache National Forest. [JA 376.] Defendants have never contended
otherwise.2
Moreover, the Tenth Circuit has not read Burton as requiring, in all cases,
that the profits obtained from a relationship with a private party be indispensable to

Alta importantly notes Burtons claim was subject to strict scrutiny. [Alta Br.
38.] However, the level of scrutiny applicable under the Equal Protection Clause is
wholly irrelevant to the analytically distinct state-action inquiry.
2

The Government states that Plaintiffs have not challenged the legality of the fee
paid by Alta. [Gov. Br. 5.] This misses the point. Plaintiffs never suggested the
fee paid by Alta is not in accordance with the formula or is not legal. Plaintiffs
instead contend the fee is part of the entanglement between Defendants and is
acting as a subsidy because it allows Alta to operate for far less than nearby private
resorts leasing comparable private land from private owners.
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the public entitys operations. In Milonas v. Williams, 691 F.2d 931 (10th Cir.
1982) for example, this Court followed Burton and found state action where certain
state officials were aware of, and approved of, challenged practices by private
individuals operating private schools receiving significant state funding and
subject to extensive state regulation. Id. at 940. Whether the profits generated by
the schools operation by private entities were indispensable to any governmental
entity was never mentioned. Id.; see also Milo v. Cushing Mun. Hosp., 861 F.2d
1194, 1197 (1988) (state action found irrespective of indispensability of hospitals
profits to the city).
Defendants also cannot distinguish Milo, which actually compels finding
state action here. The Government attempts to distinguish Milo by contending the
Government does not sit on Altas board nor does Alta oversee the USFS. [Gov.
Br. 24.] This misreads Milo. The state-actor analysis in Milo did not focus on the
Cushing Hospital Authority, whose board included both city commissioners and
private individuals, but instead on the purportedly private Masonic Hospital
Association, who contracted with the Authority. Milo, 861 F.2d at 1197 (The
Authority did not actually operate the hospital . . . [but rather] contracted with the
Association, which is a private entity, to run the facility.). Citing Jatoi, which
involved operations managed by a private lessee not sitting on the board of the
public lessor, the Milo Court held that the Association was a state actor. Id. (citing

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Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214 (5th Cir. 1987)). Here,
the Government manages the public land pursuant to congressional directive to use
it for a ski resort and delegated certain responsibilities to Alta. Under Milo, the
Government cannot escape liability for unconstitutional discrimination by
delegating responsibility to another party. Id.
The Government also contends that courts have recognized that the mere
provision of a recreational venue . . . does not give rise to state action. [Gov. Br.
23 (emphasis added).] This alone distinguishes the cases cited by the Government
because each involved the mere provision of a venue to a private group without
more entwinement with the state.3 Each dealt with a purely private organization
whose only connection to the state was the use of generalized governmental
services purely as a member of the public and not as a manager. Gilmore, 417
U.S. at 574. Not one of the Governments citations features the same
governmental control and involvement found here, where a long-term arrangement

See Gilmore v. City of Montgomery, 417 U.S. 556, 574 (1974) (declining to find
state action where racially segregated private group merely used public
recreational facilities on same terms as other users); Sherman v. Cmty. Consol. Sch.
Dist. 21, 8 F.3d 1160, 1167 (7th Cir. 1993) (declining to find state action where
Boy Scouts of America merely used public school facilities on same terms as other
users); Magill v. Avonworth Baseball Conf., 516 F.2d 1328, 133435 (3d Cir.
1975) (declining to find state action where gender-segregated baseball conference
merely used public baseball facilities on same terms as other users).
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and extensive Government oversight of Altas management and operations is


prevalent.
Plaintiffs alleged numerous responsibilities shared between Alta and the
Government, far beyond those of typical arms-length, contractor-contractee
relationships. [JA 20-22, 243-50.] The Government directly controls numerous
decisions at Alta that cannot now be considered purely private action, especially
those knowingly approved annually under the Plan and excluding the public from
public lands.
2. The nexus and joint-action tests are satisfied by the Governments
direct involvement in the challenged conduct.
Despite being mischaracterized by Defendants, Plaintiffs adequately alleged
facts supporting a plausible inference of state action under the joint-action and
nexus tests.4 Defendants downplay the relevance of their obligation to prepare the
Plan in consultation with each other. [Gov. Br. 6 n.2.] However, the continual
review and approval of the Plan distinguishes all of the cases cited by Defendants
involving only passive regulatory legislation. For example, Alta relies on Davis
v. Richmond, 512 F.2d 201, 204 (1st Cir. 1975), where a private innkeeper used a

Alta ignores Plaintiffs discussion of the nexus test, instead quoting passages in
Plaintiffs brief relating to symbiotic relationship and arguing Plaintiffs have not
plausibly alleged facts satisfying the nexus text. [Compare Alta Br. 35 (arguing
Plaintiffs cannot meet the nexus test), with Plaintiffs Br. 32 (discussing facts
supporting the nexus test).] Plaintiffs do not further discuss the public function test
herein because their opening brief adequately addressed the issue.
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state statute to obtain a court order to take and maintain possession of a lodgers
property. [Alta Br. 31.] Unlike in this case, the Davis defendants had no
knowledge of how that particular innkeeper would operate under a statute nor did
they collaborate on a plan with the innkeeper each year knowing the innkeeper
was performing certain conduct. Here, the Government approves the Plan every
year with specific knowledge of the Ban, as Alta prepares it in consultation with
the Government.5
Defendants principally rely on Jackson v. Metropolitan Edison Co., 419 U.S.
345 (1974) for the premise that regulation alone is insufficient to find state action.
[Alta Br. 32.] Jackson held that regulation, without more, is insufficient for state
action because the claimants failed to allege the state had knowledge of the
challenged practice. Jackson, 419 U.S. at 355 ([T]he sole connection of the
Commission with this regulation was Metropolitans simple notice filing with the
Commission and the lack of any Commission action to prohibit it.). The
regulatory legislation in Jackson is blind to the actual actions of those regulated,
and it seems unfair to attribute conduct to the state when the state is unaware of it.
But here, there was much more than a simple notice filing that the Government

The Government suggests it plays no part in developing the Plan. [Gov. Br. 6.]
Yet, in addition to the Plan being signed and approved annually by the
Government, the Permits plain language requires Alta and the Government to
work together in creating the Plan. [JA 193 (the Plan shall be prepared in
consultation with the [USFS Supervisor] (emphasis added)).]
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failed to prohibit. Here, the Government admits it knows about the challenged
conduct and adopted the Plan knowing the challenged practice is certain to occur.
Plaintiffs have not relied on the mere existence of a regulatory scheme, [Alta Br.
33.], but instead alleged direct participation by the Government through its annual
participation in and approval of the Plan.
Relying on Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972), Defendants
argue that finding state action in this case would utterly emasculate the
distinction between public and private conduct. [Alta Br. 33.] But Moose Lodge
dealt with a private business on private land, whose only connection to the state
was a state-issued liquor license. Moose Lodge, 407 U.S. at 175. The state
otherwise had no connection to the private club or, in particular, its decision to
discriminate on the basis of race. Id. Nor was any other connection alleged.
Unlike in Moose Lodge, the Government openly admits it knows that Alta will
enforce the Ban but continues to approve the plan each year. Moreover, Plaintiffs
have alleged far more coordination between Alta and the Government pursuant to
the requirement to prepare the Plan in consultation with each other.
Alta relies on yet another case decided on summary judgment, Marcus v.
McCollum, 394 F.3d 813 (10th Cir. 2004), to support its contention that the
Government was and is not directly involved in the Ban. [Alta Br. 32.] However,
Marcus specifically recognized that the states involvement may be either overt or

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covert and that [t]his area of the law is particularly fact-sensitive, so the
circumstances must be examined in their totality. Marcus, 394 F.3d at 819
(quotations omitted). Marcus also confirmed that the overarching lesson of the
case law is that state action is present if the Government aid[s] [Alta] in such a
way that the [Ban] would not have occurred but for their assistance. Id.
(emphasis added). Alta is powerless to implement and enforce the Ban without the
Governments authorization. In fact, Alta would cease to exist but for the
Governments annual approval of the Plan.
If the Government consults with Alta on the Plan and approves it knowing
specific conduct is certain to occur, then that conduct must constitute state action.
To hold otherwise would overturn decades of state-action jurisprudence and allow
the government to circumvent constitutional provisions simply by outsourcing its
desired unconstitutional conduct. Cf. Brokers Choice of Am., Inc. v. NBC
Universal, Inc., 757 F.3d 1125, 1144 (10th Cir. 2014) (A governmental agent may
not avoid constitutional restraints upon his conduct by procuring a private
individual to perform a forbidden act for him.); Milo, 861 F.2d at 1197 (The
defendants cannot escape liability by delegating responsibility to another party.).
B. Plaintiffs Claim Is Not Barred by the Property Clause.
Defendants urge this Court to extend Engquist and hold that the Property
Clause of the U.S. Constitution is a complete bar to Plaintiffs claim. [Alta Br. 48

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(citing Engquist v. Oregon Dept of Agr., 553 U.S. 591 (2008)); Gov. Br. 30
(same).] No court has extended Engquist as far as the District Court did here by
foreclosing class-of-one claims for all land-use decisions. [JA 422.] Defendants
reliance on Engquist fails for two reasons: (1) there is no subjective,
individualized determination here but rather an identifiable standard; and (2) the
Government does not act as a proprietor managing internal operations when
overseeing management of and public access to public land.
First, the Governments class-of-one argument might make sense in the
context of challenging a permit denial. In such a case, Engquists logic might be
applicable because determining whether to issue or deny a permit could be
construed as analogous to determining who to hire or firea subjective,
individualized determination without clear standards guiding its discretion. Cf.
Engquist, 553 U.S. at 603. No such individualized determination occurs here.
Defendants compel anyone seeking access to Altas public land to use
certain types of equipment6 based not on a subjective, individualized determination
but rather on whether his or her equipment meets Altas unique definition of
skis, including essentially any type of downhill skiing device that is not a

Plaintiffs do not concede that the Ban distinguishes between devices, not
persons. [Alta Br. 18.] As further discussed in Part C, infra, Defendants cannot
use an equipment policy as a proxy to exclude the types of people deemed
undesirable and believed to use snowboards.
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snowboard. A rational basis could support barring equipment not substantially


similar, such as snowmobiles or inner tubes precluding others from concurrently
using skiing equipment on the same terrain. However, denying access to an
individual with a snowboard unless he or she changes to other equipment Alta
considers skis is like denying property owners access to a municipal water
supply unless they provide an easement larger than those required from other
property ownersa requirement struck down by the U.S. Supreme Court. Village
of Willowbrook v. Olech, 528 U.S. 562, 565 (2000). Willowbrook was also a landuse decision, and Defendants cite no authority suggesting the Equal Protection
Clause varies in scope when applied to federal land-use decisions rather than state
or local decisions. In all cases, different treatment must rationally further a
legitimate governmental interest, which does not exist here.
Second, the Government is not acting not as a proprietor of a business
managing its internal operations, such as by hiring employees or choosing a menu,
but instead controlling access to public land, approving a Plan affecting the general
public, and then authorizing the Ban targeted at certain types of people undesirable
at Alta. When dealing with public access to public land, the Government brings
its sovereign power to bear on citizens at large. Engquist, 553 U.S. at 599.
Frankly, [t]here is no merit to the proposition asserted by the defendant that the
United States, in leasing its public domain, acts in a proprietary capacity. United

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States v. Essley, 284 F.2d 518, 521 (10th Cir. 1960) (emphasis added). It has
frequently been stated that the United States, in performing the functions which are
reserved to it in the Constitution, acts only in a governmental capacity. Id.
(emphasis added) (holding, in executing an oil and gas lease to a portion of its
public domain, [the United States] is performing a governmental function, not a
proprietary function). None of Defendants cases citing Engquist extend to
situations where sovereign power bears on citizens generally. [Alta Br. 50.]7
Defendants attempt to manufacture a parade of horribles is unavailing. As
the Government recognized, Congress already designated the public land at issue
for skiing and other snow sports and recreational uses authorized by [16 U.S.C.
479b(b)]. [Gov. Br. 4.] Here, Plaintiffs are not challenging the Governments
discretion to permit its lands for these uses. Rather, Plaintiffs challenge the
improper exclusion of a certain group of people from using public land in a manner
already authorized by Congress.
Where this public land remains open for public use, Equal Protection
jurisprudence sufficiently prevents challengers from flooding the courts or
becoming all-purpose second guessers. [But see Gov. Br. 38.] The speculative

Cf. Flowers v. City of Minneapolis, 558 F.3d 794, 799800 (8th Cir. 2009)
(extending Engquist to police officers decision regarding whom and how to
investigate); Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th Cir.
2008) (extending Engquist to contractor decisions); United States v. Moore, 543
F.3d 891, 901 (7th Cir. 2008) (extending Engquist to prosecutorial discretion).
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hypotheticals offered by Defendants are easily answered by recognizing that the


activities are not substantially similar and that, even if substantially similar, a
rational basis justifies any difference in treatment. For instance, where a trail is
dedicated for use only by horses but not motorcycles, or pedestrians but not
bicycles, those uses are so different and likely competing that the activities are not
substantially similar and a rational basis could readily be ascertained for a
differential treatment. However, if there were 120 trails in the United States, and if
119 allowed both motorcycles and ATVs, then there would be reason to consider
whether the activities were substantially similar for purposes of the single holdout
trail. Even then, there may be a rational reason to only allow, for instance,
motorcycles but not ATVs. Similarly, fly fishing and bait fishing affect the fish
and environment differently, and there may be rational reasons for treating the two
differently in certain circumstances. But if bait fishing is prohibited because of
irrational prejudice against people who use bait hooks, such a policy should receive
scrutiny.
In sum, because the Defendants coordination affects the public generally,
there is nothing subjective or individualized about the treatment of equipment
under the Ban, despite its intent to keep certain types of people away from Alta.
An Equal Protection claim must be recognized under such circumstances, so
people are not subjected to irrational and arbitrary treatment by state officials

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without accruing class-of-one claims. It was error for the District Court to
conclude that a class-of-one claim is not cognizable in the context of land-use
decisions.
C. Plaintiffs Sufficiently Alleged the Ban Lacks a Rational Basis.
Despite Defendants efforts to pigeonhole this case in the class-of-one
framework, Plaintiffs allegations also satisfy a class-based Equal Protection
framework. Under either theory, Plaintiffs sufficiently alleged that the Ban lacks a
rational basis and resulted from animus towards people thought to use snowboards.
1. Snowboarders are an identifiable and cognizable class.
Plaintiffs alleged 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,
252 (10th Cir. 1988). Alta seeks to distinguish between snowboarders as people
who identify with a specific culture versus people who choose to use a snowboard.
[Alta Br. 44-48.] But, because both consist of people identified by membership or
participation in a group or activity, Altas distinction is irrelevant. Moreover, the
Equal Protection Clause protects classes created by the voluntary choices of its
members. See, e.g., U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 537-38 (1973)
(striking down legislation targeting a class of hippies). Because their choice
was irrelevant, the Moreno plaintiffs were entitled to their constitutional right to be

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treated the same as other similarly situated individuals. Plaintiffs seek the same
treatment.
Defendants argue they have not violated the Equal Protection Clause
because anyone who wears skis is treated the same. [See, e.g., Alta Br. 20
(Anyone can ski at Alta.); Gov. Br. 40 ([M]embers of both classes may use
Altas ski lifts with . . . skis, but neither class may use snowboards.).] This misses
the point. Defendants created these categories by defining skis as essentially any
skiing equipment not literally a snowboard, such as monoskis, wide powder skis,
teleboards, skiboards, and others allowed at Alta. Thus, someone wearing skis at
Alta is a skier, while anyone using a snowboard, the only device specifically
excluded by the Ban, is a snowboarder. Similarly, when individuals joined a
hippie commune in Moreno, they became members of the class of hippies.
Moreno, 413 U.S. at 537 ([T]he Congressional intent of the new regulations are
specifically aimed at the hippies and hippie communes.). The hippies could
have left the class to avoid discrimination simply by relocating, but they were not
required to adjust their conduct to comply with an irrational rule. Instead, the
Court held a purpose to discriminate against hippies cannot, in and of itself and
without reference to some independent considerations in the public interest, justify
the [policy]. Id. at 534-35 (quotation and original alteration marks omitted).

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Defendants ignore Plaintiffs allegations that the motivation for the Ban was
a desire to deprive access to snowboarders, as a group believed to include certain
types of people. [JA 24, 25 (Altas General Manager instituted the Ban stating no
more snow boarders and later that anyone who uses the words rip, tear, or shed
will never be welcome at Alta), 26 (an Alta owner stated the reason we ski at
Alta is because they dont have snowboarders).] And to argue that snowboarders
are not within the zone of interests of the Equal Protection Clause is essentially
arguing that snowboarders are not persons.8 In sum, the question in this case, as it
was in Moreno, is not whether Defendants have unequally applied the Ban but
whether the Ban creates an arbitrary category of snowboarders for different
treatment without rationally furthering a legitimate governmental interest.
In arguing that snowboarders are not a cognizable class, Alta also relies on
Corey Airport Servs., Inc. v. Clear Channel Outdoor, Inc., 682 F.3d 1293, 1296
(11th Cir. 2012). [Alta Br. 42-43.] In Corey Airport, however, the claimant
attempt[ed] to identify itself as a member of a group of bidders who were not

Alta argues that this case falls outside of the Equal Protection Clauses zone of
interests. [Alta Br. 17-23.] This argument is not before the court because the
District Court, agreeing with Plaintiffs, rejected this argument, which has not been
challenged on cross-appeal. [JA 417-18.] But even if it were, Altas zone-ofinterests argument warrants little discussion. Alta insists it makes no distinctions
between people, only things. [Alta Br. 18.] But a classification of people
identified by equipment, activities, membership, living arrangements, or otherwise
is still a classification subject to challenge by anyone targeted by the classification
and denied equal treatment to similarly situated individuals.
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politically connected but was rejected because [n]o objective criteria plainly fix
whether a person or entity is an insider or an outsider. Corey Airport, 682
F.3d at 1297-98 (distinguishing insiders and outsiders based virtually on
friendship with government officials as subjective criteria).
Unlike in Corey Airport, the distinction in this case is based on observable
characteristics. The Ban exists because snowboarders are an identifiable group
labeled by Defendants based on the decision to use snowboards, just as hippies
were labeled in Moreno based on a decision to join hippie communes.
Defendants can easily ascertain snowboarders, as was confirmed when Plaintiffs
were denied access to Altas lifts. [JA 30-31.] Even Corey Airport noted that
longer-term voluntary group affiliations satisfy objective criteria. Corey
Airport, 682 F.3d at 1298.
The remaining cases cited by Alta to support its argument that snowboarders
cannot constitute a class are inapplicable because those cases were considering
Section 1985(3) conspiracy claims, not the broadly applicable Equal Protection
Clause. Cf. 42 U.S.C. 1985(3). The class-based animus required [as part of a
1985(3) claim] . . . is not identical with the class-based distinctions required to
support an action under the equal protection clause. Kimble v. D. J. McDuffy,
Inc., 648 F.2d 340, 354 n.9 (5th Cir. 1981). Enacted under the Thirteenth
Amendment to protect right to be free of involuntary servitude and the right to

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travel by reaching even purely private conspiracies to deprive individuals of equal


protection of the law, Section 1985(3) applies only to conspiracies motivated by
some racial, or perhaps otherwise class-based, invidiously discriminatory animus.
Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (quotations omitted)
(quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).
Notably, the other class-based animus language of this requirement [of
Section 1985(3)] has been narrowly construed and does not, for example, reach
conspiracies motivated by an economic or commercial bias. Id. (emphasis
added). In fact, the Supreme Court has held that it is a close question whether
1985(3) was intended to reach any class-based animus other than animus against
Negroes and those who championed their cause. Id. (quotations omitted). Aside
from all of the other applicable distinctions raised separately above, Altas attempt
to import an analysis from cases decided under the far narrower Section 1985(3) is
irrelevant to this case because Plaintiffs claim does not arise under that statute.9

Cf. Aulson v. Blanchard, 83 F.3d 1, 4 (1st Cir. 1996) (opponents of political old
guard not a class under 1985(3)); Bray v. Alexandria Womens Health Clinic,
506 U.S. 263, 269 (1993) (women seeking abortions not a class under 1985(3));
United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 837 (1983) (group
defined by economic criteria not a class for purposes of 1985(3)).
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2. The Ban treats snowboarders differently than other similarly situated


individuals without a rational basis to justify discrimination.
Defendants attack the sufficiency of the pleadings by claiming Plaintiffs
have only put forth an unsupported allegation that the Ban lacks a rational basis.
[Alta Br. 54; Gov. Br. 38-39.] However, Defendants urge the same error here as
accepted by the District Court by quoting Plaintiffs pleadings out of context,
overlooking Plaintiffs specific factual allegations, and failing to recognize
Plaintiffs allegations countering each and every purported rational basis
supposedly justifying the Ban.
The District Court refused to accept Plaintiffs factual allegations as true and
concluded that a rational basis supported the Ban, despite a host of contrary
allegations. [See Plaintiff Br. 42-44 (discussing specific allegations refuting any
claimed rational basis, as opposed to merely alleging the Ban was irrational
without further support).] Defendants also argue Plaintiffs attempt to diminish
their burden by insisting on application of the appropriate standard of review for a
motions to dismiss. This standard exists for a good reason, however, as Plaintiffs
cannot offer evidence currently in Defendants possession proving their allegations
until it has been produced pursuant to a discovery request.
Alta also seeks to justify the Ban because some of Altas guests may
believe there is a blind spot implicating safety. [Alta Br. 57 n.15.] Yet, action
taken to appease unsupported, irrational concerns by community members does not
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constitute a legitimate state interest and certainly cannot immunize the decision
from constitutional scrutiny. City of Cleburne, Tex. v. Cleburne Living Ctr., 473
U.S. 432, 448 (1985). It is not rational to cater to a communitys irrational fears.
Meanwhile, the Government contends there is a rational basis in achieving
multiple use. [Gov. Br. 41.] But prohibiting snowboarding is not rationally related
to offering skiing opportunities, as shown by the fact that skiers and snowboarders
are welcome at all 119 other government-permitted ski resorts on public land.10
3. Plaintiffs allegations of animus require review of the purported
rational bases asserted by Defendants.
Defendants claim animus only comes into play when there is no
conceivable rational basis. [See, e.g., Alta Br. 60.] If that were the standard,
however, animus would be wholly irrelevant because a law without a conceivable
rational basis must be struck down anyway. Allegations of animus must instead be
considered at the outset through a more searching form of scrutiny.
Relying on an out-of-circuit case and dicta, Alta contends controlling
precedent dictates its desired result. [Id. 58.] Alta plucks language from the
Seventh Circuit discussing animus in a context different than Plaintiffs allegations
here. See Flying J Inc. v. City of New Haven, 549 F.3d 538 (7th Cir. 2008). In
Flying J, the Seventh Circuit noted its requirement that animus is an essential

10

Defendants other arguments were addressed in Plaintiffs opening brief.


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element of a class-of-one claim but did not consider whether allegations of animus
trigger a heightened scrutiny in class-based claims, as alleged here. Id. at 546-47.
Alta also characterizes Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004) as
controlling precedent, [Alta Br. 58.], but the language quoted is expressly noted
as dicta. Specifically, Powers did not hold that Cleburne and Moreno applied only
traditional rational basis but instead stated that we need not decide how Cleburne
alters, if at all, traditional rational-basis review. Powers, 379 F.3d at 1224.
Moreover, the U.S. Supreme Court continues to apply animus doctrines by
assessing whether a law [was] motived by an improper animus or purpose.
United States v. Windsor, 133 S. Ct. 2675, 2693 (2013).
Alta next argues animus is irrelevant because snowboarders are not
historically unpopular. [Alta Br. 60 n.16.] First, political unpopularity may be a
factor but is not a requirement under an animus analysis. Although the Supreme
Court forbids a bare desire to harm a politically unpopular group, it also bars
animus directed at groups that are not politically unpopular. Cleburne, 473 U.S.
at 445 (declining to apply heightened scrutiny to mentally disabled persons
because, in part, that group was not politically powerless, but still striking down
the action because it was motivated by animus of community members).
Regardless, Plaintiffs alleged that snowboarders are unpopular among decision
makers and customers at Alta, making snowboarders powerless to change the Ban

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without legal action. [JA 24.] Defendants desire to harm them cannot support the
Ban.
Alta blurs the state-action and animus inquiries by suggesting that the
animus must be attributable to the state actor.11 [Alta Br. 61.] However, as Alta
notes, Cleburne featured animus in the form of irrational fears held by neighboring
property owners. See 473 U.S. at 448 (noting the council was concerned with the
negative attitude of the majority of property owners located nearby and with the
fears of elderly residents of the neighborhood). The Cleburne Court held that
mere negative attitudes, or fear, unsubstantiated by factors which are properly
cognizable in a zoning proceeding, are not permissible bases for treating a home
for the mentally retarded differently from apartment houses, multiple dwellings,
and the like. Id. In other words, the [state] may not avoid the strictures of [the
Equal Protection Clause] by deferring to the wishes or objections of some fraction
of the body politic. Id. If state officials were allowed to cater to the irrational

11

Defendants attempt to redirect the Court back to the state-action inquiry during
their Equal Protection analysis is improper. The case cited by Alta for this
proposition specifically noted that Cleburne was not on point because respondents
claim injury from the referendum petitioning process and not from the referendum
itselfwhich never went into effectthese cases are inapposite. City of
Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 195 (2003).
However, the Ban has been in effect for years at Altaunlike the referendum that
never went into effect in Cuyahoga Falls. A referendum enacted based on animus
violates the Equal Protection Clause. Cleburne, 473 U.S. at 448 (It is plain that
the electorate as a whole, whether by referendum or otherwise, could not order city
action violative of the Equal Protection Clause.).
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fears of their constituents, the rational-basis requirement would be eviscerated


because state officials could simply act as a conduit for community prejudices.
Defendants similarly fail to recognize the applicability of Judge Holmes
concurrence in Bishop, arguing that Judge Holmes recognized that animus was
inapplicable in that case. [Alta Br. 66-67; Gov. Br. 42-43.] The reason the animus
doctrine was inapplicable in Bishop is not present in this case because the
Oklahoma law at issue in Bishop did not remove a previously existing right
(marriage) from same-sex couples, as did Proposition 8, which the Ninth Circuit
determined failed constitutional scrutiny under Romers analysis. See Bishop v.
Smith, 760 F.3d 1070, 1106-07 (10th Cir. 2014) (Holmes, J., concurring) (citing
Perry v. Brown, 671 F.3d 1052, 1081 (9th Cir. 2012)). As explained in the
Complaint, Plaintiffs were among the first people to snowboard at Alta in the mid1980s but have been excluded from Alta as a result of stereotypes, prejudices,
animus, and irrational fears held by Altas ownership, management, and
customers towards the type of people believed to use a snowboard. [JA 33.]
Snowboarders were previously allowed to engage in an activity now taken away by
the Ban, unlike in Bishop which did not involve the removal of a previously
existing right.

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CONCLUSION
Nothing in the briefs filed by Defendants refutes that the District Court
committed reversible error. For the reasons stated herein, as well as in Appellants
Opening Brief, Plaintiffs therefore respectfully request that this Court: (1) reverse
the District Courts Order by ruling that, under a motion-to-dismiss standard,
Plaintiffs allegations (a) satisfy state action, (b) are not barred by the Property
Clause, and (c) state an Equal Protection claim; and (2) remand the case with
instructions that Plaintiffs be allowed to conduct discovery and to prove their case.

DATED this 30th day of July 2015.


PARR BROWN GEE & LOVELESS

/s/ Jonathan R. Schofield


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

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CERTIFICATE OF DIGITAL SUBMISSION


I hereby certify that with respect to the foregoing:

(1)

all required privacy redactions have been made per 10th Cir. R. 25.5;

(2)

if required to file additional hard copies, that the ECF submission is


an exact copy of those documents;

(3)

the digital submissions have been scanned for viruses with the most
recent version of a commercial virus scanning program, Symantec
Endpoint Protection, Version 12.1.5337.5000, last updated on July 30,
2015, and according to the program are free of viruses.

/s/ Jonathan R. Schofield


Jonathan R. Schofield

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CERTIFICATE OF COMPLIANCE WITH RULE 32(A)


Certificate of Compliance With Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements

1.

This brief complies with the type-volume limitation of Fed. R. App. P.


32(a)(7)(B) because:
[X]

this brief contains 6,384 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

[ ] this brief uses a monospaced typeface and contains <state the number of>
lines of text, excluding the parts of the brief exempted by Fed. R. App.
P. 32(a)(7)(B)(iii).
2.

This brief complies with the typeface requirements of Fed. R. App. P.


32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
[X]

this brief has been prepared in a proportionally spaced typeface using


Word 2013 in Times New Roman, Font Size 14, or

[]

this brief has been prepared in a monospaced typeface using <state


name and version of word processing program> with <state number of
characters per inch and name of type style>.

Date: July 30, 2015

/s/ Jonathan R. Schofield


Jonathan R. Schofield

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CERTIFICATE OF SERVICE OF
APPELLANTS REPLY BRIEF
I hereby certify that on July 30, 2015 I electronically filed the foregoing
using the courts CM/ECF system which will send notification of such filing to
the following:
Frederick Roger Thaler, Jr.,
Robert O. Rice
Calvin R. Winder
Ray Quinney & Nebeker
36 South State Street, Suite 1400
Salt Lake City, Utah 84111
Carlie Christensen
Jared C. Bennett
Office of the United States
Attorney District of Utah
185 South State Street, Suite 300
Salt Lake City, Utah 84111
Dated this 30th day of July, 2015.

/s/ Jonathan R. Schofield


Jonathan R. Schofield

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