Wasatch Equality Reply Brief

8/20/2019 Wasatch Equality Reply Brief

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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 UnitedStates 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

[email protected]

[email protected]

[email protected]

Attorneys for Plaintiffs/Appellants

Appellate Case: 14-4152 Document: 01019468336 Date Filed: 07/30/2015 Page: 1


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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 Government’s

“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 purportedrational 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 Dep’t 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) ...................... 8Tilton 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. Dep’t 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) ................................................. 17Vill. 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 Government’s

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 State’s

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) Alta’s purportedly private actions constitute

state action due to Alta’s 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 Alta’s creation and

enforcement of the [B]an.” [Alta Br. 25.] However, this misstates the symbiotic-

relationship test, which does not myopically focus on Alta’s 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 state’s 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 Ass’n, 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 Alta’s 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 Alta’s 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 shop’s profits were

indispensable to operating the single parking garage. Burton, 365 U.S. at 723-24.

Here, Alta’s 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

1 Alta “importantly” notes Burton’s 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 entity’s 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 school’s 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 hospital’s

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 Alta’s 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 Government’s citations features the same

governmental control and involvement found here, where a long-term arrangement

3 See Gilmore v. City of Montgomery, 417 U.S. 556, 574 (1974) (declining to find

state action where racially segregated private group merely used publicrecreational 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, 1334–35 (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 Alta’s 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 Government’s

“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

4 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 lodger’s

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 Metropolitan’s 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

5 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 Permit’s 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 state’s 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

Government’s authorization. In fact, Alta would cease to exist but for the

Government’s 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 Dep’t 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 Government’s class-of-one argument might make sense in the

context of challenging a permit denial. In such a case, Engquist ’s logic might be

applicable because determining whether to issue or deny a permit could be

construed as analogous to determining who to hire or fire—a 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 Alta’s public land to use

certain types of equipment6 based not on a subjective, individualized determination

but rather on whether his or her equipment meets Alta’s unique definition of

“skis,” including essentially any type of downhill skiing device that is not a

6 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 owners—a requirement struck down by the U.S. Supreme Court. Village

of Willowbrook v. Olech, 528 U.S. 562, 565 (2000). Willowbrook was also a land-

use 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 Government’s

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

7 Cf. Flowers v. City of Minneapolis, 558 F.3d 794, 799–800 (8th Cir. 2009)

(extending Engquist to police officer’s 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, Alta’s distinction is irrelevant. Moreover, the

Equal Protection Clause protects classes created by the voluntary choices of its

members. See, e.g., U.S. Dep’t 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

Alta’s 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 snowboard ers, as a group believed to include certain

types of people. [JA 24, 25 (Alta’s 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 don’t have snowboarders”).] And to argue that snowboard ers

are not within the zone of interests of the Equal Protection Clause is essentially

arguing that snowboard ers 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

8 Alta argues that this case falls outside of the Equal Protection Clause’s 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 beenchallenged on cross-appeal. [JA 417-18.] But even if it were, Alta’s zone-of-

interests 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 Alta’s 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, Alta’s 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

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 Women’s 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 Alta’s 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 community’s 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 purportedrational 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

itself—which never went into effect —these cases are inapposite.” City ofCuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 195 (2003).

However, the Ban has been in effect for years at Alta—unlike 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 Romer’s 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 mid-

1980s but have been excluded from Alta as a result of “stereotypes, prejudices,

animus, and irrational fears held by Alta’s 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 Court’s 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. SchofieldJonathan R. Schofield

Michael S. AndersonRachel 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

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 with .

Date: July 30, 2015





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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 court’s CM/ECF system which will send notification of such filing tothe 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.




Wasatch Equality Reply Brief

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