Alta Response To Wasatch Equality Utah

Appellate Case: 14-4152
Document: 01019450454
Date Filed: 06/25/2015
Page: 1
No. 14-4152
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 VARGAS, an individual,
Plaintiffs - Appellants,
v.
ALTA SKI LIFTS COMPANY, a Utah corporation, dba Alta Ski Area; 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 from the United States District Court

District of Utah, Central Division
Honorable Dee Benson
Case No. 2:14-CV-00026-DB
RESPONSE BRIEF OF APPELLEE
ALTA SKI LIFTS COMPANY
(Oral Argument Requested)
Frederick R. Thaler
Robert O. Rice
Calvin R. Winder
Ray Quinney & Nebeker P.C.
36 South State Street, Suite 1400
Salt Lake City, UT 84111
(801) 532-1500
Attorneys for Appellee Alta Ski Lifts Company
Document: 01019450454
Page: 2
CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Alta Ski
Lifts Company submits the following statement:
Alta Ski Lifts Company has no parent corporation and no publicly held
corporation owns 10% or more of Alta Ski Lifts Companys stock.
Document: 01019450454
Page: 3
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .........................................................2
STATEMENT OF RELATED CASES ...................................................................10
STATEMENT REGARDING NECESSITY OF SEPARATE BRIEFS ................10
STATEMENT OF THE ISSUES.............................................................................10
STATEMENT OF THE CASE ................................................................................11
SUMMARY OF THE ARGUMENT ......................................................................13
STANDARD OF REVIEW .....................................................................................15
ARGUMENT ...........................................................................................................16
I.
II.
ALTAS EQUIPMENT POLICY LIES OUTSIDE THE

EQUAL PROTECTION CLAUSES ZONE-OF-INTERESTS ........17
A.
THE EQUAL PROTECTION CLAUSE DOES NOT PROTECT

SNOWBOARDS ............................................................................18
B.
ALTAS EQUIPMENT POLICY TREATS ALL PEOPLE ALIKE ..........20
APPELLANTS CANNOT ESTABLISH THE ELEMENTS OF

A PRIMA FACIE EQUAL PROTECTION CLAIM .........................24
A.
ALTAS EQUIPMENT POLICY IS A PRIVATE BUSINESS

DECISION AND NOT STATE ACTION ...........................................24
1.
The State Action Inquiry Must Focus on Altas

Creation and Enforcement of its Equipment Policy .......25
a. Alta initiated the Equipment Policy. ..........................27
b. The Forest Service is not involved in enforcing
Altas Equipment Policy. .....................................28
c. The Forest Services involvement is limited to
the Permit and Plan. .............................................31
Document: 01019450454
Page: 4
d. At most, the Forest Service was aware of Altas

Equipment Policy. ................................................31
2.
Appellants Have Failed to Establish State Action

Pursuant to Any of the Gallagher Tests .........................34
a. Nexus Test ..................................................................34
b. Symbiotic Relationship Test......................................36
c. Joint Action Test ........................................................39
d. Public Function Test ..................................................41
B.
SNOWBOARDERS ARE NOT A COGNIZABLE CLASS ..................42

1.
Snowboarders Do Not Constitute a Discrete and

Identifiable Group Protected by the Equal
Protection Clause ............................................................42
a. People who choose to wear a snowboard. .................44
b. People with certain intangible traits who selfidentify as part of an alleged counterculture. .......46
2.
Engquists Reasoning Bars Appellants Challenge ........48
C.
ALTAS EQUIPMENT POLICY TREATS ALL PERSONS ALIKE........52
D.
RATIONAL BASES SUPPORT ALTAS EQUIPMENT POLICY...........53
E.
1.
Appellants Have Misstated their Legal Burden .............53
2.
Appellants Have Failed to Negate Every

Reasonably Conceivable Rational Basis for Altas
Equipment Policy............................................................55
ANIMUS IS IRRELEVANT; BUT REGARDLESS, ALTAS

EQUIPMENT POLICY IS NOT BASED ON ANIMUS .........................58
1.
Animus is Irrelevant .......................................................59
2.
No Alleged Animus Can be Attributed to the

Forest Service .................................................................61
4
Document: 01019450454
Page: 5
3.
Appellants Have Not Plausibly Alleged any

Animus Toward Snowboarders...................................64
4.
Judge Holmes Concurrence Does Not Help

Appellants .......................................................................66
CONCLUSION ........................................................................................................67
STATEMENT REGARDING ORAL ARGUMENT .............................................68
CERTIFICATE OF SERVICE ................................................................................69
CERTIFICATE OF COMPLIANCE .......................................................................70
CERTIFICATE OF DIGITAL SUBMISSION .......................................................71
Document: 01019450454
Page: 6
TABLE OF AUTHORITIES
Cases
Animal Legal Def. Fund v. Otter, 44 F. Supp. 3d 1009 (D. Idaho 2014) ................62
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................... 16, 22, 54
Aulson v. Blanchard, 83 F.3d 1 (1st Cir. 1996) .................................... 16, 43, 45, 47
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .............. 16, 26, 29, 38, 54, 65
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ................................. 59, 60, 61, 66
Blum v. Yaretsky, 457 U.S. 991 (1982) ................................................. 24, 26, 32, 62
Bray v. Alexandria Womens Health Clinic, 506 U.S. 263 (1993)................... 44, 47
Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961) .................................................................... 36, 37, 38, 39, 52
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)........... 19, 59, 60, 61
City of Cuyahoga Falls v. Buckeye Community Hope Foundation, 538 U.S.
188 (2003).............................................................................................................63
Corey Airport Servs., Inc. v. Clear Channel Outdoor, Inc.,
682 F.3d 1293 (11th Cir. 2012) ............................................................... 42, 43, 47
Davis v. Richmond, 512 F.2d 201 (1st Cir. 1975) ...................................................31
Dept of Agric. v. Moreno, 413 U.S. 528 (1973) .............................................. 60, 61
Doe v. Keane, 658 F. Supp. 216 (W.D. Mich. 1987) ..............................................31
Doe v. Lower Merion Sch. Dist., 665 F.3d 524 (3d Cir. 2011) ...............................66
Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269 (11th Cir. 2008).......................50
Engquist v. Oregon Department of Agriculture,
553 U.S. 591 (2008) ............................................ 10, 13, 14, 42, 48, 49, 50, 51, 52
Evans v. Newton, 382 U.S. 296 (1966) ....................................................................41
Farber v. City of Paterson, 440 F.3d 131 (3d Cir. 2006) ................................. 46, 47
6
Document: 01019450454
Page: 7
Faust v. Parke, No. 3:96-CV-103RP, 1996 WL 698024 (N.D. Ind. Oct. 3,

1996) .....................................................................................................................23
FCC v. Beach Commcns, Inc., 508 U.S. 307 (1993) ................................. 53, 55, 57
Flowers v. City of Minneapolis, 558 F.3d 794 (8th Cir. 2009) ...............................50
Flying J, Inc. v. City of New Haven, 549 F.3d 538 (7th Cir. 2008) .................. 59, 60
Fogle v. Pierson, 435 F.3d 1252 (10th Cir. 2006) ...................................................18
Gallagher v. Neil Young Freedom Concert,
49 F.3d 1442 (10th Cir. 1995) ............................. 24, 32, 34, 35, 36, 37, 38, 40, 41
Heller v. Doe, 509 U.S. 312 (1993) .........................................................................58
Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) ...................... 24, 31, 32, 33, 51
Jennings v. City of Stillwater, 383 F.3d 1199 (10th Cir. 2004) ...............................48
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011) .................48
LaManque v. Massachusetts Dept of Empt & Training, 3 F. Supp. 2d 83
(D. Mass. 1998) ....................................................................................................45
Lawrence v. Texas, 539 U.S. 558 (2003) .......................................................... 60, 61
Lexmark Intl, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377
(2014)....................................................................................................................17
Light v. United States, 220 U.S. 523 (1911) ............................................................50
Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004) .............................................32
Maryland v. King, 133 S. Ct. 1958 (2013) ..............................................................16
Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) ...................... 27, 30, 33, 36, 37
Morrison v. Natl Australia Bank Ltd., 561 U.S. 247 (2010) ..................................18
Papasan v. Allain, 478 U.S. 265 (1986) ..................................................................16
Plyler v. Doe, 457 U.S. 202 (1982)..........................................................................19
Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004) ........................................... 59, 60
7
Document: 01019450454
Page: 8
Romer v. Evans, 517 U.S. 620 (1996) ........................................................ 59, 60, 61

Starzynski v. Sequoia Forest Indus., 72 F.3d 816 (10th Cir. 1995) .........................61
Teigen v. Renfrow, 511 F.3d 1072 (10th Cir. 2007) ............................. 15, 26, 53, 65
Tigner v. Texas, 310 U.S. 141 (1940) ......................................................................19
United Auto Workers, Local No. 5285 v. Gaston Festivals, Inc., 43 F.3d 902
(4th Cir. 1995) ......................................................................................................51
United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825 (1983) ......................44
United States v. Moore, 543 F.3d 891 (7th Cir. 2008) ............................................50
United States v. Windsor, 133 S. Ct. 2675 (2013) ............................................ 60, 61
Valley Forge Christian College v. Americans United for Separation of
Church & State, Inc., 454 U.S. 464 (1982) ..........................................................17
Vance v. Bradley, 440 U.S. 93 (1979) .....................................................................57
Village of Willowbrook v. Olech, 528 U.S. 562 (2000) .................................... 18, 19
Watson v. Kenlick Coal Co., 498 F.2d 1183 (6th Cir. 1974) ...................................51
Other Authorities
Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37
Calif. L. Rev. 341 (1949)......................................................................................19
Number of People Both Skiing and Snowboarding Keeps Increasing
Nationwide, Examiner.com (Feb. 11, 2012, 3:50 PM) ........................................44
Susannah W. Pollvogt, Unconstitutional Animus, 81 Fordham L. Rev. 887,
889 (2013).............................................................................................................58
Rules
10th Cir. R. 25.5 .......................................................................................................71
10th Cir. R. 28.2(C) .......................................................................................... 10, 68
10th Cir. R. 31.3(B) .................................................................................................10
10th Cir. R. 31.3(D) .................................................................................................10
8
Document: 01019450454
Page: 9
Fed. R. App. P. 32(a)(5) ...........................................................................................70

Fed. R. App. P. 32(a)(6) ...........................................................................................70
Fed. R. App. P. 32(a)(7)(B) .....................................................................................70
Constitutional Provisions
U.S. Const. amend. XIV, 1 ...................................................................................18
Document: 01019450454
Page: 10
STATEMENT OF RELATED CASES

Pursuant to Tenth Circuit Rule 28.2(C), Alta Ski Lifts Company states that
there are no prior or related appeals.
STATEMENT REGARDING NECESSITY OF SEPARATE BRIEFS
Pursuant to Tenth Circuit Rule 31.3(B), Alta Ski Lifts Company states that it
is not required to state the reasons why a separate response brief is necessary. Alta
Ski Lifts Company is permitted to file a separate response brief because the only
other appellees are the United States Forest Service and David Whittekiend, in his
official capacity as Forest Service Supervisor in the Wasatch-Cache National
Forest. Therefore, the other appellees are government entities that are exempt
from the joint briefing rules pursuant to Tenth Circuit Rules 31.3(B) and 31.3(D).
STATEMENT OF THE ISSUES
1.
Whether the Equal Protection Clauses zone-of-interests encompasses Altas
Equipment Policy because it does not distinguish between persons?

2.
Whether Altas business decision to create and enforce its Equipment Policy
is fairly attributable to the Forest Service?

3.
Whether snowboarders constitute a discrete and identifiable class
protected by the Equal Protection Clause?

4.
Whether Engquist v. Oregon Department of Agriculture, 553 U.S. 591
(2008), bars Appellants class-of-one challenge?

10
5.
Document: 01019450454
Page: 11
Whether Altas Equipment Policy treats similarly situated persons
differently?
6.
Whether Appellants negated every reasonably conceivable rational basis for
Altas Equipment Policy?

7.
Whether alleged animus is relevant because rational bases support Altas
Equipment Policy?
8.
Whether alleged private animus can be attributed to the Forest Service?
9.
Whether there is any plausible allegation of animus toward snowboarders?

STATEMENT OF THE CASE
Alta Ski Lifts Company (Alta) is a private company that operates an all-
season resort, in part on United States Forest Service (Forest Service)1 land
pursuant to a Ski Area Term Special Use Permit that was approved by the Forest
Service on October 25, 2002 (Permit). (Aplts. App. at JA-16 26, JA-19 43
44, JA-20 47, JA-67.) For nearly thirty years, Alta has made the private business
decision to only allow skiing at its resort, creating a successful niche business
model that thrives by focusing on a unique skiing-only experience. (See, e.g., id. at
JA-11 2, JA-19JA-20 4346, JA-22JA-23 6165, JA-24JA-26 73
74, 7779.) Altas private decision to only permit skiing is privately enforced
1
Appellee David Whittekiend is the Forest Service Supervisor for the WasatchCache National Forest and has been sued in his official capacity. (Aplts. App. at
JA-16 28.) The United States Forest Service and Mr. Whittekiend are
collectively referred to herein as the Forest Service.
11
Document: 01019450454
Page: 12
through rules regarding the devices Alta permits individuals to use (the
Equipment Policy). (See id. at JA-20JA-21 2021.) That is, only skis can be
used on Altas slopes. (See id. at JA-277JA-278.) But, although only skiing is
allowed, anyone can ski Altas slopes. (See id. at JA-429.)
The Forest Service neither initiated nor enforces Altas Equipment Policy.
(See id. at JA-20JA-21 2021, JA-22 61.) It is alleged, however, that Alta
has authority to implement and enforce its Equipment Policy by virtue of the
Permit and Alta Ski Area Winter Site Operation Plan (Plan) that is annually
submitted by Alta to the Forest Service. (See id. at JA-20JA-21 4752.) The
Equipment Policy is not, however, found within either the Permit or Plan. (See id.)
On January 15, 2014, Wasatch Equality, Rick Alden, Drew Hicken, Bjorn
Leines, and Richard Varga (Appellants) filed suit against Alta and the Forest
Service alleging Altas Equipment Policy violates the Equal Protection Clause,
based in part on alleged animus toward snowboarders. (See generally id. at JA10JA-35.) Subsequently, Alta and the Forest Service both moved to dismiss
Appellants complaint on various grounds, (id. at JA-36JA-158, JA-251JA-311),
which Appellants opposed, (id. at JA-159JA-250). The District Court heard
argument on the motions to dismiss, (id. at JA-312JA-402), and later entered a
Memorandum Decision and Order, (id. at JA-403JA-432), that was appealed in its
entirety by Appellants, (id. at JA-8).
12
Document: 01019450454
Page: 13
Specifically, the District Court correctly held that (1) Appellants failed to
establish state action, (id. at JA-408JA-412); (2) Appellants equal protection
claims must proceed under a class-of-one framework, (id. at JA-416); (3)
Appellants class-of-one challenge is barred pursuant to Engquist and the Property
Clause, (id. at JA-418JA-423); (4) Appellants failed to plead a plausible claim for
relief under the rational basis standard, (id. at JA-423JA-427); (5) Appellants
animus allegations are irrelevant because numerous rational bases support Altas
Equipment Policy, (id. at JA-427JA-429); and (6) Appellants animus allegations
are inadequate because they are not plausible and it is undeniable that Altas
[Equipment Policy] bans only snowboards from Alta, not people, (id. at JA-429).
SUMMARY OF THE ARGUMENT
The Court should affirm the District Courts decision and dismiss
Appellants complaint for failure to state a claim for which relief can be granted
because (1) it falls outside the Equal Protection Clauses zone-of-interests and
(2) fails to establish the prima facie elements of an equal protection claim.
First, Altas Equipment Policy makes no distinction as to persons, only
different things. Importantly, anyone can ski Altas slopes. Therefore,
Appellants challenge falls outside the Equal Protection Clauses zone-of-interests.
Second, Appellants have failed to (1) establish that the Equipment Policy
and its enforcement are products of state action; (2) define a discrete and
13
Document: 01019450454
Page: 14
identifiable class of people; (3) show that such class of people are treated
differently by the Equipment Policy than other similarly situated classes of people;
(4) negate every reasonably conceivable rational basis for the Equipment Policy;
and (5) properly invoke the animus doctrine.
Altas Equipment Policy is a private business decision. The Forest Service
did not participate in creating Altas Equipment Policy and is not involved in its
enforcement. The Forest Service has no connection to Altas Equipment Policy,
and its only connection to Alta is through its general relationship with Alta
pursuant to the Permit and Plan. However, this is insufficient to establish state
action. At most, Appellants have alleged the Forest Service is aware of Altas
private decision.
Appellants challenge is also deficient because snowboarders are not a
discrete and identifiable class of persons protected by the Equal Protection Clause.
Anyone can wear a snowboard, rendering the alleged class without discrete
boundaries and unidentifiable. Further, reference to intangible personality traits,
and self-identification with a snowboarding counterculture, provides no readily
identifiable characteristics that would allow the Court to objectively determine if
an individual is a snowboarder or not.
Thus, Appellants claim falls within the class-of-one framework. However,
Engquist bars Appellants challenge because the Property Clause establishes the
14
Document: 01019450454
Page: 15
federal government as proprietor over public lands, requiring broad discretion for
land-use decisions.
Altas Equipment Policy treats all similarly situated persons alike. Anyone
can ski Altas slopes. No one can use an unapproved device.
Further, Altas Equipment Policy is supported by numerous rational bases.
Importantly, Altas Equipment Policy is central to its successful niche business
model that thrives by focusing on a unique skiing-only experience.
Finally, under binding Tenth Circuit precedent, animus is irrelevant because
rational bases support Altas Equipment Policy. But regardless, Appellants have
not credibly alleged animus against Alta, let alone against the Forest Service.
STANDARD OF REVIEW
The court reviews de novo the district courts grant of a motion to dismiss
pursuant to Rule 12(b)(6), applying the same legal standard applicable in the
district court. Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). That is,
[a]ll well-pleaded facts, as distinguished from conclusory allegations are accepted
as true and viewed in the light most favorable to the nonmoving party. Id.
In reviewing a motion to dismiss, th[e] [C]ourt must look for plausibility
in the complaint, requiring that the complaint include enough facts to state a
claim for relief that is plausible on its face. Id. A claim has facial plausibility
when the plaintiff pleads factual content that allows the [C]ourt to draw the
15
Document: 01019450454
Page: 16
reasonable inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where a complaint pleads facts that
are merely consistent with a defendants liability, it stops short of the line
between possibility and plausibility of entitlement to relief. Id.
Although deferential, this standard does not force an appellate court to
swallow the [Appellants] invective hook, line, and sinker; bald assertions,
unsupportable conclusions, periphrastic circumlocutions, and the like need not be
credited. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). Factual allegations
must be enough to raise a right to relief above the speculative level, and more is
required than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Further, the Court is not bound to accept as true a legal
conclusion couched as a factual allegation. Id. (quoting Papasan v. Allain, 478
U.S. 265, 286 (1986)); see also Iqbal, 556 U.S. at 67879 (Rule 8 . . . does not
unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.).
ARGUMENT
The assertion that the Equal Protection Clause recognizes and protects a
constitutional right to snowboard taxes the credulity of the credulous. See
Maryland v. King, 133 S. Ct. 1958, 1980 (2013) (Scalia, J., dissenting). Yet, this
16
Document: 01019450454
Page: 17
incredible question lies at the heart of this appeal and begs this question: If I have a
constitutional right to snowboard, what do I not have the constitutional right to do?
Quite simply, the Constitution neither recognizes nor protects a right to
snowboard. First, Appellants challenge falls outside the Equal Protection
Clauses zone-of-interests because Altas Equipment Policy does not distinguish
among persons. Second, Appellants have failed to establish a prima facie equal
protection violation.
I.
ALTAS EQUIPMENT POLICY LIES OUTSIDE THE EQUAL

PROTECTION CLAUSES ZONE-OF-INTERESTS
Altas Equipment Policy falls outside the Equal Protection Clauses zone-of-
interests because it does not distinguish among persons. The zone-of-interests test
requires that a plaintiffs complaint fall within the zone of interests to be
protected or regulated by the statute or constitutional guarantee in question.
Valley Forge Christian College v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 475 (1982). In Lexmark, the Supreme Court held this
inquiry is critical because a cause of action extends only to plaintiffs whose
interests fall within the zone of interests protected by the law invoked. Lexmark
Intl, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388 (2014). Thus,
the zone-of-interests test determines who may invoke [a] cause of action
provided for by the . . . constitutional guarantee in question. Id. at 138889. And,
to ask what conduct [a law] reaches is to ask what conduct [a law] prohibits,
17
Document: 01019450454
Page: 18
which is a merits question, rendering a Rule 12(b)(6) label appropriate for a

zone-of-interests inquiry. See Morrison v. Natl Australia Bank Ltd., 561 U.S. 247,
254 (2010).
Here, Appellants challenge is outside the Equal Protection Clauses zoneof-interests because (1) the Equal Protection Clause protects persons, not
things; and (2) Appellants have not plausibly alleged the differential treatment of
any person.
A.
THE EQUAL PROTECTION CLAUSE DOES NOT PROTECT SNOWBOARDS
Appellants challenge fails because Altas Equipment Policy distinguishes

between devices, not persons. It is axiomatic that equal protection claims must be
based on distinctions among people. See U.S. Const. amend. XIV, 1 (No State
shall . . . deny to any person within its jurisdiction the equal protection of the
laws. (emphasis added)); Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir. 2006)
(Equal protection is essentially a direction that all persons similarly situated
should be treated alike. (emphasis added)). The purpose of the equal protection
clause of the Fourteenth Amendment is to secure every person within the States
jurisdiction against intentional and arbitrary discrimination, whether occasioned by
express terms of a statute or by its improper execution through duly constituted
agents. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (emphasis
18
Document: 01019450454
Page: 19
added).2 In other words, [t]he Equal Protection Clause directs that all persons
similarly circumstanced shall be treated alike. Plyler v. Doe, 457 U.S. 202, 216
(1982) (emphasis added); see also City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985).
The Constitution does not, however, require things which are different in
fact or opinion to be treated in law as though they were the same. Tigner v.
Texas, 310 U.S. 141, 147 (1940); see also Plyler, 457 U.S. at 216. Thus, distilled
to its essence, the Equal Protection Clause protects people, not things. See Joseph
Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 Calif. L. Rev.
341, 344 (1949) (The essence of the doctrine can be stated with deceptive
simplicity. The Constitution does not require that things different in fact be treated
as though they were the same.).
Here, Altas Equipment Policy makes no distinction between persons; rather,
it defines what devices can and cannot be used at Alta. (See, e.g., Aplts. App. at
JA-11, JA-95JA-96, JA-277JA-278, JA-429.) Put simply, skis, snowboards,
snowbikes, and other devices do not constitute persons, or even the same
things. Therefore, the Forest Service and Alta can facially distinguish between
such devices without infringing the Equal Protection Clause.
Appellants have admitted this. (See Aplts. Br. at 40 (quoting Olech, 528 U.S. at
564).)
19
B.
Document: 01019450454
Page: 20
ALTAS EQUIPMENT POLICY TREATS ALL PEOPLE ALIKE
Further, Altas Equipment Policy does not, in effect, distinguish among

persons. As the District Court stated:
[I]t is undeniable that Altas snowboard policy bans only
snowboards from Alta, not people. It is an equipment
restriction only. [Appellants] concede that they are
welcome at Alta so long as they, just like sledders and
snowshoers, or any other person, abide by the skiers-only
policy. There is no ban against [Appellants] as people . .
..
(Aplts. App. at JA-429.) That is, Altas Equipment Policy disallows snowboard
use at Altaas well as the use of other unapproved devices, like innertubes, sleds,
snowbikes, snowtrikes, ski wings, etc. (See, e.g., id. at JA-11, JA-95JA-96, JA277JA-278.) But, whether a person is black or white, male or female, young or
old, prefers snowboarding, snowbiking, or skiing, or is a member of the so-called
snowboarding movement and counterculture, (see id. at JA-17 32), Altas
Equipment Policy applies equally to all. Anyone can ski at Alta.
Aware of this flaw, Appellants try to make this case about something else.
(See, e.g., id. at JA-361 (I think it is important to realize what this case is about.
This case is not about equipment. It is not about skiing and snowboarding. It is
about deciding that you dont like a group of people and dont want to associate
with that group of people because you dont like them on your mountain and
excluding them.).) Appellants have stated: Plaintiffs alleged that whether a
20
Document: 01019450454
Page: 21
device is prohibited by Alta depends on the identity of the individual using it.
(Aplts. Br. at 41; see also Aplts. App. at JA-164.) But, this is not the case.
Appellants complaint is devoid of any allegation that a snowboarder who comes
to Alta wearing skis is not permitted to access and otherwise enjoy Altas slopes.
In fact, [Appellants] [have] concede[d] that they are welcome at Alta so long as
they, just like sledders and snowshoers, or any other person, abide by the skiersonly policy. There is no ban against [Appellants] as people . . . . (Aplts. App. at
JA-429.) This is fatal to Appellants challenge.
Laying unsupported rhetoric aside, close consideration of Appellants
complaint reveals no plausible allegation that Altas Equipment Policy
distinguishes between people. The complaint simply alleges that Wasatch
Equalitys members, including its officers and directors, as well as the individual
defendants, have been denied access to snowboard at Alta. (See id. at JA-15
2125 (emphasis added).) Appellants further allege that the individual
defendants purchased Alta lift tickets, but were not allowed to ride Altas chairlifts
while they each had one foot strapped into their snowboards. (See id. at JA-30
JA-31.) Specifically, Appellants allege that Altas lift operators told Plaintiffs
that snowboards were not allowed at Alta and that they therefore could not ride on
the chairlift. (Id. at JA-30 93.) Based on these allegations, Appellants
implausibly allege Plaintiffs Alden, Hicken, and Varga . . . departed having been
21
Document: 01019450454
Page: 22
denied the opportunity to use their purchased lift tickets at Alta because they were
snowboarders. (Id. at JA-30 97.)
But, Appellants allegation is untenable because Appellants fail to allege that
they came to Alta wearing an approved device and still were not permitted to
access and enjoy Altas slopes. As in Iqbal: Where a complaint pleads facts that
are merely consistent with a defendants liability, it stops short of the line
between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at
678. Appellants allegations are inconsistent with Alta denying access based on
the identity of [an] individual using [a device], (see Aplts. Br. at 41); rather, they
are consistent with Alta denying access based on the fact that Appellants were not
complying with the Equipment Policy.
If they came to Alta and used an approved device, Appellants would be free
to access and enjoy Altas slopesnotwithstanding their alleged self-identification
as snowboarders, membership in the snowboarding movement and
counterculture, (see Aplts. App. at JA-17 32), and exhibition of certain
intangible personality traits, (see id. at JA-23 67). On the other hand, even the
quintessential skieran Alta season-pass holder who skis Altas slopes 100-plus
days each yearwould not be allowed to access and enjoy Altas slopes while
using a snowboard, snowbike, or other unapproved device. Device identification is
relevant. Personal identification is irrelevant.
22
Document: 01019450454
Page: 23
Appellants deficient allegations are highlighted by Faust v. Parke, No.

3:96-CV-103RP, 1996 WL 698024 (N.D. Ind. Oct. 3, 1996). In Faust, a prisoner
raised a claim under 1983 based upon the Equal Protection Clause of the
Fourteenth Amendment, requiring the prisoner to demonstrate differential
treatment of a group of persons. See id. at *8. The court stated:
Although Faust alleges that he is a member of a class
described as jailhouse lawyers, and that the policy in
question was aimed at curtailing the ability of jailhouse
lawyers to engage in litigation, there is no indication in
the complaint that jailhouse lawyers are treated any
differently than other prisoners under the policy. Indeed,
the policy treats all prisoners alike, regardless of their
inclination to file lawsuits or provide assistance to other
inmate litigators.
Id. As in Faust, Appellants allegations that Altas Equipment Policy determines
whether a device is prohibited based on the identity of the individual using it,
(see Aplts. Br. at 41), are insufficient because there is no [plausible] indication in
the complaint that [snowboarders] are treated any differently than other [persons
desiring to access and enjoy Altas slopes] under [Altas Equipment Policy]. See
Faust, 1996 WL 698024, at *8.
Altas Equipment Policy treats all persons alike; therefore, Appellants
challenge falls outside the Equal Protection Clauses zone-of-interests and should
be dismissed.
23
II.
Document: 01019450454
Page: 24
APPELLANTS CANNOT ESTABLISH THE ELEMENTS OF A

PRIMA FACIE EQUAL PROTECTION CLAIM
Appellants challenge should be dismissed because they have failed to
establish the elements of an equal protection claim. Specifically, Appellants have

failed to (1) establish that Altas Equipment Policy and its enforcement are
products of state action; (2) define a discrete and identifiable class of people;
(3) show that such class of people are treated differently by the Equipment Policy
than other similarly situated classes of people; (4) negate every reasonably
conceivable rational basis for the Equipment Policy; and (5) properly invoke the
animus doctrine.
A.
ALTAS EQUIPMENT POLICY IS A PRIVATE BUSINESS DECISION AND NOT

STATE ACTION
Altas Equipment Policy is a private business decision immune from the

restrictions of the Fourteenth Amendment. See Jackson v. Metro. Edison Co., 419
U.S. 345, 349 (1974); see also Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)
(holding the Fourteenth Amendment erects no shield against merely private
conduct, however discriminatory or wrongful). The state-action doctrine
preserves an area of individual freedom by . . . avoid[ing] imposing on the State,
its agencies or officials, responsibility for conduct for which they cannot fairly be
blamed. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th
Cir. 1995).
24
Document: 01019450454
Page: 25
Here, the District Court properly held Altas Equipment Policy constitutes
private action. (See Aplts. App. at JA-408JA-412.) While recognizing that the
state-action doctrine is typically quite challenging to understand and decipher,
(id. at JA-408), the District Court concluded that [w]hile this may be true in
certain situations, this case is not one of them, (id. at JA-409). The District Court
stated:
For purposes of demonstrating state action, the question
is whether Altas decision to ban snowboards may fairly
be attributable to the Federal Defendants, and here there
are no facts alleged to support such involvement by the
government. The Plaintiffs make no allegation, and have
presented no evidence whatsoever, that the Forest
Service did anything to influence Altas decision to ban
snowboards at its resort. The decision was Altas, and
Altas alone, operating as a private business. The Forest
Service did not encourage the rule, discourage the rule,
agree with the rule, or disagree with the rule; nor was the
Forest Service consulted on the appropriateness of the
rule. Under such circumstances, pursuant to all existing
precedent binding on this court, there is no state action.
(Id.)
Alta, not the Forest Service, created and enforces its Equipment Policy.
Thus, it is not a product of state action.
1.
The State Action Inquiry Must Focus on Altas Creation and

Enforcement of its Equipment Policy
Altas Equipment Policy is a private business decision that cannot be fairly

attributed to the Forest Service. Appellants assert that the Forest Service
25
Document: 01019450454
Page: 26
endorses, authorizes, allows, approves, and enforces the [Equipment

Policy]. (See Aplts. Br. at 2324.) Appellants support these assertions by
reference to their complaint, which alleges: the Equipment Policy was
(1) approv[ed] and enforce[d] by the Forest Service, (Aplts. App. at JA-11 4);
(2) adopted, approved, and enforced by the Forest Service, (id. at JA-14 17);
and (3) approv[ed], endors[ed], and authorize[ed] due to the Forest Services
annual review and approval of Altas Plan, (id. at JA-16 28). But, these are
simply Appellants conclusions as to the effect of the Forest Services involvement
with Alta, which the Court should not accept as true. See Twombly, 550 U.S. at
555; Teigen, 511 F.3d at 1078. Therefore, the Court must only consider factual
allegationsas opposed to conclusionsregarding the Forest Services actual
involvement with Altas Equipment Policy.
The Court must first determine the specific action at issue. Faithful
adherence to the state action requirement of the Fourteenth Amendment requires
careful attention to the gravamen of the plaintiffs complaint. Blum, 457 U.S. at
1003. That is, [t]he complaining party must . . . show that there is a sufficiently
close nexus between the State and the challenged action of the regulated entity so
that the action of the latter may be fairly treated as that of the State itself. Id. at
1004. The purpose of this requirement is to assure that constitutional standards
are invoked only when it can be said that the State is responsible for the specific
26
Document: 01019450454
Page: 27
conduct of which the plaintiff complains, which is especially important when, as

in this case, the complaining party seeks to hold the State liable for the actions of
[a] private part[y]. Id.
Here, Appellants challenge the decision to enact and enforce Altas
Equipment Policy. Therefore, the Courts state-action analysis must focus on
whether Altas promulgation and enforcement of its Equipment Policy is fairly
attributable to the Forest Service. It is not.
a. Alta initiated the Equipment Policy.
The Supreme Courts holdings indicate that where the impetus for the
discrimination is private, the State must have significantly involved itself with
invidious discriminations, in order for the discriminatory action to fall within the
ambit of the constitutional prohibition. Moose Lodge No. 107 v. Irvis, 407 U.S.
163, 173 (1972). Here, Appellants have alleged that the Equipment Policy was
initiated by Altanot the Forest Service. (See, e.g., Aplts. App. at JA-22 61
(By the mid-1980s, Alta summarily decided it would no longer allow
snowboarders to access its terrain or ride its chairlifts and instituted its antisnowboarder policy and snowboarding ban.).) Because it is undisputed that Alta
initiated the Equipment Policy, the Court should analyze Appellants factual
allegations regarding the Forest Services involvementor lack thereofin
enforcing Altas Equipment Policy.
27
Document: 01019450454
Page: 28
b. The Forest Service is not involved in enforcing Altas

Equipment Policy.
Appellants allege: (1) Alta operates under a U.S. Forest Service Ski Area
Term Special Use Permit, (Aplts. App. at JA-20 47); (2) Altas Permit requires
the Forest Service to approve Altas Winter Site Operation Plan each year, (id. at
JA-20 48); (3) Altas Plan states that uphill and downhill travel must be
accepted and approved by Alta and that Alta reserves the right to exclude any type
of skiing device that [it] deem[s] creates an unnecessary risk to other skiers and/or
the user of the device, or any device [it] deem[s] causes undue damage to the
quality of the snow, or is not consistent with the business management decisions,
(id. at JA-20JA-21 51); (4) Alta enforces its Equipment Policy pursuant to this
provision of Altas Plan, (id. at JA-21 52); (5) By approving Altas Plan, the
[Forest Service] has allowed Alta to ban snowboarders from using public land,
(id.); (6) Both under the Permit and as owner and leaseholder of the land on
which Alta operates, the [Forest Service] exercises substantial control over Altas
use of public land, (id. at JA-21 55); and (7) the Forest Service receives a fee
based on a percentage of revenue from lift-ticket sales and ski-school operations,
(id. at JA-21 56).
Appellants further allege there (1) is a Forest Service flag flying over the
Alta ticket office, (2) an Alta sign stating NO SNOWBOARDS, (3) Forest
Service logos displayed alongside Alta logos, and (4) a statement that Alta and the
28
Document: 01019450454
Page: 29
Forest Service are Partners in Skiing, and a separate statement by Alta that
Snowboarding is not allowed. (Aplts. Br. at 2627; see also Aplts. App. at JA22JA-23 6366.)3
However, none of these allegations show any direct involvement by the
Forest Service in enforcing Altas Equipment Policy. Despite this, Appellants
make numerous unsupported legal conclusions, including that: (1) the Forest
Service has entered into a joint enterprise and a symbiotic relationship with
Alta in its ski-resort business, (see Aplts. App. at JA-21 57); and (2) Altas
Equipment Policy is therefore enforced on federally-owned land and is
reviewed and endorsed annually by the [Forest Service] in approving Altas Permit
and/or Plan as well as under the terms of its contract with Alta, (id. at JA-22
58).
But, it is apparent that Appellants conclusions do not rest on any allegations
of actual enforcement action by the Forest Service. Rather, Appellants rely on the
Forest Services general involvement with Alta, which is the same as with any
other ski area located on public land pursuant to a Forest Service permit.
From these allegations, Appellants draw the unwarranted, speculative conclusion

that the Forest Service exclud[es] certain people from public property based on
stereotypes and animus, shar[ing] a mutual goal with Alta to create a skier-only
resort that excludes snowboarders from public property. (Aplts. Br. at 33.) The
Court should not sanction Appellants speculation and illegitimate conclusions
conjured to manufacture a constitutional case about the right to snowboard. See
Twombly, 550 U.S. at 555.
29
Document: 01019450454
Page: 30
Appellants also essentially ask the Court to hold that the general presence of a
Forest Service flag and logo at Alta, somehow transmutes a No Snowboards sign
that was unilaterally posted by Alta in its sole discretion, into one that instead
states: By Official Order of the United States Forest Service, Snowboarders are
Not Welcome on the Public Lands Located at Alta.
To be clear, Altas Equipment Policy is not found within the Permit or Plan.
The Permit and Plan simply allow Alta to take certain actions, and Appellants
allege that it is [o]stensibly under [such] provision[s] that Alta enforces its
Equipment Policy. (See Aplts. App. at JA-21 52.) Importantly, though, it is
evident on the face of the Plan that the Forest Service does not enforce Altas
Equipment Policy. (See id. at JA-86 II.B (Alta is responsible for the execution
of all provisions of this plan and all subordinate plans.); id. at JA-95JA-96
VIII.E (Alta Ski Area . . . may revoke a skiers pass or ticket, remove a skier or
person from the Special Use Permit area and no-trespass them for, among other
things, violating Altas Equipment Policy).) Thus, enforcement of Altas
Equipment Policy falls on Altas shoulders. Therefore, Appellants cannot establish
that state action . . . enforces privately originated discrimination. Moose Lodge,
407 U.S. at 172.
30
Document: 01019450454
Page: 31
c. The Forest Services involvement is limited to the Permit

and Plan.
Appellants allegations boil down to nothing more than Alta promulgated
and enforces its Equipment Policy pursuant to general business decision making
authority granted to Alta through the Permit and Plan. But, [c]ontrolling law is
clear that exercise of a choice allowed by state law, where the initiative comes
from a private actor and not from the state, cannot make a private act a state act for
purposes of the Fourteenth Amendment. Doe v. Keane, 658 F. Supp. 216, 22021
(W.D. Mich. 1987) (citing Jackson, 419 U.S. at 357); see also Davis v. Richmond,
512 F.2d 201, 204 (1st Cir. 1975) (Only if we were to infer state involvement
from the mere existence of state regulatory legislation could we accept plaintiffs
position.).
There are no allegations tying Altas Equipment Policy to the Forest Service.
Instead, all Appellants do is rely on general allegations regarding the Permit and
Plan. (See Aplts. App. at JA-20JA-22 4758.) This is insufficient.
d. At most, the Forest Service was aware of Altas Equipment
Policy.
At best, Appellants have alleged mere awareness, which is legally
insufficient.
Governmental defendants normally can be held
responsible for a private decision only when [they have]
exercised coercive power or [have] provided such
significant encouragement, either overt or covert, that the
31
Document: 01019450454
Page: 32
choice must in law be deemed to be that of the State.

Mere approval of or acquiescence in the initiatives of a
private party is not sufficient to justify holding the State
responsible for those initiatives under the terms of the
Fourteenth Amendment.
Marcus v. McCollum, 394 F.3d 813, 818 (10th Cir. 2004) (quoting Blum, 457 U.S.
at 100405); see also Gallagher, 49 F.3d at 1453.4
This case is like Jackson, where the petitioner argued that Metropolitans
termination [wa]s state action because the State . . . specifically authorized and
approved the termination practice. Jackson, 419 U.S. at 354. The basis for
petitioners argument was a general tariff filed annually with a state agency, a
provision of which state[d] Metropolitans right to terminate service for
nonpayment. Id. The Supreme Court flatly rejected this argument. Id.
As discussed, Appellants have only alleged that the Forest Service is
connected to Altas Equipment Policy by virtue of the Permit and Planneither of
which makes any mention of Altas Equipment Policy. Jackson holds such
connections are insufficient: [T]here was no [state] imprimatur placed on the
practice of Metropolitan about which petitioner complain[ed], and even
[a]pproval by a state utility commission of such a request from a regulated utility,
Appellants attempt to make much of the assertion that Gallagher was decided
on summary judgment when facts ha[d] been developed through discovery and
c[ould] be analyzed properly. (Aplts. Br. at 2223.) But, the Supreme Courts
seminal state-action case was decided on a motion to dismiss. See Jackson, 419
U.S. at 349.
32
Document: 01019450454
Page: 33
where the commission has not put its own weight on the side of the proposed
practice by ordering it, does not transmute a practice initiated by the utility and
approved by the commission into state action. Id. at 357. At most, Appellants
allege that the Forest Service was aware of Altas Equipment Policy; but, that
cannot transmute a private decision initiated and enforced by Alta into state action.
If the Court were to find state action here, such a holding would utterly
emasculate the distinction between private as distinguished from state conduct.
Moose Lodge, 407 U.S. at 173. That is, if all that were required to establish stateaction is to show that a private entity had general authority to make discretionary
business decisions pursuant to a federal permit, then all such actions taken by the
[n]umerous other resorts operat[ing] on federal land under similar permits would
likewise be state action. (See Aplts. App. at JA-22 59.) Indeed, state action
would be imputed to the federal government for the private actions of myriad other
private entities operating on public lands. (See id. at JA-266 & nn.45.) As
recognized in Jackson: If the mere existence of this regulatory scheme made
Metropolitans action that of the State, then presumably the actions of a lone
Philadelphia cab driver could also be fairly treated as those of the State of
Pennsylvania. Jackson, 419 U.S. at 350 n.7. This cannot be.
Therefore, Appellants failed to allege any plausible state action.
33
2.
Document: 01019450454
Page: 34
Appellants Have Failed to Establish State Action Pursuant to

Any of the Gallagher Tests
The fact that Appellants cannot establish state action is further demonstrated
by considering Gallaghers nexus, symbiotic relationship, joint action, and public
function tests.
a. Nexus Test
Under the nexus test, a plaintiff must demonstrate that there is a
sufficiently close nexus between the government and the challenged conduct such
that the conduct may be fairly treated as that of the State itself. Gallagher, 49
F.3d at 1448. Under this approach, a state normally can be held responsible for a
private decision only when it has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the choice must in law be
deemed to be that of the State. Id. The nexus test [e]nsures that the state will be
held liable for constitutional violations only if it is responsible for the specific
conduct of which the plaintiff complains. Id.
As with all 120 ski resorts on Forest Service land, undoubtedly, there is
some regulation of Alta by the Forest Service. But, this is not the relevant inquiry.
Rather, the Court must focus on the nexus between the Forest Service and Altas
Equipment Policythe challenged conduct. That is, the focus must be whether
Appellants have demonstrate[d] that there is a sufficiently close nexus between
the [Forest Service] and [Altas Equipment Policy] such that [Altas Equipment
34
Document: 01019450454
Page: 35
Policy] may be fairly treated as that of the [Forest Service] itself. See id.
Through this lens, Appellants have not plausibly alleged that the Forest Service has
actually enforced Altas Equipment Policy. See id. at 1451 (emphasizing
importance of a government entity actually enforcing a challenged rule, as opposed
to mere acquiescence).
Appellants have alleged that the Forest Services oversight, administration,
and control over nearly every aspect of operations at Alta is extensive. (See
Aplts. App. at JA-192; see also id. at JA-20JA-22 4759.) Appellants assert
they have detailed many specific examples of the mandatory and pervasive
oversight, administration, and control of Altas operations and management by the
[Forest Service] and the strict obligations, procedures, protocols, and other
requirements imposed on Alta under the Permit and Plan. (Aplts. Br. at 26.)
However, these allegations do not illustrate any close nexus between the Forest
Service and Altas Equipment Policy, much less that the Forest Service has
exercised coercive power or has provided such significant encouragement, either
overt or covert, that [Altas Equipment Policy] must in law be deemed to be that of
the [Forest Service]. See Gallagher, 49 F.3d at 1448.
To the contrary, Appellants have illustrated the express exceptions to the
nexus test: (1) [T]he existence of governmental regulations, standing alone, does
not provide the required nexus, id.; (2) [T]he fact that a private entity contracts
35
Document: 01019450454
Page: 36
with the government or receives governmental funds or other kinds of

governmental assistance does not automatically transform the conduct of that
entity into state action, id.; and (3) [M]ere approval of or acquiescence in the
initiatives of a private party is not sufficient to justify holding the State responsible
for those initiatives under the terms of the Fourteenth Amendment. Id. As
discussed above, there is no plausible allegation that the Forest Service enforces
Altas Equipment Policy. Nor is there any suggestion in this record that the
[Permit or Plan] are intended either overtly or covertly to encourage [Altas
Equipment Policy]. Moose Lodge, 407 U.S. at 173.
At most, Appellants allegations are simply consistent with mere awareness
by the Forest Service, which is not enough. See Gallagher, 49 F.3d at 1450.
Appellants cannot satisfy the nexus test.
b. Symbiotic Relationship Test
Pursuant to the symbiotic relationship test, [s]tate action is . . . present if the
state has so far insinuated itself into a position of interdependence with a private
party that it must be recognized as a joint participant in the challenged activity.
Id. at 1451. Appellants have emphasized this test, asserting [t]his case presents
one of the rare state-action fact patterns analogous to Burton v. Wilmington
Parking Authority, 365 U.S. 715 (1961). (Aplts. Br. at 29.) But, Appellants
reliance on Burton is to no avail.
36
Document: 01019450454
Page: 37
Contrary to the Supreme Courts direction, Appellants ask the Court to read
Burton expansively. See Burton, 365 U.S. at 726 ([T]he conclusions drawn from
the facts and circumstances of this record are by no means declared as universal
truths on the basis of which every state leasing agreement is to be tested.); see
also Gallagher, 49 F.3d at 1451 (Subsequent Supreme Court decisions have read
Burton narrowly.). The Court has never held, of course, that discrimination by
an otherwise private entity would be violative of the Equal Protection Clause if the
private entity receives any sort of benefit or service at all from the State, or if it is
subject to state regulation in any degree whatever. Moose Lodge, 407 U.S. at 173.
Cases interpreting Burton have emphasized that the alleged
interdependence must enable the state to carry out its primary public purpose.
See id. at 175. In Burton, the Wilmington Parking Authoritys (WPA) statutory
purpose was to provide adequate parking facilities for the convenience of the
public and thereby relieve the parking crisis, which threaten[ed] the welfare of the
community. Burton, 365 U.S. at 717. The WPAs first project was the parking
structure at issue in Burton. See id. at 718. Prior to construction, the WPA was
advised by its retained experts that the anticipated revenue from the parking of cars
and proceeds from [the] sale of its bonds would not be sufficient to finance the
construction costs of the facility, which was designed to operate as a selfsustaining unit. Id. at 719, 724. Thus, to enable the parking structure to be
37
Document: 01019450454
Page: 38
economically feasible, the WPA entered into a long-term lease with, among others,
the Eagle Restaurantwhich refused to serve [the] appellant food or drink
because he [wa]s a Negro.5 Id. at 716, 719.
Regarding the alleged interdependence in this case, [f]actual allegations
must be enough to raise a right to relief above the speculative level. Twombly, 550
U.S. at 555. Here, there is simply no plausible argument that without Alta the
Forest Service could not carry out its primary public purpose. Similarly, the Court
is not bound to accept as true a legal conclusion couched as a factual allegation.
Id. If anything, Appellants unsupported assertion of interdependence constitutes
mere speculation of a legal conclusion, falling short of the recognition in Burton
that the parking structurethe primary public purpose of the WPAcould not be
built without the lease. See Burton, 365 U.S. at 719. Similarly, in Gallagher, the
Court emphasized that the government actors long-term dependence on the
operations of a private entity is critical to establishing state action under the
symbiotic relationship test. See Gallagher, 49 F.3d at 1452. It is beyond credible
to think that the United States Forest Service is dependent on Alta.
As the Tenth Circuit noted in a similar case, the problem is that Appellants
read Burton and its progeny too broadly. Gallagher, 49 F.3d at 1453.
Importantly, Burton dealt with a racial classification subject to strict scrutiny.

See Burton, 365 U.S. at 71924.
38
Document: 01019450454
Page: 39
Here, in contrast to Burton, the record does not establish

that the allegedly unconstitutional conduct generated
profits that were indispensable elements in the [Forest
Services] financial success. The economic benefits that
the [Forest Service] derived from leasing the [public
lands located at Alta] are indistinguishable from those
that could be obtained through contracts generally.
Payments under government contracts . . . are insufficient
to establish a symbiotic relationship between the
government and a private entity.
See id. (internal citations omitted). Thus, Altas contractual relationship with the
Forest Service falls far short of the degree of indispensability required by Burton
and . . . is indistinguishable from a variety of benefits that government entities
generally derive from public contracts. Id.6
Appellants cannot satisfy the symbiotic relationship test.
c. Joint Action Test
State action is . . . present if a private party is a willful participant in joint
action with the State or its agents. Id. Contrary to the symbiotic relationship
test, the focus of this test is not on long-term interdependence between the state
Appellants argue: The proper scope for determining financially integral in

Burton was neither the entire federal government, all federal buildings, nor even all
parking structures owned and leased by the government. Rather, the Burton Court
considered only whether the single lease to the restaurant could be fairly
considered an indispensable part of the governments project in that single parking
structure. (Aplts. Br. at 31.) Appellants argument fails. In Burton, the parking
structure at issue was [t]he first project undertaken by the WPA and specifically
intended to operate as a self-sustaining unit. See Burton, 365 U.S. at 718, 724.
To the contrary, Alta was built and is maintained by Alta, not the Forest Service,
and is not intended to operate as a self-sustaining unit within the Forest Service.
39
Document: 01019450454
Page: 40
and private entity; rather, courts examine whether state officials and private
parties have acted in concert in effecting a particular deprivation of constitutional
rights. Id. Under the joint action test, the Court has held that state action may be
found if a state actor has participated in or influenced the challenged decision or
action. Id. at 1454. This requires a substantial degree of cooperative action
between state and private officials, or overt and significant state participation.
Id.
There are no allegations tying Altas Equipment Policy to the Forest Service.
Instead, all Appellants do is rely on general allegations regarding the Permit and
Plan. (See Aplts. App. at JA-20JA-22 4758.)7 But, such allegations do not
show that the Forest Service has participated in or influenced Altas Equipment
Policy. See Gallagher, 49 F.3d at 1454. At most, Appellants have alleged the
Forest Services awareness of Altas private initiative. But, [j]ust as with the
other tests for state action, the mere acquiescence of a state official in the actions
Appellants improperly rely on a conclusory and unsupported assertion to support

their joint action argument. (See, e.g., Aplts. Br. at 33 (Plaintiffs alleged that the
Government shares a mutual goal with Alta to create a skier-only resort that
excludes snowboarders from public property.).) Appellants ask the Court to hold
that [b]ecause the Plan is routinely approved while knowing that it may authorize
enforcement of [Altas Equipment Policy], the [Forest Service] is no mere
bystander. (See id. at 34.) But, Appellants have made no factualas opposed to
speculative and conclusoryallegations that support anything more than a finding
of mere awareness of Altas Equipment Policy. See supra Part II.A.2.
40
Document: 01019450454
Page: 41
of a private party is not sufficient. Id. at 1453. Appellants cannot satisfy the joint
action test.
d. Public Function Test
Finally, the public function test recognizes that [i]f the state delegates to a
private party a function traditionally exclusively reserved to the State, then the
private party is necessarily a state actor. Gallagher, 49 F.3d at 1456. The Court
has been clear that [t]his test is difficult to satisfy, and [w]hile many functions
have been traditionally performed by governments, very few have been exclusively
reserved to the State. Id. (internal quotation marks omitted).
Quite simply, ski resort operation is not a function that has been exclusively
reserved to the State, or even traditionally performed by governments. See id.
Undeterred, Appellants argue: Few public functions are as traditionally and
exclusively performed by the Government as management of National Forest
property, which has been integral to the Government for over a century.8 (Aplts.
Br. at 34.) However, the Forest Service, not Alta, manages the land by deciding
who to issue the permit to. Alta, not the Forest Service, manages the operations of
Appellants rely on Evans v. Newton, 382 U.S. 296 (1966). In Evans, the
Supreme Court held that it could not take judicial notice that, by simply changing
the trustee of a municipal park that excluded and discriminated against blacks, the
parks status immediately transformed from public to private. Id. at 301. But,
Evans is inapposite and simply does not stand for the proposition that
management of a city park is sufficient to show state action. (See Aplts. Br. at
34.)
41
Document: 01019450454
Page: 42
the ski resort and makes all of the business decisions, just like the 119 other ski
resorts on permitted land.
In sum, Appellants allegations are insufficientunder any analysisto
establish state action with respect to the promulgation and enforcement of Altas
Equipment Policy.
B.
SNOWBOARDERS ARE NOT A COGNIZABLE CLASS
Appellants have failed to allege a class cognizable by the Equal Protection

Clause. Appellants assert that [t]he District Court erroneously conducted its
analysis under the cautionary limitations that the Tenth Circuit has applied in classof-one cases. . . . These concerns are not present here, as Plaintiffs represent a
group of individuals that Defendants have classified based on illegitimate criteria
and excluded from the public property based on that classification. (See Aplts.
Br. at 45 n.8; see also id. at 36 n.6.) Appellants are wrong. The District Court
correctly applied the Courts class-of-one precedent in this case because
snowboarders do not constitute a discrete and identifiable class.
1.
Snowboarders Do Not Constitute a Discrete and Identifiable

Group Protected by the Equal Protection Clause
[E]qual protection jurisprudence has typically been concerned with

governmental classifications that affect some groups of citizens differently than
others. Engquist, 553 U.S. at 601; see also Corey Airport Servs., Inc. v. Clear
Channel Outdoor, Inc., 682 F.3d 1293, 1296 (11th Cir. 2012) (per curiam) (Equal
42
Document: 01019450454
Page: 43
protection jurisprudence is typically concerned with governmental classification

and treatment that affects some discrete and identifiable group of citizens
differently from other groups.). Thus, [d]efining an identifiable group that has
been discriminated against is critical to establishing a claim under the Equal
Protection Clause. Corey, 682 F.3d at 129697.
The notion of a cognizable class includes two separate and distinct
components. Aulson v. Blanchard, 83 F.3d 1, 4 (1st Cir. 1996). The first
component focuses on the substantive characteristic defining the class, e.g., race or
gender or political affiliation. Id. The second component, by contrast, focuses
not on the particular defining characteristic of the putative class, but on whether
there is any identifiable class at all. Id. at 5. However, a class cannot be defined
solely on the basis of harm inflicted. Id. Thus, [t]he principle that emerges . . .
is that a class, to be cognizable, must be identifiable by reference to something
more than . . . [the members] desire to engage in [certain] conduct that the . . .
defendant disfavors. Id. In other words, the line drawn by the substantive
characteristic must divide individuals into distinct, separate, and identifiable
groups. Id. For this purpose, distinctiveness connotes that a reasonable person
43
Document: 01019450454
Page: 44
can readily determine by means of an objective criterion or set of criteria who is a

member of the group and who is not. Id. at 56.9
Here, Appellants alleged two potential definitions for the identifiable
group referred to as snowboarders. First, Appellants allege that
snowboarders are people who wear snowboards. (See Aplts. App. at JA-11 3
n.1.) Second, Appellants allege that snowboarders are people characterized by
intangible traits and who self-identify with a certain counterculture who Altas
ownership, management, and customers believe to participate in snowboarding.
(See id. at JA-11 3 n.1, JA-17 3233.) Neither of these alleged groups,
however, is sufficiently discrete or identifiable to constitute a cognizable class.
a. People who choose to wear a snowboard.
Anyone can wear a snowboardfrom those persons who exhibit the alleged
intangible traits of a snowboarder, to the self-proclaimed skier who decides to
try out a snowboard, to the small child taking a first snowboarding lesson. In fact,
the recent trend is for skiers and snowboarders to use both devices, particularly
self-proclaimed snowboarders.10 Under this definition, one might be a
See also Bray v. Alexandria Womens Health Clinic, 506 U.S. 263, 269 (1993);
United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 850 (1983)
(Blackmun, J., dissenting).
10
See Number of People Both Skiing and Snowboarding Keeps Increasing
Nationwide, Examiner.com (Feb. 11, 2012, 3:50 PM),
http://www.examiner.com/article/ number-of-people -both- skiing-andsnowboarding-keeps-increasing-nationwide (last visited May 7, 2015) (Most
44
Document: 01019450454
Page: 45
snowboarder one minute, and a skier the nextencompassing an everchanging group of individuals. See LaManque v. Massachusetts Dept of Empt
& Training, 3 F. Supp. 2d 83, 92 (D. Mass. 1998).
What results is an impermissibly vague and overbroad classification.
Anyone can be a snowboarder at any given time. See, e.g., id. (As so defined,
the class of whistleblowers is virtually without limits. It would include an everchanging group of individuals, from the child who reports to his or her parent that
a sibling has taken cookies from the cookie jar without permission, to the person
who exposes billions of dollars of fraud and waste in a government agency. . . .
Therefore, while whistleblowers might be said to meet the first Aulson inquiry, that
is, they are defined by [a] substantive characteristic, namely whistleblowingthey
fail the second inquiry, in that they do not constitute an identifiable class at all.).
Therefore, as in LaManque, because nearly everyone in America could be a
snowboarder, the alleged class lacks discrete boundaries and is unidentifiable.
snow sport enthusiasts typically either ski or snowboard. However, the gap is
narrowing for the number of people who now do both. Industry groups estimate
there were 7.4 million to 11.5 million skiers in 2010, with a quarter of them also
snowboarding at least once that year. Similarly, about a third of the 6.1 million to
8.1 million snowboarders also skied at least once. The change is primarily by
snowboarders, who have discovered they can do more tricks with two boards on
their feet than one, according to a recent story by the Vail Daily. Skis allow for
more tricks in the pipes, and also provide more backcountry accessibility, where
flat terrain frustrates most boarders.).
45
Document: 01019450454
Page: 46
b. People with certain intangible traits who self-identify as part

of an alleged counterculture.
Likewise, defining snowboarders as a group of people characterized by
alleged intangible traits and who self-identify as members of a certain
counterculture whom Altas ownership, management, and customers believe to
participate in snowboarding is insufficient. First, this alleged class fails because
Appellants define it as Altas alleged discriminatory conduct in excluding people
because of their identity as snowboarders, (see Aplts. Br. at 41 (Plaintiffs
alleged that whether a device is prohibited by Alta depends on the identity of the
individual using it.)). See Farber v. City of Paterson, 440 F.3d 131, 138 n.6 (3d
Cir. 2006) ([T]his definitional ploy does not[hing] more than define the wouldbe class . . . as those seeking to engage in the activity the defendant has interfered
with.).
Second, Appellants definition of the alleged class by reference to intangible
traits and membership in an alleged counterculture is so subjectively defined and
wholly indeterminate that [t]here is simply no way to characterize [it] as an
identifiable segment of the community by reference to any objective criteria. Id.
at 138. For a group to qualify properly as identifiable for the purposes of an
Equal Protection Clause claim, substantive group characteristics must pop out that
allow us to separate readily entities or people into discrete groupings and clearly
identify those persons that suffered the alleged discrimination and those persons
46
Document: 01019450454
Page: 47
that did not. Corey, 682 F.3d at 1297. But, [n]o objective criteria plainly fix
whether a person is a snowboarder. See id. at 1298 (The most one can hope
for in separating persons based on such subjective criteria . . . would be a spectrum
or a fuzzy series of wholly indeterminate and overlapping groups each of which
would be inadequate to qualify as identifiable for purposes of an Equal Protection
Clause claim.). As in Aulson, membership in [Appellants] proposed class [of
snowboarders] and the antagonist class ([of non-snowboarders]) is, like
beauty, almost exclusively in the eye of the beholder. This is not the stuff of
cognizability. See Aulson, 83 F.3d at 6.11
The Court should apply Coreys reasoning:
Corey does not offer sufficient substantive group
characteristics. Instead, Corey attempts to identify
groups based on affiliation or connection to the City, the
supposed discriminator: insiders and outsiders. This
vague category is inadequate because these idea-based
characteristics do not allow us to separate readily people
and entities into discrete groupingsa necessary part of
identifying the group that suffered the alleged
discrimination. The proposed categories are too loose,
too shifting to be useful to courts.
Corey, 682 F.3d at 1298.
11
See also Farber, 440 F.3d at 137 (Simply put, some groups, particularly those
deemed to be distinguishable from others by immutable characteristics, such as
African-Americans, women, and the mentally retarded, are so clearly accepted as
objectively identifiable that no extended analysis is needed. As the Court in Bray
demonstrated, however, it is not always a simple matter, particularly when what is
at issue is a putative class defined, as here, by mutable characteristics such as
opinion or conduct.).
47
Document: 01019450454
Page: 48
In reality, Corey is defining the class discriminated

against as simply the group of individuals allegedly
unfairly treated by Defendants: a kind of tautological
equating of cause and effect. This characteristic alone
cannot support properly an Equal Protection Clause
claim. For a group to qualify properly as identifiable for
purposes of a group-based discrimination claim, the
group must be identifiable by some common set of traits
that reach beyond simply . . . sharing a desire to do
something which the allegedly discriminating party does
not want them to do . . . .
Id. Thus, snowboarders cannot be properly identifiable by sharing a desire to
do something which the allegedly discriminating party does not want them to do.
See id. Otherwise, any group dissatisfied with any equipment policyor any other
rule for that mattercould claim to be a class and bring an equal protection
claim.
Because Appellants have failed to allege a discrete and identifiable class of
snowboarders, Appellants claim must proceed under a class-of-one framework.
2.
Engquists Reasoning Bars Appellants Challenge
Under a class-of-one framework, Engquist is applicable and dictates that

Appellants claim should be barred. The Court has approached class-of-one
claims with caution, wary of turning even quotidian exercises of government
discretion into constitutional causes. Kansas Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1216 (10th Cir. 2011). This risk was discussed in Jennings v. City of
Stillwater, 383 F.3d 1199 (10th Cir. 2004):
48
Document: 01019450454
Page: 49
[T]he concept of a class-of-one equal protection claim

could effectively provide a federal cause of action for
review of almost every executive and administrative
decision made by state actors. It is always possible for
persons aggrieved by government action to allege, and
almost always possible to produce evidence, that they
were treated differently from others, with regard to
everything from zoning to licensing to speeding to tax
evaluation. It would become the task of federal courts
and juries, then, to inquire into the grounds for
differential treatment and to decide whether those
grounds were sufficiently reasonable to satisfy equal
protection review. This would constitute the federal
courts as general-purpose second-guessers of the
reasonableness of broad areas of state and local
decisionmaking: a role that is both ill-suited to the federal
courts and offensive to state and local autonomy in our
federal system.
Id. at 121011.
Here, the Court should avoid turning Altas quotidian private business
decisionsfrom what devices may be used on Altas slopes, to the gifts sold in
Altas gift shop, to the food served in Altas restaurantsinto constitutional cases.
As the District Court held: [T]he reasoning of Engquist that pertained to public
employment should be applied to the governments plenary power to make
discretionary decisions regarding the management of public lands. (Aplts. App.
at JA-422.)
Engquist held that there is a crucial difference, with respect to
constitutional analysis, between the government exercising the power to regulate
or license, as lawmaker and the government acting as proprietor, to manage [its]
49
Document: 01019450454
Page: 50
internal operation. Engquist, 553 U.S. at 598. There, the Supreme Court held
that because the government acts as a proprietor in its role as an employer, the
government enjoys far broader powers than [it] does . . . as sovereign. Id. This
reasoning has since been applied outside the context of the government acting as
an employer. See, e.g., Flowers v. City of Minneapolis, 558 F.3d 794, 799800
(8th Cir. 2009); Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th Cir.
2008); United States v. Moore, 543 F.3d 891, 89899 (7th Cir. 2008).
Importantly, the Supreme Court has determined that, pursuant to the
Property Clause, the government is the proprietor of public lands, with all the
rights of an ordinary proprietor. See Light v. United States, 220 U.S. 523, 53637
(1911). Thus, the federal government is required to make individualized
assessments as to which lands it should make available for mineral leasing, which
lands should be free from roads or motorized use, which lands allow hunting and
fishing, and which lands should preclude them. (Aplts. App. at JA-421.) Not
only does the [federal government] make individualized assessments about the
general types of activities that may occur on federal land, but the [federal
government] also decides to allow or exclude certain activities within [a] specific
area of land. (Id.) This includes making decisions as to permissible recreational
activities on public land. (See, e.g., id. (discussing restrictions on fishing and the
50
Document: 01019450454
Page: 51
types of fishing allowed); id. at JA-350 (discussing restrictions on use of mountain

bikes, motorcycles, and four-wheelers).)
Even if it were a product of state action, Altas Equipment Policy is no
different than other discretionary decisions made regarding the use and enjoyment
of public lands. In light of this, the District Court correctly determined that
allowing claims like Appellants to proceed would turn even quotidian exercises
of government discretion into constitutional causes, and would improperly
constitute the federal courts as general-purpose second-guessers of the
reasonableness of a broad area of land-use decisionmaking, which the
Constitution vests in Congress and which Congress has delegated to the Executive
Branch. (See id. at JA-423.) The Court should likewise hold that Appellants
class-of-one equal protection claim is barred.12
12
Appellants argue that Engquist does not apply because the Forest Service is
simply acting as a licensor or regulator. (See Aplts. Br. at 3540.) Appellants
cannot have their cake and eat it too. If, as Appellants now admit, the Forest
Service is only acting as a licensor or regulator, their case clearly fails as there is
no state action. See supra Part II.A; see also Jackson, 419 U.S. at 346, 35051
(holding issuance of certificate of public convenience is insufficient to establish
state action and stating [t]he mere fact that a business is subject to state regulation
does not by itself convert its action into that of the State for purposes of the
Fourteenth Amendment); United Auto Workers, Local No. 5285 v. Gaston
Festivals, Inc., 43 F.3d 902, 910 (4th Cir. 1995) (The possession of a permit to
perform on public property what are ordinarily private functions does not convert
the permit holder into a state actor.); Watson v. Kenlick Coal Co., 498 F.2d 1183,
119293 (6th Cir. 1974) ([W]e hold that the issuance of a permit to strip mine to a
private coal company . . . is not such state action . . . .).
51
Document: 01019450454
Page: 52
In response, Appellants argue that affirming the District Courts ruling

would turn existing precedent on its head and create conflicting law, decrying a
parade of horribles which would entirely preclude equal protection claims from
judicial review. (See Aplts. Br. at 3840.) However, in Engquist, the Supreme
Court addressed this concern: Of course, that is not to say that the Equal
Protection Clause, like other constitutional provisions, does not apply to public
employers. Indeed, our cases make clear that the Equal Protection Clause is
implicated when the government makes class-based decisions in the employment
context, treating distinct groups of individuals categorically different. Engquist,
553 U.S. at 605; see also id. at 59596 (stating petitioner brought claims alleging
violations of federal antidiscrimination statutes, the Equal Protection and Due
Process Clauses of the Fourteenth Amendment, and state law). This express
recognition by the Supreme Court eviscerates Appellants specious assertion that
Burton would have been precluded from review under the District Courts holding.
(See Aplts. Br. at 39.) In fact, Burton would still be a viable claim because it was a
class-based (race) equal protection claim, not a class-of-one claim. See Engquist,
553 U.S. at 605; Burton, 365 U.S. at 716.
C.
ALTAS EQUIPMENT POLICY TREATS ALL PERSONS ALIKE
Another fatal flaw in Appellants case is that they fail to plausibly allege that
similarly situated persons are not treated alike. As discussed supra Part I.B, Altas
52
Document: 01019450454
Page: 53
Equipment Policy treats all persons equally. In fact, [Appellants] [have]

concede[d] that they are welcome at Alta so long as they, just like sledders and
snowshoers, or any other person, abide by the skiers-only policy. There is no ban
against [Appellants] as people . . . . (Aplts. App. at JA-429.)
D.
RATIONAL BASES SUPPORT ALTAS EQUIPMENT POLICY
Appellants challenge does not implicate a suspect class or fundamental

right, therefore the Court must apply rational basis scrutiny. Teigen, 511 F.3d at
1083. Under this standard, th[e] [C]ourt [must] uphold a government
classification if it is rationally related to a legitimate government purpose or
end. Id. An equal protection claim will fail if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification.
Id. That is, Appellants must negate every reasonably conceivable rational basis for
Altas Equipment Policywhich they have failed to do. See FCC v. Beach
Commcns, Inc., 508 U.S. 307, 31415 (1993).
1.
Appellants Have Misstated their Legal Burden
Initially, it is important to note that Appellants have misconstrued their

burden in at least three ways: Appellants (1) argue the mere allegation that
something is irrational is binding on courts; (2) disregard the additional rational
bases relied on by the District Court; and (3) rely on the inapplicable animus
doctrine.
53
Document: 01019450454
Page: 54
First, under Appellants faulty construction, simply alleging there is no

rational basis supporting Altas Equipment Policy is sufficient to satisfy their
burden. Appellants argue: Notwithstanding Plaintiffs allegations that the
justifications offered by Defendants are false, irrational, and pretext for animus, the
District Court erroneously concluded that the Complaint failed to present a
plausible claim, and that it actually does the opposite. (See Aplts. Br. at 42; see
also id. at 4244.) Essentially, Appellants argue that by simply alleging that there
is no rational basis for Altas Equipment Policy, the Court must accept that legal
conclusion as true. That is incorrect.
As recognized by the District Court: Twombly and Iqbal make it clear that
[Appellants] are required to plead sufficient facts to make their legal claims
plausible rather than simply conceivable. Those cases also make clear that
allegations that are merely conclusory will not be allowed to advance a proposition
for which there is insufficient factual support. (Aplts. App. at JA-425.) See also
Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 67879. Whether something
constitutes a rational basis is a legal conclusion that courts are entitled to determine
as a matter of law, notwithstanding contrary conclusory allegations.
Second, Appellants disregard that the District Court held certain rational
bases supported Altas Equipment Policy that were not the subject of Appellants
conclusory allegations:
54
Document: 01019450454
Page: 55
Alta and the [Forest Service] present other rational

reasons for the decision to ban snowboards in their briefs,
such as a desire to provide unique kinds of recreational
experiences on Forest Service property, under a multiple
use policy, but the court need look no further than the
Complaint and simple common sense to find that
[Appellants] have failed to plead a plausible claim for
relief under the rational basis standard.
(Aplts. App. at JA-426JA-427.) Even under Appellants erroneous construction,
the District Courts decision makes clear that Appellants failed to negate every
reasonably conceivable rational basis for Altas Equipment Policy.
Finally, Appellants have attempted to make the animus doctrine do all the
work. However, as discussed infra Part II.E, the District Court correctly declined
to apply the animus doctrine.
2.
Appellants Have Failed to Negate Every Reasonably

Conceivable Rational Basis for Altas Equipment Policy
Appellants have failed to satisfy their burden to negate every reasonably

conceivable state of facts that could provide a rational basis for the classification.
Beach Commcns, 508 U.S. at 313. Where there are plausible reasons for
Congress action, [the Courts] inquiry is at an end. Id. at 31314. Moreover,
because [the Court] never require[s] a legislature to articulate its reasons for
enacting a statute, it is entirely irrelevant for constitutional purposes whether the
conceived reason for the challenged distinction actually motivated the legislature.
Id. at 315. In other words, a legislative choice is not subject to courtroom fact55
Document: 01019450454
Page: 56
finding and may be based on rational speculation unsupported by evidence or

empirical data. Id. In fact, [t]he assumptions underlying these rationales may be
erroneous, but the very fact that they are arguable is sufficient, on rational-basis
review, to immuniz[e] the congressional choice from constitutional challenge.
Id. at 320.
Here, the District Court correctly determined that numerous rational bases
support Altas Equipment Policy:
(1)
Altas chosen business model caters to a skier-only market, (Aplts.
App. at JA-426);
(2)
Alta believes its terrain is not conducive to snowboarders, (id.);
(3)
Surveys have confirmed to Alta that a large number of skiers prefer
Alta because of its business model to prohibit snowboards, (id.);13

(4)
Businesses in and surrounding Alta support a skiers only destination
at Alta, (id.);
13
Appellants assert Alta has . . . publicly admitted it would make more money if
it allowed snowboarders, and [a] business interest in losing money simply to
exclude a certain group of people from public land shows the Ban lacks a rational
basis. (Aplts. Br. at 43.) This is false. As support, Appellants cite a hearsay
statement allegedly made by Bill Leavitt, former Alta Town Mayor and owner of
the Alta Lodge. (Id. (citing Aplts. App. at JA-26 79).) Importantly, Mr. Leavitt
and Alta Lodge are not associated with Appellee Alta Ski Lifts Company. But
regardless, this quote simply establishes that there was a determination that 94
percent of their loyal guests preferred a skier-only destination. (See Aplts. App. at
JA-26 79.) This quote supports the rational basis that Altas chosen business
model caters to a skier-only market. (See id. at JA-426.)
56
(5)
Document: 01019450454
Page: 57
Snowboarders have a different blind spot than skiers and
snowboarders face differently than skiers, both of which cause concern about
safety.14 This is based, among other anecdotes provided in the Complaint, on
skiers claims that snowboarders cut you off, and get in the way, and that
without snowboards the entire experience was more peaceful, safe, and
enjoyable,15 (id.);
(6)
Snowboarders attack the snow differently than skiers . . . [w]hereas
skiers ski around moguls, snowboarders cut them off, (id.); and
(7)
The Forest Service desire[s] to provide unique recreational
experiences on Forest Service property, under a multiple use policy, (id.).

14
Appellants state: It is . . . astonishing that the Government claims [Altas

Equipment Policy] is justified by safety concerns while allowing snowboards at
119 other resorts operating on public land under similar permits. (Aplts. Br. at
44.) However, this need not divert the Courts attention. Rational basis scrutiny
does not subject the Forest Services alleged choice . . . to courtroom factfinding, rather such a review may be based on rational speculation unsupported
by evidence or empirical data. Beach Commcns, 508 U.S. at 315.
15
Appellants assert they consistently alleged and disputed any purported blind
spot, . . . [a]nd, Defendants self-serving and conclusory assertions cannot
establish such a legitimate governmental interest given the procedural posture of
the Motions. (Aplts. Br. at 4344.) This is incorrect, and another example of
Appellants attempting to diminish their burden. The Supreme Court has stated:
[I]t is the very admission that the facts are arguable that immunizes from
constitutional attack the congressional judgment represented by this statute: It
makes no difference that the facts may be disputed . . . . Vance v. Bradley, 440
U.S. 93, 112 (1979). Here, according to Appellants, some of Altas guests may
believe there is a blind spot implicating safety. That Alta may have allegedly taken
these concerns into consideration renders this justification arguable, at a minimum,
and thus immunizes it from attack. See id.
57
Document: 01019450454
Page: 58
Appellants have failed to negate these rational bases, much less every other
reasonably conceivable rational basis which simple common sense illustrates.
Plain and simple, Alta has a unique niche business model that provides a skiingonly experience. There are no snowbikes, snowtrikes, snowboards, kitewings,
sleds, innertubes, or other devicesonly skiing. That is Altas successful business
model. It is impossible that this deliberate and well-thought-out business decision
does not constitute a rational basis.
In sum, there are plausible rationales for [Altas Equipment Policy]
challenged by [Appellants] in this case. It could be that [t]he assumptions
underlying these rationales [are] erroneous, but the very fact that they are
arguable is sufficient, on rational-basis review, to immunize [Altas Equipment
Policy] from constitutional challenge. See Heller v. Doe, 509 U.S. 312, 333
(1993).
E.
ANIMUS IS IRRELEVANT; BUT REGARDLESS, ALTAS EQUIPMENT

POLICY IS NOT BASED ON ANIMUS
Knowing there is no constitutional right to snowboard, Appellants seek

sanctuary for their meritless claim by invoking the doctrinal silver bullet of
animus. See Susannah W. Pollvogt, Unconstitutional Animus, 81 Fordham L. Rev.
887, 889 (2013). However, animus cannot save Appellants baseless claim.
As the District Court held, under this Courts controlling precedent, animus
is inapposite where a rational basis exists; but regardless, Appellants have failed to
58
Document: 01019450454
Page: 59
plausibly allege any animus that can be attributed to the Forest Service, even under
Judge Holmes concurrence in Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014).
1.
Animus is Irrelevant
Despite Appellants contrary wish, this Courts binding precedent holds that
animus is irrelevant if a rational basis exists. The District Court held that
if there is an independent basis (other than animus) to
support a finding of rational basis it does not matter for
Equal Protection Clause analysis purposes that animus
may also have influenced the decision. The requirement
under the law is that there is some rational basis for the
action taken, not that there is an absence of animus.
(Aplts. App. at JA-428 (internal citation omitted).) Appellants take issue with this
holding, declaring that it is not the law, (see Aplts. Br. at 4546); but, Appellants
are just wrong.
In fact, Appellants fail to mentionor even acknowledge the existence of
the cases cited by the District Court to support its holding that animus is irrelevant.
(Compare Aplts. Br. at 4550 (failing to cite Powers v. Harris, 379 F.3d 1208
(10th Cir. 2004), and Flying J, Inc. v. City of New Haven, 549 F.3d 538 (7th Cir.
2008)), with Aplts. App. at JA-428 (relying on Powers and Flying J).) Appellants
avoidance of this Courts precedent is telling.
In Powers, the Court stated: Despite the hue and cry from all sides, no
majority of the Court has stated that the rational-basis review found in Cleburne
and Romer . . . differs from the traditional variety applied above. Id. (internal
59
Document: 01019450454
Page: 60
footnote omitted). The Court continued: Perhaps, after considering all other
conceivable purposes, the Romer and Cleburne Courts found that a bare . . . desire
to harm a politically unpopular group, constituted the only conceivable state
interest in those cases. Id. at 1224 (quoting Dept of Agric. v. Moreno, 413 U.S.
528, 534 (1973) (internal citations omitted). On this basis, the Court held that
[u]nder this reading, Cleburne would . . . not apply here because [the Court] ha[d]
conceived of a legitimate state interest other than a bare desire to harm. Id.
Thus, Tenth Circuit precedent provides that if a rational basis exists, other
than a bare desire to harm, animus is irrelevant. See id.; see also Flying J, 549
F.3d at 547 (It is only when courts can hypothesize no rational basis for the action
that allegations of animus come into play.).16 Therefore, because rational bases
exist for Altas Equipment Policy, animus is irrelevant. See supra Part II.D.
Appellants only argument that animus is relevant finds its basis in Judge
Holmes recent concurrence in Bishop. As discussed infra Part II.E.4, however,
16
Animus is also irrelevant because Appellants have failed to plausibly allege that
snowboarders constitute a historically unpopular group[]. See Powers, 379
F.3d at 1224. Appellants cannot plausibly allege that snowboarders occupy a
similar historical unpopularity as homosexuals, see United States v. Windsor, 133
S. Ct. 2675, 2682 (2013); Lawrence v. Texas, 539 U.S. 558, 562 (2003); Romer v.
Evans, 517 U.S. 620, 62324 (1996); mentally retarded individuals, see Cleburne,
473 U.S. 432, 435 (1985); or even hippies, see Moreno, 413 U.S. at 53435. This
is particularly the case in light of Appellants allegations regarding the popularity
and general acceptance of snowboarding. (See Aplts. App. at JA-18JA-19 36
42.) Thus, the lone fact that snowboarders are not a historically unpopular
group[] is sufficient to render animus irrelevant. See Powers, 379 F.3d at 1224.
60
Document: 01019450454
Page: 61
Judge Holmes concurrence does not help Appellants. But regardless, such
authority is insufficient: One panel of the court[, much less a concurrence
authored by a single judge,] cannot overrule the decision of another panel in the
absence of en banc reconsideration or an intervening decision of the United States
Supreme Court. See Starzynski v. Sequoia Forest Indus., 72 F.3d 816, 819 (10th
Cir. 1995).
2.
No Alleged Animus Can be Attributed to the Forest Service
Laying the irrelevance of animus aside, there is no alleged animus that could
be attributed to the government. Each of the animus cases Appellants rely on dealt
with a situation involving clear state action: i.e., enacting legislation or a
constitutional amendment. See, e.g., Windsor, 133 S. Ct. at 2682 (enacting the
federal Defense of Marriage Act); Lawrence, 539 U.S. at 56263 (enacting Texas
sodomy statute); Romer, 517 U.S. at 62324, 635 (adopting Colorado
constitutional amendment through statewide voter referendum to make
homosexuals unequal to everyone else); Cleburne, 473 U.S. at 435 (enacting
municipal zoning ordinance excluding homes for mentally retarded individuals
based on irrational fears of neighboring property owners); Moreno, 413 U.S. at
529, 53435 (enacting federal legislation to prevent hippies from receiving food
stamps); Bishop, 760 F.3d at 1074 (enacting Oklahomas constitutional same-sex
marriage ban); Animal Legal Def. Fund v. Otter, 44 F. Supp. 3d 1009, 1014 (D.
61
Document: 01019450454
Page: 62
Idaho 2014) (enacting Idaho ag-gag law). Thus, importantly, the animus at issue
infected the lawmaking process and was fairly attributable to the state.
In contrast, Appellants have not alleged any animus that could be attributed
to the Forest Service. (See Aplts. App. at JA-24 72.) If anything, they have
alleged the opposite. (See, e.g., id. at JA-22 59 (Numerous other resorts operate
on federal land under similar permits, including other resorts in Utah, such as
Snowbird and Brighton. All of these resorts allow snowboarders.); id. at JA-170
n.1 ([C]oincidentally at the same time the [Forest Service] was pressuring Aspen
ski resort to lift a similar snowboarding ban.); id. at JA-206; id. at JA-371.) In
fact, Appellants have not even alleged the Forest Service had knowledge of any
alleged private animus toward snowboarders. (See generally id. at JA-11JA35.)
Importantly, the Fourteenth Amendment erects no shield against merely
private conduct, however discriminatory or wrongful. Blum, 457 U.S. at 1002.
This begs a novel question that must be decided before the Court could accept
Appellants animus argumentsWhen can private animus be attributed to the
state, potentially running afoul of the Equal Protection Clause? Alta asserts that, if
the Court were to reach this issue, traditional state action analysis should determine
whether private animus is fairly attributable to the state. See id. at 1004.
62
Document: 01019450454
Page: 63
Such an approach would require that [t]he complaining party . . . show that
there is a sufficiently close nexus between the State and the [private animus] so
that the [private animus] may be fairly treated as that of the State itself. See id.
This would assure that [animus is] invoked only when it can be said that the State
is responsible for the specific [private animus] of which the plaintiff complains.
The importance of this assurance is evident when, as in this case, the complaining
party seeks to hold the State liable for the [animus] of private parties. See id.
The Supreme Court has taken this approach in an analogous case under the
Fourteenth Amendment. In City of Cuyahoga Falls v. Buckeye Community Hope
Foundation, 538 U.S. 188 (2003), the Supreme Court considered whether private
discriminatory intentsimilar to the private animus alleged herecan be
attributed to the state. Id. at 19598. In that context, the Supreme Court stated:
[T]o establish discriminatory intent, respondents and the
Sixth Circuit both rely heavily on evidence of allegedly
discriminatory voter sentiment. But statements made by
private individuals in the course of a citizen . . . petition
drive, while sometimes relevant to equal protection
analysis, do not, in and of themselves, constitute state
action for the purposes of the Fourteenth
Amendment. Moreover, respondents put forth no
evidence that the private motives [that] triggered the
referendum drive can be fairly attributed to the State.
Id. at 19596 (internal citations omitted). Since the Supreme Court has held that a
traditional state action analysis must be applied to determine whether private
motives can be attributed to the state under a Fourteenth Amendment analysis, the
63
Document: 01019450454
Page: 64
same approach would apply in determining whether private animus can be

attributed to the state.
Here, Appellants complaint is devoid of any suggestion that the Forest
Service had knowledge of Altas alleged private animus, much less that the Forest
Service itself harbors any animus toward snowboarders. (See, e.g., Aplts. App.
at JA-22 59; id. at JA-170 n.1; id. at JA-206; id. at JA-371.) As the District
Court stated: [T]here are some 120 ski areas operating on United States Forest
Service lands in the United States. One hundred nineteen allow snowboards. One
(Alta) does not. The Forest Service had nothing to do with the decision of the 119
to permit snowboards and nothing to do with Altas decision otherwise. (Id. at
JA-412.)
For the reasons discussed here, as well as supra Part II.A, there is no private
animus that is fairly attributable to the Forest Service.
3.
Appellants Have Not Plausibly Alleged any Animus Toward

Snowboarders
Even if animus were relevant and could be attributed to the Forest Service,
Appellants have not plausibly alleged any animus toward snowboarders. The
District Court correctly held:
[E]ven if Plaintiffs allegations of animus were relevant,
the court nevertheless finds them inadequate under
Twombly and Iqbal. First, the allegations consist almost
entirely of anecdotes based on second and third-hand
hearsay from YouTube videos and the like, with virtually
64
Document: 01019450454
Page: 65
no direct evidence linking Altas decision-makers to the

alleged animus, hardly the kind of evidence necessary to
present a plausible case. Second, it is undeniable that
Altas snowboard policy bans only snowboards from
Alta, not people. It is an equipment restriction only.
[Appellants] concede that they are welcome at Alta so
long as they, just like sledders and snowshoers, or any
other person, abide by the skiers-only policy. There is no
ban against [Appellants] as people, even if, as Plaintiffs
allege, Altas management personnel finds, or at one time
found, them to have undesireable personal
characteristics.
(Id. at JA-429.)
Despite Appellants contrary argument, the Court should not accept as true
Appellants conclusory allegations that [Altas Equipment Policy] was motived
[sic] not by any legitimate government interest but solely by animus held by
Altas ownership, management, and customers towards the type of people they
believed to be snowboarders, (see Aplts. Br. at 5052). See Twombly, 550 U.S. at
555; Teigen, 511 F.3d at 1078. Regardless, Appellants allegations are not
plausible because Appellants complaint is devoid of any allegation that a
snowboarder who comes to Alta wearing skis is not permitted to access and
otherwise enjoy Altas slopesirrespective of Altas alleged animus toward such
persons. To be sure, if they came to Alta, purchased an Alta lift ticket, and used an
approved device, Appellants would be free to access and enjoy Altas slopes. (See
Aplts. App. at JA-429.) Appellants have conceded as much. (See id.)
65
4.
Document: 01019450454
Page: 66
Judge Holmes Concurrence Does Not Help Appellants
Finally, Judge Holmes concurrence in Bishop is not binding precedent and

need not be considered. See supra Part II.E.1. Regardless, Judge Holmes animus
framework is inapplicable here because it applies only to allegations of legislative
animusnot private animus. Judge Holmes specifically stated: What is important
is to know when and how to conduct [the animus] analysis. . . . [T]he hallmark of
animus jurisprudence is its focus on actual legislative motive.17 See Bishop, 760
F.3d at 1099. That is, it is important to clarify exactly what types of legislative
motive may be equated with animus. Id. Appellants interpretation of the animus
doctrine strays far from the jurisprudential framework enunciated by Judge
Holmes, and would require the Court to not only overrule prior precedent, see
supra Part II.E.1, but also expand Judge Holmes framework into the novel arena
of private animus and agency action. This would work a significant expansion in
the animus doctrine, going further than the Supreme Court has ever ventured.
It is also important to note that Judge Holmes emphasized that the district
court was correct in not applying the animus doctrine in deciding the
constitutionality of Oklahomas same-sex marriage ban. See Bishop, 760 F.3d at
17
The emphasis on legislative motive underscores the important concept that

private animus cannot be attributed to the Forest Service. See supra Part II.E.2;
see also Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 549 (3d Cir. 2011) ([N]o
case in [the Supreme] Court has held that a legislative act may violate equal
protection solely because of the motivations of the men who voted for it.).
66
Document: 01019450454
Page: 67
109697 (Holmes, J., concurring) (I write here, however, to focus on one

significant thing that the district court wisely did not do in rendering its substantive
ruling on the same-sex marriage ban. Specifically, the district court declined to
rely upon animus doctrine in striking down SQ 711.). Taking a step back, it is
significant that Appellants here suggest the Court should rely on the animus
doctrine with respect to Altas Equipment Policy, when Judge Holmes determined
animus should not apply to same-sex marriage bans.
CONCLUSION
For the foregoing reasons, the Court should affirm the District Courts
decision dismissing Appellants complaint for failure to state a claim for which
relief may be granted.
DATED this 25th day of June, 2015.
Respectfully submitted,
/s/ Frederick R. Thaler
Frederick R. Thaler
Robert O. Rice
Calvin R. Winder
(801) 532-1500
1326957
67
Document: 01019450454
Page: 68
STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Tenth Circuit Rule 28.2(C)(4), Alta Ski Lifts Company hereby
requests oral argument to further demonstrate that this case lacks merit and that the
Court should affirm the District Courts decision.
68
Document: 01019450454
Page: 69
CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of June, 2015, the foregoing
RESPONSE BRIEF OF APPELLEE ALTA SKI LIFTS COMPANY (Oral
Argument Requested) was filed using the Courts CM/ECF system which will
send notification of such filing to the following:
Jonathan R. Schofield
Michael S. Anderson
Rachel L. Wertheimer
PARR BROWN GEE & LOVELESS
101 South 200 East
Suite 700
Attorneys for Appellants
Jared C. Bennett
OFFICE OF THE UNITED STATES ATTORNEY
DISTRICT OF UTAH
185 South State Street
Room 300
Attorneys for Appellees United States Forest Service and David Whittekiend
Frederick R. Thaler
Robert O. Rice
Calvin R. Winder
(801) 532-1500
1326957
69
Document: 01019450454
Page: 70
CERTIFICATE OF COMPLIANCE
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:
this brief contains 13,870 words, 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:
this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in 14 point font size and Times New Roman font
style.

Frederick R. Thaler
Robert O. Rice
Calvin R. Winder
(801) 532-1500
1326957
70
Document: 01019450454
Page: 71
CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing:
1.
All required privacy redactions have been made pursuant to 10th Cir. R.
25.5;
2.
if required to file additional hard copies, 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 12.1.4100.4126), and according to the program are free
of viruses.

Frederick R. Thaler
Robert O. Rice
Calvin R. Winder
(801) 532-1500
1326957
71

Alta Response To Wasatch Equality Utah

Diunggah oleh

Informasi Dokumen

Judul Asli

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

Alta Response To Wasatch Equality Utah

Diunggah oleh

Hak Cipta:

Format Tersedia

Appellate Case: 14-4152

Date Filed: 06/25/2015

Appeal from the United States District Court

Appellate Case: 14-4152

Date Filed: 06/25/2015

CORPORATE DISCLOSURE STATEMENT

Appellate Case: 14-4152

Date Filed: 06/25/2015

ALTAS EQUIPMENT POLICY LIES OUTSIDE THE

THE EQUAL PROTECTION CLAUSE DOES NOT PROTECT

ALTAS EQUIPMENT POLICY TREATS ALL PEOPLE ALIKE ..........20

APPELLANTS CANNOT ESTABLISH THE ELEMENTS OF

ALTAS EQUIPMENT POLICY IS A PRIVATE BUSINESS

The State Action Inquiry Must Focus on Altas

Appellate Case: 14-4152

Date Filed: 06/25/2015

d. At most, the Forest Service was aware of Altas

Appellants Have Failed to Establish State Action

SNOWBOARDERS ARE NOT A COGNIZABLE CLASS ..................42

Snowboarders Do Not Constitute a Discrete and

Engquists Reasoning Bars Appellants Challenge ........48

ALTAS EQUIPMENT POLICY TREATS ALL PERSONS ALIKE........52

RATIONAL BASES SUPPORT ALTAS EQUIPMENT POLICY...........53

Appellants Have Misstated their Legal Burden .............53

Appellants Have Failed to Negate Every

ANIMUS IS IRRELEVANT; BUT REGARDLESS, ALTAS

Animus is Irrelevant .......................................................59

No Alleged Animus Can be Attributed to the

Appellate Case: 14-4152

Date Filed: 06/25/2015

Appellants Have Not Plausibly Alleged any

Judge Holmes Concurrence Does Not Help

Appellate Case: 14-4152

Date Filed: 06/25/2015

Appellate Case: 14-4152

Date Filed: 06/25/2015

Faust v. Parke, No. 3:96-CV-103RP, 1996 WL 698024 (N.D. Ind. Oct. 3,

Appellate Case: 14-4152

Date Filed: 06/25/2015

Romer v. Evans, 517 U.S. 620 (1996) ........................................................ 59, 60, 61

Appellate Case: 14-4152

Date Filed: 06/25/2015

Fed. R. App. P. 32(a)(5) ...........................................................................................70

Appellate Case: 14-4152

Date Filed: 06/25/2015

STATEMENT OF RELATED CASES

Whether the Equal Protection Clauses zone-of-interests encompasses Altas

Equipment Policy because it does not distinguish between persons?

is fairly attributable to the Forest Service?

Whether snowboarders constitute a discrete and identifiable class

protected by the Equal Protection Clause?

Whether Engquist v. Oregon Department of Agriculture, 553 U.S. 591

(2008), bars Appellants class-of-one challenge?

Appellate Case: 14-4152

Date Filed: 06/25/2015

Whether Altas Equipment Policy treats similarly situated persons

Whether Appellants negated every reasonably conceivable rational basis for

Altas Equipment Policy?

Whether alleged animus is relevant because rational bases support Altas

Whether alleged private animus can be attributed to the Forest Service?

Whether there is any plausible allegation of animus toward snowboarders?

Appellate Case: 14-4152

Date Filed: 06/25/2015