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Transcript of Wasatch Equality Alta Motion to Dismiss
8/12/2019 Wasatch Equality Alta Motion to Dismiss
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DAVID B. BARLOW, United States Attorney (#13117)CARLIE CHRISTENSEN, Assistant United States Attorney (#0633)JARED C. BENNETT, Assistant United States Attorney (#9097)
185 South State Street, #300Salt Lake City, Utah 84111Telephone: (801) 524-5682Attorneys for the United States of America────────────────────────────────────────────────────────────────
IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAHCENTRAL DIVISION
────────────────────────────────────────────────────────────────
WASATCH EQUALITY; RICK ALDEN;
DREW HICKEN; BJORN LEINES; ANDRICHARD VARGA,
Plaintiffs,
vs.
ALTA SKI LIFTS COMPANY, d.b.a. ALTASKI AREA; UNITED STATES FORESTSERVICE; and DAVID WHITTEKIEND,Wasatch-Cache National Forest Supervisor;
Defendants.
Civil No. 2:14CV26DB
MOTION TO DISMISS
Honorable Dee Benson
────────────────────────────────────────────────────────────────
Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), the United States Forest Service (“For est
Service”) and David Whittekiend (collectively “Federal Defendants”) move to dismiss Plaintiff’s
Complaint because this Court lacks subject matter jurisdiction and because Plaintiffs have failed to
state a claim on which relief can be granted. Specifically, this Court lacks subject matter
jurisdiction because the United States has not waived its sovereign immunity. Further, even
assuming a waiver of sovereign immunity, Plaintiffs have failed to state a claim under the Fifth
Amendment. Consequently, this Court should dismiss the Complaint with prejudice.
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STATUTORY AND R EGULATORY BACKGROUND
In 1986, Congress enacted the “National Forest Ski Area Permit Act” (“the 1986 Act”).
Pub. L. No. 99-522, §3 (1986), 100 Stat. 3000 (codified as 16 U.S.C. § 497b (1988)). This Act
authorized the Secretary of Agriculture (“the Secretary”) to issue ‘“ski area permits’ for the use
and occupancy of suitable lands within the National Forest System for nordic and alpine skiing
operations and purposes.” 16 U.S.C. § 497b(b) (1988) (emphasis added).
In 2011, Congress amended the 1986 Act by enacting the “Ski Area Recreational
Opportunity Enhancement Act” Pub. L. No. 112-46, 125 Stat. 538 (codified as 16 U.S.C. § 497b
(2012)), which authorized the Secretary to issue “‘ski area permits’ for the use and occupancy of
suitable lands within the National Forest System for skiing and other snow sports and recreational
uses authorized by this section.” 16 U.S.C. § 497b(b) (emphasis added). Both the 1986 and
2011 Acts established the following parameters, among others, on ski area permits:
[ski area permits] shall ordinarily be issued for a term of 40 years . . . shall
encompass such acreage as the Secretary determines sufficient and appropriate toaccommodate the permittee’s needs for ski operations and appropriate ancillaryfacilities . . . and shall be subject to a permit fee based on fair market value . . . .
Id . § 497b(b). Congress also mandated that the Secretary use a lengthy formula to determine the
ski area’s fair-market value “permit fee.” Id. § 497c(b)(1) (2012). In addition to a fee, ski area
permits also require permittees to submit an annual operating plan by November 15 of each year.
Forest Serv. Handbook 2709.14 (61.3). At a minimum, the annual operating plan must address:
(1) ski patrol and first aid; (2) communications; (3) signs; (4) general safety and sanitation; (5)
erosion control; (6) accident reporting; (7) avalanche control; (8) search and rescue; (9) boundary
management; (10) vegetation management; (11) designation of representatives; (12) trail routes
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for Nordic skiing; and (13) explosive magazine security. Id. Additionally, permittees must
indemnify the United States for claims that it may suffer as a result of the permittees’ use or
occupancy of National Forest System land. 36 C.F.R. § 251.56(d) (2013).
FACTUAL BACKGROUND
The Forest Service issued a 40-year ski area permit to Alta on October 25, 2002 (“the
Permit”) under the 1986 Act.1 Exhibit A. The Permit allowed Alta to operate on 1802.7 acres of
National Forest System land. ECF 2, ¶ 43; Exhibit A. The Permit also requires Alta to pay a
permit fee that is calculated pursuant to the congressionally-mandated formula. Exhibit A at 6-8.
Based on this formula, Alta has paid the United States permit fees in the amounts of $473,792.00;
$449,005.00; $471,440.00; and $304,396.00 for the years 2009 through 2012 respectively. ECF
No. 2, ¶ 56. Alta’s permit fee— which represents a percentage of revenue from all of its sources
of income — amounts to less than 0.1% of the Forest Service’s annual budget. See, e.g., Pub. L.
No. 112-10, §§ 1741 to 1747 (appropriating over $5 billion to the Forest Service for fiscal year
2012). As of 2011, Alta was merely 1 of 120 resorts that paid a permit fee to the Forest Service
under a ski area permit. S. Rep. 112-55 at 2 (2011).
As required in the Forest Service Handbook, the Permit also requires Alta to submit an
annual operating plan by November 15 of each year. Exhibit A at 4. Alta submitted its annual
operating plan for the 2013-14 ski season (“the Operating Plan”) on November 6, 2013, and the
Federal Defendants approved it on December 10, 2013. Exhibit B at 1. Among the many topics
1 To the extent Plaintiffs challenge the 2002 permit, such challenge is far too late. Impact Energy
Res., LLC v. Salzar , 693 F.3d 1239, 1245 (10th Cir. 2012) (stating that general limitations periodfor most claims against the United States is six years).
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covered in the Operating Plan, Alta addresses “Hill Management.” Exhibit B at 13. In that
section, Alta states that it may “revoke a skier’s privileges without compensation and/or call the
Alta Town Marshall (sic) or the Salt Lake County Sheriff either of whom may subject the skier to
arrest for violation of skier responsibility codes, State of Utah Codes, or any violation of the law.”
Exhibit B at 13 (emphasis added). The Operating Plan does not provide that Alta should call the
Forest Service if Alta needs support to enforce any of its policies. Additionally, the Operating
Plan provides that Alta reserves the right to exclude those whose “skiing device” is deemed to
create an “unnecessary risk,” causes “undue damage to the quality of the snow,” and “is not
consistent with [Alta’s] business management decisions.” Exhibit B at 13. Nothing in Alta’s
Operating Plan states that Alta excludes snowboards or asks that the Federal Defendants approve
of the exclusion of snowboards from the ski permit area. Exhibit B. The Federal Defendants,
however, are aware that Alta deems snowboards to be a prohibited skiing device.
In addition to providing for a 40-year term, a permit fee, and an operating plan, the permit
requires Alta to indemnify the United States from claims arising from Alta’s use and occupancy of
National Forest System land. The Permit also requires Alta to carry insurance at certain policy
limits. Exhibit A at 5.
THE LAWSUIT
On January 15, 2014, Plaintiffs filed this action seeking a declaration that Alta’s
“anti-snowboarder policy and snowboarding ban” violate both the Equal Protection Clause of the
Fourteenth Amendment as to Alta and the Due Process Clause of the Fifth Amendment as to the
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Federal Defendants.2 ECF No. 2 at 25. Plaintiffs also seek a permanent injunction on the
enforcement of Alta’s “anti-snowboarding policy and snowboarding ban” and an injunction
compelling Alta and the Federal Defendants “to provide snowboarders the same rights, privileges,
and access given to skiers at Alta.” ECF No. 2 at 25.
As set forth below, this Court should dismiss this action with prejudice for two reasons.
First, this Court lacks jurisdiction over this action because the United States has not waived its
sovereign immunity. Second, even if the United States has waived its sovereign immunity,
Plaintiffs have failed to state a claim for relief under the Constitution as a matter of law.
STANDARD OF R EVIEW
Under Fed. R. Civ. P. 12(b)(1), this Court should “presume no jurisdiction exists,” United
States ex rel. Precision Co. v Koch Indus., 971 F.2d 548, 551 (10th Cir. 1992), and the burden of
establishing subject matter jurisdiction “rests upon the party asserting jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). To establish jurisdiction, the asserting
party “must ‘allege in [its] pleading the facts essential to show jurisdiction,’ and ‘must support
[those facts] by competent proof.’” Koch Indus., 971 F.2d at 551. “‘Where a party attacks the
factual basis for subject matter jurisdiction, the court does not presume the truthfulness of factual
allegations in the complaint.’” La Resolana Architects, P.A. v. Clay Realtors Angel Fire, 416
F.3d 1195, 1198 (10th Cir. 2005) (citation omitted). Instead, courts have “wide discretion to
allow . . . other documents, and a limited evidentiary hearing to resolve disputed jurisdictional
facts under Rule 12(b)(1).” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
2 “Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth
Amendment.” Bolling v. Sharpe, 424 U.S. 1, 94 (1976).
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Under Fed.R.Civ.P. 12(b)(6), “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Thus, Plaintiffs must plead enough “factual content” to allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. If these factual
allegations fail to establish a plausible claim on which Plaintiffs could obtain relief, then their
claims must be dismissed. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
ARGUMENT
I. THIS COURT LACKS JURISDICTION BECAUSE THE UNITED STATES HAS
NOT WAIVED ITS SOVEREIGN IMMUNITY.
This Court should dismiss Plaintiffs’ Complaint for lack of subject matter jurisdiction
because the United States has not waived its sovereign immunity. “Under settled principles of
sovereign immunity, the United States, as sovereign, is immune from suit, save as it consents to be
sued . . . and the terms of its consent to be sued in any court define that court’s jurisdiction to
entertain the suit.” United States v. Dalm, 494 U.S. 596, 608 (1990) (citations and quotations
omitted). Statutes purporting to waive sovereign immunity must be “strictly construed.” Perry
v. United States, 101 F. Supp.2d 1354, 1355 (D. Kan. 2000) (citing United States v. Mitchell , 445
U.S. 535, 538 (1980)).
In this case, Plaintiffs rely on the limited waiver of sovereign immunity in the
Administrative Procedure Act (“APA”). The APA’s waiver of sovereign immunity is located in 5
U.S.C. § 702. Section 702 provides in relevant part:
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An action in a court of the United States seeking relief other than money damagesand stating a claim that an agency or an officer or employee thereof acted or failedto act in an official capacity or under color of legal authority shall not be dismissed
nor relief therein be denied on the ground that it is against the United States or thatthe United States is an indispensable party.
5 U.S.C. § 702 (emphasis added). Thus, for Plaintiffs to establish a waiver of sovereign immunity
under section 702, they cannot merely show that Alta’s private conduct violates the Constitution
because the Constitution does not regulate private conduct. Gallagher v. Neil Young Freedom
Concert , 49 F.3d 1442, 1446 (10th Cir. 1995) (stating that “private conduct . . . is not subject to the
Fourteenth Amendment’s prohibitions”). Instead, Plaintiffs must show that Alta’s decision to
preclude snowboards is really the Federal Defendants’ decision under their “official capacity” or
“color of legal authority.” In other words, Plaintiffs must show “state action” to waive sovereign
immunity. Cf. United States v. Price, 383 U.S. 787, 794 n.7 (1966) (“In cases under [42 U.S.C.] §
1983, ‘under color of law’ has consistently been treated as the same thing as the ‘state action’
required under the Fourteenth Amendment.”).
Plaintiffs cannot establish that Alta’s business decision to preclude those using snowboards
from accessing Alta’s ski lifts is a “state action.” The “[a]pplication of the state action doctrine
has been characterized as one of the more slippery and troublesome areas of civil rights litigation.”
Gallagher , 49 F.3d at 1447 (quotations and citations omitted). Indeed, the state action doctrine
has been criticized as “the paragon of unclarity,” a “protean concept,” and “frequently admits of no
easy answer.” Id. (quotations and citations omitted). Commensurate with the “slippery and
troublesome” nature of the state action doctrine, the Tenth Circuit Court of Appeals relies on four
different tests to determine whether private action amounts to state action in civil rights cases.
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Those tests are: (1) the nexus test, (2) the symbiotic relationship test, (3) the joint activity test, and
(4) the essential state function test. Id. Of these four tests, Plaintiffs appear to rely on only two:
(1) the “symbiotic relationship” test, and (2) the “joint activity” test. ECF No. 2, ¶ 57. But
Plaintiffs cannot satisfy either test or establish a waiver of sovereign immunity under the APA.
A. Plaintiffs Cannot Satisfy The Symbiotic Relationship Test.
Plaintiffs have not and cannot establish a “symbiotic relationship” between Alta and the
Federal Defendants because Plaintiffs have not shown that the Forest Service was a joint
participant in the activity challenged by Plaintiffs, (i.e., Alta’s prohibition against snowboards).
A “symbiotic relationship” exists when the government “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. The Tenth Circuit has addressed how courts should apply this
test in a case analogous to Plaintiffs’.
In Gallagher v. Neil Young Freedom Concert , the plaintiffs were ticket holders for a rock
concert being held at the University of Utah’s Huntsman Center and were subjected to pat down
searches by a private security company prior to being admitted into the concert. Plaintiffs filed
suit against the University of Utah and the concert promoter alleging that the pat down searches
constituted an illegal search under the United States Constitution because the security company’s
pat down searches were really “state action,” since the University, the promoter, and the security
company were in a “symbiotic relationship.” Id. at 1446. The plaintiffs claimed that such a
relationship existed because: (1) the searches occurred at the University’s property; (2) the
University received rent based on the concert’s gross ticket sales; and (3) University police
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officers stood nearby watching the pat down searches. Id. at 1445, 1452-53.
The Tenth Circuit rejected plaintiffs’ claims and held that no state action had occurred
because “[t]he fact that certain conduct occurs on public property does not establish state action.”
Id. at 1452. Rather, the plaintiffs must show something more than the mere use of a public
building to demonstrate significant intertwining between the promoter and the University. Id.
The court also held that plaintiffs failed to show that “the allegedly unconstitutional conduct
generated profits that were indispensable elements in the University’s financial success. . . .
Therefore, as to the profits that the University received from the Neil Young concert, the element
of indispensability is clearly lacking.” Id. at 1453 (emphasis added). To further illustrate this
point, the court cited to Vincent v. Trend Western Technical Corp., 828 F.2d 563 (9th Cir. 1987),
which declined to find state action by the United States Air Force based on a contractor’s alleged
civil rights violations. The court found that although the contractor “may have been dependent
economically on its contract with the Air Force,” the contract in question “was most certainly not
an indispensable element in the Air Force’s financial success.” Id. at 569. Accordingly, the
Gallagher court found that the promoter did not have a symbiotic relationship with the University
and, therefore, no state action occurred. Gallagher , 49 F.3d at 1453.
The Tenth Circuit’s analysis in Gallagher is dispositive here. The mere fact that Alta
operates most of its ski resort “on public property does not establish state action.” Id. at 1452.
Likewise, Plaintiffs cannot show that Alta’s annual rental fee is “an indispensable element in the
[Forest Service’s] financial success.” Id . at 1453 (citing Vincent , 828 F.2d at 569). To prove
“the element of indispensability,” Plaintiffs must show that the “allegedly unconstitutional
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conduct generated profits that were indispensable elements of [the Forest Service’s] success.” Id.
In this case, however, Alta’s permit fee constitutes less than 0.1% of the Forest Service’s annual
budget. Compare ECF No. 2, ¶ 56 and Pub. L. No. 112-10, §§ 1741 to 1747 (appropriating over
$5 billion to the Forest Service for fiscal year 2012). This scant percentage is even smaller if this
Court considers the revenue from more than 100 ski area permits plus timber harvesting permits
and all the other permitted activities for which the Forest Service collects fees. “Therefore, as to
the profits that the [Forest Service] received from [Alta’s ski operations], the element of
indispensability is clearly lacking.” Gallagher , 49 F.3d at 1453 (emphasis added). Thus,
because there is no symbiotic relationship between the Forest Service and Alta, there is no state
action, and no waiver of sovereign immunity.3
B. Plaintiffs Cannot Satisfy the Joint Action Test.
Plaintiffs’ “joint action test” argument likewise fails because neither the Federal
Defendant’s mere acquiescence in the actions of Alta nor the existence of a common goal to profit
from a joint venture is sufficient to establish the necessary degree of concerted action to satisfy the
joint action test. To determine whether a “joint action” exists between Alta and the Federal
Defendants that violates Plaintiffs’ putative constitutional rights, the Tenth Circuit “examine[s]
3 Plaintiffs claim that Alta has an animus based on the “type” of people who snowboard. ECF No. 2, ¶ ¶ 33, 35. Curiously, in Gallagher , the security company’s written policy was to conduct
pat down searches only for “rock, rap, and go-go” concerts. Gallagher , 49 F.3d at 1445 (quotations omitted). The University was aware of this policy. Id. Conspicuously absent fromthis list of concerts were classical music, country music, or jazz concerts. Indeed, the Gallagher plaintiffs could likewise claim the pat down searches were conducted due to the securitycompany’s “animus” toward the type of people that choose to attend rock, rap, or go-go concerts.However, basing a pat down search on the stereotypes associated with the type of people whoattend such concerts had no relevance to the Tenth Circuit in Gallagher and should have norelevance here.
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whether state officials and private parties acted in concert in effecting a particular deprivation of
constitutional rights.” Id. at 1453.
In Gallagher , the plaintiffs alleged that the University acted jointly with the promoter for
two reasons. First, they alleged that the University’s regulations gave the University’s employee
who participated in contract negotiations with the promoter broad authority over security. The
employee’s failure to stop the promoter and its security company from performing pat down
searches rendered those searches acts of the University. Id. at 1455. Second, the plaintiffs
contended that the University, pr omoter, and security company had one common aim: “to produce
a musical concert from which each would benefit financially.” Id .
The Tenth Circuit again rejected the plaintiffs’ arguments, reasoning that “the mere
acquiescence of a state official in actions of a private party is not sufficient” to satisfy the joint
action test. Id. Although the University employees were well aware of the pat down searches,
id. at 1445, the Tenth Circuit held that the University’s silence on a purported constitutional
violation by a private party “establishes no more than the University’s acquiescence . . . and is
insufficient to establish state action under the joint action test.” Id. at 1455. Instead, “state and
private entities must share a specific goal to violate the plaintiff’s constitutional rights by engaging
in a particular course of action.” Id. The court observed that this joint action is usually found
when “the police have substantially assisted in the allegedly wrongful conduct.” Id. The
University Police’s mere act of standing by and observing the searches did not constitute a joint
action to violate the plaintiffs’ constitutional rights. Id.
The court also held that merely having a common goal to profit from a joint venture “does
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not establish the necessary degree of concerted action” to satisfy the joint action test. Id.
Instead, the plaintiffs had to show that the University, the promoter, and the security company all
shared a “common goal of performing pat-down searches on concert patrons.” Id. Because the
plaintiffs failed to show such a common goal, the Tenth Circuit declined to find state action.
As in Gallagher , Plaintiffs here cannot establish a common goal between the Forest
Service and Alta to allegedly violate snowboarders’ purported constitutional rights because the
Forest Service has merely acquiesced to Alta’s no-snowboard policy. Alta’s Operations Plan
does not mention snowboarding and does not seek Forest Service approval to specifically exclude
snowboards from Alta’s lifts. Exhibit B. If Alta were to change its policy as to snowboarders, it
would not need the Federal Defendants’ approval. To the contrary, the Operations Plan
specifically states:
Alta Ski Area reserves the right to exclude any type of skiing device that they deemcreates an unnecessary risk to other skiers and/or the user of the device, or anydevice that they deem causes undue damages to the quality of the snow, or is not
consistent with their business management decisions.
Exhibit B at 13. In short, the Federal Defendants have done nothing more than acquiesce to
Alta’s no-snowboard policy, and such acquiescence does not constitute “joint action” between
Alta and the Federal Defendants. Id.
Further, Plaintiffs cannot show that Alta and the Federal Defendants “share a common
goal” of excluding snowboards from Alta’s ski lifts. Id. In fact, the Forest Service does not have
an anti-snowboarding policy. As Plaintiffs point out, there are several ski areas on National
Forest System land in Utah, throughout the United States, and even adjacent to Alta where
snowboarding occurs. ECF No. 2, ¶ 2. The Forest Service issues permits to over 100 ski resorts
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in 13 states and, apparently, only Alta precludes snowboarding. S. Rep. 112-55 at 2 (2011)
(recognizing that as of 2011 the Forest Service had permitted 120 ski areas in 13 states many of
which included snowboarding); ECF No. 2, ¶ 2. Moreover, if Alta needs law enforcement
assistance to help enforce its no-snowboarding policy, it does not contact the Federal Defendants;
it calls local law enforcement. Exhibit B at 13. Thus, like the University in Gallagher , it strains
credulity to argue that the Forest Service has a policy that seeks to preclude snowboarding and
shares that common goal with Alta
Moreover, the structure of Alta’s ski area per mit further precludes a finding of “joint
action.” For example, instead of assuming liability for damages that may result from Alta’s use
and occupancy of its permit area — which the United States does for federal agencies, employees,
and certain private entities deemed to be doing federal business — the Forest Service expressly
requires Alta to pay for and indemnify the United States for any claim arising from Alta’s use or
occupancy of the permit area. This provision hardly evinces a “joint action” between the Forest
Service and Alta. Therefore, because Plaintiffs cannot demonstrate joint action between the
Federal Defendants and Alta, Plaintiffs can neither prove state action nor a waiver of sovereign
immunity under the APA. Consequently, this action should be dismissed for lack of subject
matter jurisdiction.
II. THIS COURT SHOULD DISMISS THIS ACTION BECAUSE PLAINTIFFS FAIL
TO STATE A CLAIM AGAINST THE FEDERAL DEFENDANTS.
Even if Plaintiffs can establish a waiver of sovereign immunity and that Alta’s
no-snowboarding policy is really the Federal Defendants’ decision, Plaintiffs’ Complaint must
still be dismissed for failure to state a claim against the Federal Defendants under the Fifth
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similarly situated individuals for reasons that are “irrational and wholly arbitrary.” Id. at 1210.
Each issue is discussed in order below.
A. No Class of One Cause of Action Exists Under the Fifth Amendment to ChallengeLand Uses that the United States Allows to Occur on Its Own Property.
This Court should dismiss this action because the law does not recognize a “class of one”
claim challenging the types of recreational activities that the United States allows to occur on its
land. The Supreme Court has held that a “class of one” claim is not legally cognizable where, as
here, the law affords the government special leeway when operating as a “proprietor” instead of a
“regulator.” Engquist v. Ore. Dep’t. of Agric., 553 U.S. 591, 598 (2008); see also Kan. Penn
Gaming, LLC v. Collins, 656 F.3d 1210, 1217-18 (10th Cir. 2011) (stating that “class of one”
plaintiffs face a substantial burden when challenging decisions in which a government actor enjoys
broad discretion). By illustration, in Engquist , the plaintiff was a disgruntled government
employee who claimed to have suffered “class of one” discrimination when the government
denied her a promotion and terminated her em ployment “for arbitrary, vindictive, or malicious
reasons.” Engquist , 553 U.S. at 595. The Court held that “the core concern of the Equal
Protection Clause as a shield against arbitrary classifications, combined with unique
considerations applicable when the government acts as employer as opposed to sovereign, lead us
to conclude that the class-of-one theory of equal protection does not apply in the public
employment context.” Id. at 598.
The Court reasoned that it has “long held the view that there is a crucial difference, with
respect to constitutional analysis, between the government exercising ‘the power to regulate or
license, as lawmaker,’” and the government acting “as proprietor, to manage [its] internal
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operation.” Id. When the government acts as a “proprietor,” it “has far broader powers than
does the government as sovereign.” Id. In this “proprietor” role, the government must engage in
“discretionary decisionmaking based on a vast array of subjective, individualized assessments.”
Id. at 603. Given the need for discretion when acting as a proprietor, “the rule that people should
be ‘treated alike, under like circumstances and conditions’ is not violated when one person is
treated differently from others because treating like individuals differently is an accepted
consequence of the discretion granted.” Id. (emphasis added). Given the proprietary discretion
the government has in such contexts, a “class of one” is not legally cognizable.
Further, as a matter of policy, the Court highlighted the “common-sense realization that
government offices could not function if every employment decision became a constitutional
matter. . . .” Id. at 607 (quotations and citations omitted). This is because “ratifying a
class-of-one- theory of equal protection in the context of public employment would impermissibly
‘constitutionalize the employee grievance,’” which would inappropriately invest federal courts
with power that the Constitution never intended. Id. at 609. Such a scenario is an affront to the
Separation of Powers doctrine that the Constitution provides. Thus, separation of powers
concerns, in addition to proprietary discretion, preclude a “class of one” theory in public
employment cases.
The Court’s reasoning in Engquist applies with equal force here in the context of federal
public lands because: (1) the Constitution makes the United States a proprietor of its own lands
with plenary discretion to determine the activities that may occur on those lands; and (2) separation
of powers concerns preclude the judiciary from deciding what uses are allowed on public lands.
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First, the Property Clause makes the United States a proprietor with plenary discretion over
its land. The Constitution provides: “The Congress shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or other Property belonging to the United
States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the
United States, or of any particular State.” Art. IV, § 3, cl. 2 (“the Property Clause”). The
Property Clause “is a grant of power to the United States of control of its property.” Light v.
United States, 220 U.S. 523, 536-37 (1911) (citations and quotations omitted). Like public
employment, “[t]he Government has with respect to its own land the rights of an ordinary
proprietor . . . . It may deal with such lands precisely as an ordinary individual may deal with his
farming property.” Id. at 536 (emphasis added). Consequently, under the Constitution, “[t]he
United States can prohi bit absolutely or fix the terms on which its property may be used.” Id.
(emphasis added). But, unlike public employment, “[t]he power over the public land thus
entrusted to Congress is without limitations.” Kleppe v. New Mexico, 426 U.S. 529, 539 (1976)
(citations and quotations omitted, emphasis added). Thus, as a proprietor over its own property,
the United States’ power is plenary.
As a “proprietor” whose power over its property is “without limitations,” the United States
engages in “discretionary decisionmaking based on a vast array of subjective, individualized
assessments” as to what uses are permitted on its land. Engquist , 553 U.S. at 603. The United
States makes 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. Not only does the United States make
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individualized assessments about the general types of activities that may occur on federal land, but
the United States also decides to allow or exclude certain activities within specific areas of land.
For example, the United States may decide to allow fishing within a wildlife refuge, but it may
choose to limit particular waters within that refuge only to fly fishing, which necessarily excludes
other types of fishing. See, e.g., http://www.fws.gov/nwrs/threecolumn. aspx?id=2147516841
(limiting certain waters in the National Elk Refuge to fly fishing). Given that the United States’
limitless discretion to determine what types of activities can occur on its own land, “the rule that
people should be ‘treated alike, under like circumstances and conditions’ is not violated when
[snowboarders are] treated differently from [skiers] because treating like individuals differently is
an accepted consequence of the discretion granted.” Engquist , 553 U.S. at 603 (emphasis added).
Second, separation of powers principles preclude the judiciary from recognizing a “class of
one” claim in the context of challenging uses of federal land. As a practical matter, the United
States makes thousands of decisions about which uses and activities are allowed or are not allowed
on its vast land holdings. If courts were to recognize a “class of one” challenge in the context of
land use, then every person whose desired use of federal land was precluded could raise a Fifth
Amendment equal protection claim under the Constitution seeking a rational-basis review for each
decision. For example, “fisherman who cast from the bank”—like Plaintiffs who “stand sideways
on a single snowboard”— could file a complaint claiming an interest in fishing the waters in the
National Elk Refuge, which the United States has made available only to fly-fishing. These
bank-casting fishermen, like Plaintiffs here, could argue that there is no rational basis for
excluding bank-casting fisherman and that their exclusion is evidence of animus on the part of the
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United States and fly fishermen. The United States would then be forced to engage in litigation
for this and any other land use decision it has made that arguably limits or entirely excludes a use
of its own property. Like the Supreme Court in Engquist , this Court should be “guided . . . by the
common sense realization that government [land management] offices could not function if every
[land use] decision became a constitutional matter.” Enquist , 553 U.S. at 607. Indeed, if
Plaintiffs’ “class of one” theory were to apply here, then the federal judiciary would become the
ultimate authority as to what activities the United States should allow on its own land instead of
Congress and the agencies to which Congress has delegated its authority. Not only would such a
result ignore the plain language of the Property Clause (i.e., “Congress shall have power . . .”), but
it would also ignore the Supreme Court’s long-standing prohibition on the federal judiciary from
making such decisions. In Light v. United States, the Court stated:
All the public lands of the nation are held in trust for the people of the wholecountry. And it is not for the courts to say how that trust shall be administered.That is for Congress to determine. The courts cannot compel it to set aside the
lands for settlement, or to suffer them to be used for agricultural or grazing purposes, nor interfere when, in the exercise of its discretion, Congress establishesa forest reserve for what it decides to be national and public purposes. . . . Theseare rights incident to proprietorship, to say nothing of the power of the UnitedStates as a sovereign over the property belonging to it.
220 U.S. at 537 (internal citations and quotations omitted). In effect, Plaintiffs’ “class of one”
claim would do exactly what the Tenth Circuit cautioned against in “class of one” cases by
“transform[ing] the federal courts into ‘general-purpose second-guessers of the reasonableness of
broad areas of [federal] decisionmaking; a role that is both ill-suited to the federal courts and
offensive” to the above-referenced constitutional principles. Jicallilla, 440 F.3d at 1209
(citations and quotations omitted). Thus, if under Engquist , a “class of one” claim is not legally
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cognizable for the government’s public employment decisions, a “class of one” claim is even more
clearly precluded for the United States’ decisions as to how it should use its own land.
Accordingly, because the “class of one” equal protection claim is not legally cognizable here, the
Court should dismiss this action with prejudice.4
B. Plaintiffs Are Not Being Treated Differently Than Others Who Are SimilarlySituated And Even If They Were, There Is A Rational Basis For Such Treatment.
Even if a “class of one” claim is legally cognizable here, Plaintiff’s Complaint must still be
dismissed because Plaintiffs are not being treated differently than other similarly situated
individuals and even if they were, there is a rational basis for such treatment. To prove their
“class of one” claim, Plaintiffs must show that: (1) they were treated differently from others who
are “similarly situated in every material respect”; and (2) “this difference in treatment was without
rational basis, that is, the government action was ‘irrational and abusive.’” Kan. Penn, 656 F.3d
at 1216. As set forth below, Plaintiffs have failed to make the requisite showing.
1. Plaintiffs are not similarly situated to individuals who use skis at Alta.
Plaintiffs fail to allege sufficient facts to show that they are similarly situated to those
individuals who are allowed to use Alta’s ski lifts “[C]ourts have insisted that plaintiffs
demonstrate similarity in all material aspects.” Id. at 1212. Plaintiffs’ burden for proving their
“similarity” is “exacting.” Id. at 1213. They “cannot prevail if there is any material difference
4 Although there is no “class of one” claim regarding the United States’ land-use decisions,Plaintiffs are not without recourse. The Engquist court recognized that “[p]ublic employees
typically have a variety of protections from just the sort of personnel actions about which Engquistcomplains, but the Equal Protection Clause is not one of them.” 553 U.S. at 609. Likewise,those challenging the United States’ land-use decisions are free to seek relief under the statutes thatCongress has enacted, but the Fifth Amendment is not among Plaintiffs’ choices.
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between it and allegedly similarly situated parties that relates to a governmental interest.” Id .
(emphasis in original).
In an attempt to meet this burden, Plaintiffs allege that they are similarly situated to skiers.
ECF No. 2, ¶ ¶ 86-87. Plaintiffs, however, are not similarly situated to skiers for two reasons.
First, snowboarders go down the mountain facing sideways, whereas skiers go down the mountain
facing forward and directly downhill. ECF No. 2, ¶ 87. A snowboarder’s side-ways orientation
creates a blind-spot that they must turn into; skiers do not turn into their blind spot. ECF No. 2,
¶ 73. Second, unlike skiers, snowboarders do not use poles. When an area is flat, skiers can use
their poles to pull them forward and continue moving. Snowboarders, however, must undo one of
their bindings and use their foot to push off the snow, much like a skateboard, to continue moving.
Snowboarders who stop to undo their binding and release their foot from the snowboard not only
create congestion on the mountain but pose a safety concern for skiers on the hill who are moving
at a faster rate of speed. In addition, to make it through a flat area without having to use their foot
to push off, snowboarders must carry enough speed to propel them through the flat part of the hill.
The snowboarders’ velocity creates a safety concern if others in the area are not moving as fast.
ECF No. 2, ¶ 74. These allegations in Plaintiffs’ complaint present a material difference
between skis and snowboards that preclude Plaintiffs from establishing that they are similarly
situated to skiers.
2. Plaintiffs were not treated differently than similarly situated individuals
Even if Plaintiffs could meet their burden under the similarly-situated analysis, Plaintiffs
cannot show that they have been treated differently than similarly situated individuals. Like
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everyone else, Plaintiffs may ride Alta’s chairlifts and descend Alta’s slopes. Like everyone else,
Plaintiffs must comply with Alta’s equipment rules. Just because Plaintiffs prefer to use a
snowboard or other unapproved device, such as sleds, inner-tubes, or snowbikes when riding
Alta’s chairlifts or descending Alta’s slopes does not mean that Alta is treating these individuals
differently. To the contrary, Alta precludes everyone who uses unapproved devices from riding
its chairlifts and descending its slopes. Thus, Plaintiffs cannot show that Alta treats them
differently than anyone else who uses unapproved devices and, therefore, cannot sustain an Equal
Protection Clause claim.
3. Even if Plaintiffs are similarly situated to skiers and have been treateddifferently, there is a rational basis for the difference in treatment.
Finally, even if Plaintiffs were similarly situated to skiers and treated differently, there is a
rational basis for their treatment, which precludes their claim as a matter of law. When
determining whether a rational basis exists, this Court presumes that a rational basis underlies the
government action. Teigen v. Renfrow, 511 F.3d 1072, 1083 (10th Cir. 2007). “To survive a
motion to dismiss for failure to state a claim, a plaintiff must allege facts sufficient to overcome the
presumption of rationality that applies to government classifications.” Id. (quotations and
citations omitted). In fact, “[a]n equal protection claim will fail if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification.” Id. (quotations
and citations omitted). Plaintiffs fail to plead sufficient facts to overcome the presumption in
favor of the Federal Defendants.
Plaintiffs’ complaint supplies the rational basis for treating them differently than skiers.
As stated above, snowboarders have a blind spot that skiers do not have and do not use a piece of
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skiing equipment that skiers use to traverse flat areas. ECF No. 2, ¶ ¶ 87, 73-74. These
differences create safety concerns that can be avoided or minimized by not allowing snowboarders
to access the terrain via Alta’s ski lifts.
Likewise, many customers of Alta and the businesses nearby prefer Alta because it only
caters to skiers. ECF No. 2, ¶ 73-74, 79. Where, as here, a business is not discriminating
against anyone based on a protected class or fundamental right, but has acted in furtherance of its
own business interests and those of the surrounding businesses in the community, there is a
rational basis for its actions which the government may properly consider. Santana v. Cook Cnty.
Bd. of Review, 779 F.Supp.2d 830, 839 (N.D. Ill. 2011) (holding in class of one claim that county’s
action had rational basis because action protected the county and did not harm business interests).
Therefore, even if Plaintiffs established that they are similar to skiers and have been treated
differently, they have failed to show that the Federal Defendants’ treatment of them was irrational.
Accordingly, Plaintiffs have failed to state a claim for relief, which requires dismissal of this action
with prejudice.
CONCLUSION
For the reasons stated above, this Court should dismiss this action because Plaintiffs have
failed to establish a waiver of sovereign immunity and have failed to state a claim upon which
relief can be granted. Therefore, this Court should dismiss this action with prejudice.
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DATED this 31st day of March 2014.
DAVID B. BARLOW
United States Attorney
/s/ Jared C. BennettCARLIE CHRISTENSENJARED C. BENNETTAssistant United States Attorneys
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