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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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