Is Snowboarding Protected by the Constitution?

8/13/2019 Is Snowboarding Protected by the Constitution?

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Jonathan R. Schofield (8274)Michael S. Anderson (13976)Rachel L. Wertheimer (13893)

PARR BROWN GEE &LOVELESS185 South State Street, Suite 800Salt Lake City, UT 84111Telephone (801) 532-7840Facsimile (801) 532-7750

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

WASATCH EQUALITY, a Utah NonprofitCorporation; RICK ALDEN, and individual;DREW HICKEN, an individual; BJORNLEINES, an individual; and RICHARDVARGA, an individual,

Plaintiffs,

v.

ALTA SKI LIFTS COMPANY, a UtahCorporation d/b/a ALTA SKI AREA; THEUNITED STATES FOREST SERVICE, anagency of the United States Department ofAgriculture; and DAVID WHITTEKIEND, inhis official capacity as Forest ServiceSupervisor in the Wasatch-Cache NationalForest,

Defendants.

COMPLAINT

FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

DEMAND FOR JURY TRIAL

Case No. _________________

Judge ____________________

Case 2:14-cv-00026-PMW Document 2 Filed 01/15/14 Page 1 of 26


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Plaintiffs, Wasatch Equality, Rick Alden, Drew Hicken, Bjorn Leines, and Richard Varga

(Plaintiffs), hereby complain against Defendants, Alta Ski Lifts Company doing business as

Alta Ski Area (Alta), the United States Forest Service (USFS), and David Whittekiend in his

official capacity as Forest Service Supervisor for the USFS in the Wasatch-Cache National

Forest (collectively Defendants), and allege as follows:

INTRODUCTION

1. At nearly every ski resort in the world, skiers and snowboarders are treatedequally.

2. Only three ski resorts in North America prohibit snowboarding, Alta (Utah), DeerValley (Utah), and Mad River Glen (Vermont), and Alta is the only one of these resorts that

operates on public land controlled by the USFS.

3. On information and belief, Altas snowboarding prohibition was initiated a resultof animus held by Altas ownership, management, and customers towards the type of people they

believed to be snowboarders,1and Alta continues to enforce its anti-snowboarder policy and

snowboarding ban as a consequence of this animus towards snowboarders.

4. Altas anti-snowboarder policy and snowboarding banand its approval andenforcement by the USFSexcludes snowboarders from use and enjoyment of the public land

on which Alta operates, unlawfully discriminates against snowboarders, and denies

snowboarders equal protection under the law as guaranteed by the Fourteenth Amendment to the

U.S. Constitution, as applied to the federal government through the Due Process Clause in the

1To conserve space and avoid belaboring the point, snowboarders, as used hereinafter, refers

both to people who snowboard and the type of peoplethat Altas ownership, management, andcustomers believeto participate in snowboarding.



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Fifth Amendment to the U.S. Constitution.

5. The effect of Altas anti-snowboarder policy and snowboarding ban identifies agroup of people (those who stand sideways on a single snowboard rather than standing forward

on one or two skis, regardless of length, width, type of binding, or otherwise) and treats them

as unequal, purposefully imposing inequality by, among other things, communicating to the

public that snowboarders are not welcome by Alta or the USFS on the public land at issue.

6. Discrimination without any rational basis perpetuates inequality by creating,fostering, and encouraging skier-versus-snowboarder attitudes that are hostile and divisive in a

world where skiers and snowboarders, as a general matter, share the mountains, including those

on all other public land, in harmony and without issue.

7. Perceptions and attitudes have changed concerning the sport of snowboarding,and the vast majority of the winter-sports community does not question that skiers and

snowboarders can coexist and thrive together. For example, the cover of the November 2013

Freeskier Magazine featured a photograph of three professional athletes, two skiers and a

snowboarder, who had the following to say in the corresponding article:

Jossi Wells, professional skier: I enjoy riding with snowboarders a lot. Ithink it really helps diversify your skiing to see it from a differentperspective. . . . Sometimes egos get in the way with the wholeskier/snowboarder thing, but in my eyes we all do the same thing for thesame reasons.

Johnnie Paxson, professional snowboarder: Ive never had a problemwith skiers, it makes no difference to me whats on your feet. Whatmatters is what kind of person you are. . . . We all share a similar passion,why not do it in peace.

Gus Kenworthy, professional skier: Ski/snowboard beef is so 2000.Freeskier Magazine(Nov. 2013).



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8. Unfortunately, not everyone at Alta views skiers and snowboarders as equals, andtheir long-rooted dislike of snowboarders, as a group of people, continues to perpetuate their

discriminatory policy.

9. Defendants should not be permitted to discriminate against snowboarders andsnowboarding due to historical (and current) prejudices against the type of people they perceive

to constitute that class.

10. Accordingly, Plaintiffs seek a declaration from this Court that Altas anti-snowboarder policy and snowboarding ban violate the Equal Protection Clause in the Fourteenth

Amendment to the U.S. Constitution and is therefore unlawful. Plaintiffs also request that Alta

be permanently enjoined from implementing or enforcing such unlawful policies going forward.

JURISDICTION AND VENUE

11. As this action arises under the Equal Protection Clause in the FourteenthAmendment to the U.S. Constitution, this Court has jurisdiction over this action pursuant to 28

U.S.C. 1331.

12. This Court also has jurisdiction under the Administrative Procedure Act, 5 U.S.C. 701-706.

13. Alta is subject to personal jurisdiction in this District because it has transactedbusiness, contracted to supply goods or services, caused injury within the State of Utah, and has

otherwise purposely availed itself of the privileges and benefits of the laws of the State of Utah,

pursuant to Utah Code Ann. 78B-3-205 (2013).

14. This Courts exercise of personal jurisdiction over Alta and the USFS isconsistent with the Constitutions of the State of Utah and the United States.



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15. Venue is proper in this District pursuant to 28 U.S.C. 1391 because theDefendants reside in this District and the State of Utah, because the public land at issue is

situated within this District, and because a substantial part of the events giving rise to the claims

occurred in this District.

NATURE OF THE CASE

16. This is a civil action arising under the Equal Protection Clause in the FourteenthAmendment to the U.S. Constitution, as applied to the federal government through the Due

Process Clause in the Fifth Amendment to the U.S. Constitution, for declaratory judgment and

injunctive relief pursuant to 28 U.S.C. 2201-2202.

17. Plaintiffs seek a declaration that Altas anti-snowboarder policy andsnowboarding ban, as adopted, approved, and enforced by Alta and the USFS, violate the Equal

Protection Clause in the Fourteenth Amendment of the U.S. Constitution.

18. Plaintiffs also seek injunctive relief preventing Alta and the USFS fromenforcing Altas anti-snowboarder policy and snowboarding ban on public land.

19. Plaintiffs bring this action on behalf of all snowboarders who are currentlyprohibited by Alta and the USFS from using the public land on which Alta operates and on

behalf of all skiers who wish to ski with family and friends who snowboard.

20. Plaintiffs also seek to recover their attorneys fees, costs, and expenses incurredin this action, as well as any other relief the Court deems just and proper.

PARTIES

21. Plaintiff Wasatch Equality is a Utah Nonprofit Corporation, formed for thepurpose of, among other things, promoting equality and harmony among skiers and



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snowboarders, as well as promoting equal access and fair use of public lands by the public,

regardless of whether snowboarding or skiing. Wasatch Equalitys members, including its

officers and directors, have been denied access to snowboard at Alta because of Altas anti-

snowboarder policy and snowboarding ban.

22. Plaintiff Rick Alden is an individual residing in Summit County, Utah, who hasbeen denied access to snowboard at Alta. Mr. Alden has been snowboarding since 1985. Mr.

Alden has snowboarded at ski resorts throughout the United States, but has not been able to

snowboard at Alta, notwithstanding his desire to do so.

23. Plaintiff Drew Hicken is an individual residing in Salt Lake County, Utah, whohas been denied access to snowboard at Alta. Mr. Hicken has been snowboarding since 1981.

Mr. Hicken and his family regularly snowboard at Snowbird, a resort adjacent to Alta in Little

Cottonwood Canyon, but cannot snowboard at Alta as a result of Altas anti-snowboarder policy

and snowboarding ban.

24. Plaintiff Bjorn Leines is an individual residing Salt Lake County, Utah, who hasbeen denied access to snowboard at Alta. Mr. Leines is a professional snowboarder. Mr. Leines

family resides in the town of Alta, Utah, and his parents ski at Alta. Unfortunately, Mr. Leines

cannot snowboard at Alta with his family as a result of Altas anti-snowboarder policy and

snowboarding ban.

25. Plaintiff Richard Varga is an individual residing in Salt Lake County, Utah, whohas been denied access to snowboard at Alta. Mr. Varga has been snowboarding since 1981.

Mr. Varga and his family regularly snowboard at Snowbird, but cannot snowboard at Alta as a

result of Altas anti-snowboarder policy and snowboarding ban.



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26. Defendant Alta is a Utah Corporation with its principal place of business in SaltLake County, Utah.

27. Defendant USFS is an agency within the U.S. Department of Agricultureresponsible for the management of the National Forest System, including the public land and

resources in the Wasatch-Cache National Forest on which Alta operates.

28. Defendant David Whittekiend is the Forest Service Supervisor of the Wasatch-Cache National Forest and is sued in his official capacity. In this official capacity, Mr.

Whittekiend reviews and approves Altas operating plan annually, thereby approving, endorsing,

and authorizing the enforcement of Altas anti-snowboarder policy and snowboarding ban.

FACTUAL BACKGROUND AND GENERAL ALLEGATIONS

A. A Brief History of Snowboarding29. Inspired by skiing, skateboarding, and surfing, snowboarding involves descending

a snow-covered slope while standing sideways on a board attached to a riders feet.

30. The precise origins of snowboarding are debatable, as people have been standingsideways on various devices to descend snow-covered slopes as early as the 1920s (and likely

earlier), but modern snowboarding began in the 1970s when numerous companies began

manufacturing snowboards for public sale and use.

31. By the 1980s, snowboarding had gained popularity, and ski resorts were facedwith a growing number of customers who wanted to snowboard. Still unfamiliar with the sport,

resorts were initially hesitant to embrace snowboarding. Only seven percent of the ski resorts in

the United States allowed snowboarding in the 1980s, and some required snowboarders to

undergo a skills assessment prior to being allowed on a chairlift.



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32. These divisions at many resorts continued throughout the 1980s and 1990s,facilitating and provoking animosity and hostility between skiers and snowboarders.

Snowboarders were stereotypedperhaps rightfully soas members of the younger generation,

similar to surfers, skateboarders, and others considered part of various countercultures.

Snowboarding therefore inspired its own movement and counterculture within the world of

skiing. Viewing themselves as more sophisticated and affluent, many skiers bristled at this

snowboarding counterculture, which typically brought with it a particular style of dress (baggy

clothing), dialogue (words borrowed from surfing like gnarly or radical), and devices

(moving, untraditionally, sideways on the snow).

33. Some in the skiing community went further than merely stereotypingsnowboarders as younger by marketing, often for their own purposes, the entire group of

people as immature, inexperienced, and reckless. Some skiers disliked snowboarders and

opposed their infiltration into the ski resorts and ski culture. As a result, snowboards were

banned from many ski resorts.

34. Believing the equipment and skills of snowboarders had improved, insurancecompanies began insuring resorts for snowboarders as well as skiers. More regularly interacting

with snowboarders, skiers became comfortable with snowboarding, ski schools began offering

snowboard instruction, and snowboarding was accepted as part of the winter-sports community.

Skiers and snowboarders shared the terrain at many resorts, demonstrating that they could

coexist, and most resorts soon acknowledged that there was no legitimate reason to prohibit

snowboarding.



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35. Notwithstanding these advances, outdated or outright discriminatory perceptionsand attitudes continued among some skiers, which infected or was exploited by some resorts that

wanted to prevent snowboarders and their counterculture from having a presence on their

mountain.

36. In 1986, three resorts in Utah openly permitted snowboarders on their chairlifts(Beaver Mountain, Brighton, and Park West, which is now the Canyons), and in the years

following, all other Utah ski resorts did the same, with the exception of todays two hold-out

resorts, Deer Valley and Alta.

37. By 1990, most major ski areas allowed snowboarding and welcomedsnowboarders. Throughout the 1990s, snowboarding became one of the fastest-growing winter

sports, increasing in popularity among all demographics regardless of age, sex, or ability.

38. In 1993, Utah amended its Inherent Risk of Skiing Act so that snowboarding wasfully encompassed by the following definitions:

Skier means any person present in a ski area for the purpose of engaging in thesport of skiing, nordic, freestyle, or other types of ski jumping, using skis, sled,tube, snowboard, or any other device.

Ski area means any area designated by a ski area operator to be used for skiing,nordic, freestyle, or other type of ski jumping, and snowboarding.

Utah Code Ann. 78B-4-402.

39. In 1994, snowboarding was officially recognized as an integral part of the skiingcommunity when the National Ski Association became the United States Ski and Snowboard

Association, overseeing the U.S. Ski and Snowboard Teams.

40. In 1998, snowboarding became an official Olympic event, and snowboarders fromaround the world competed in the halfpipe and giant slalom events at the Nagano Olympic



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Games. In the Salt Lake Olympic Games in 2002, snowboarding was one of the most popular

events, so tickets were exceptionally difficult to purchase. In these 2002 Games, members of the

U.S. Snowboarding Team swept the gold, silver, and bronze medals in the mens halfpipe event

and won the gold medal in the womens halfpipe. Now an all-American sport, snowboarding

had become mainstream.

41. According to SnowSports Industries America, which tracks winter-sportsstatistics, there were approximately 7.4 million snowboarders and 11.3 million skiers in the

United States during the 2012-13 season. In other words, snowboarders comprised

approximately forty percent of the total ski and snowboard population in the United States last

year.

42. Today, every resort in North America has embraced snowboarders andsnowboarding with the exception of the three remaining holdout resorts: Deer Valley, Mad River

Glen, and Alta.

B. The Uniqueness of Altas Public Land43. Alta consists of 2,130 acres. Of which, 1,802.7 acres (85%) are located on USFS

public land.

44. The public land on which Alta operates is uniquely nestled at the top of LittleCottonwood Canyon just outside of Salt Lake City, Utah. At elevations between 8,530 and

10,550 feet, the north-facing slopes of Altas mountains typically receive more snow than any

other Utah resort.

45. Alta averages 560 inches annually of Utahs greatest snow on earth, and someof the best terrain in the entire region is located within Altas boundaries.



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46. Altas snow and terrain therefore make it unlike any other resort. Indeed, evenAltas General Manager, Onno Wieringa, has stated that, while there may not be much difference

in the quality of snow at other resorts (even less than a mile away at Snowbird), there is no

denying Alta averages more snow per year than its nearest neighbor, or anywhere else in Utah:

It just snows more right in this little corner of the Wasatch than it does anywhere else. Linda

Hamilton, Secret Ingredient, Storm Patterns Make Alta Special, DeseretNews, Jan. 19, 1989,

available athttp://www.deseretnews.com/article/31347/SECRET-INGREDIENT-STORM-

PATTERNS-MAKE-ALTA-SPECIAL.html?pg=all (last visited Jan. 15, 2014).

C. Altas Permit and Relationship with the USFS47. Alta operates under a U.S. Forest Service Ski Area Term Special Use Permit

(Permit), which authorizes Alta to operate a resort on public land subject to the provisions of

the Permit.

48. Pursuant to the annual Permit, the USFS must also approve Alta's Winter SiteOperation Plan (Plan) setting forth Altas operations and management plan for each year.

49. David Whittekiend, in his official capacity as the Forest Service Supervisor of theWasatch-Cache National Forest, reviews and approves Altas Plan annually.

50. The Permit and annual approval of the Plan constitute final agency action by theUSFS and Mr. Whittekiend under 5 U.S.C. 704. No administrative remedy is available to

Plaintiffs in connection with the USFSs grant of the Permit and annual approval of the Plan.

51. Altas Plan states that uphill and downhill travel must be accepted and approvedby Alta and that Alta reserves the right to exclude any type of skiing device that they deem

creates an unnecessary risk to other skiers and/or the user of the device, or any device they deem



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causes undue damages to the quality of the snow, or is not consistent with the business

management decisions.

52. Ostensibly under this provision, Alta enforces its anti-snowboarder policy andsnowboarding ban. By approving Altas Plan, the USFS has allowed Alta to ban snowboarders

from using public land.

53. However, Altas Permit specifically provides that the lands and waters coveredby this permit shall remain open to the public for all lawful purposes.

54. The Permits inclusive language is therefore at odds with Altas exclusionary anti-snowboarder policy and snowboarding ban, as formalized in the Plan.

55. Both under the Permit and as owner and leaseholder of the land on which Altaoperates, the USFS exercises substantial control over Altas use of public land. For instance, the

USFS approves nearly every action taken by Alta on USFS land, including but not limited to

signage, ski routes, avalanche control, and general safety. The USFS also has authority to check

and regulate the type, cost, and adequacy of services provided to the public, including the price

of a lift ticket, and to require that such services conform to certain standards.

56. In addition to exercising substantial control over Altas use of federal land, theUSFS receives a fee based on a percentage of revenue from lift-ticket sales and ski-school

operations. For example, according to the USFS, Alta paid $473,792 to the USFS in 2009,

$449,005 in 2010, $471,449 in 2011, and $304,396 in 2012.

57. Thus, the USFS has entered into a joint enterprise and a symbioticrelationship with Alta in its ski-resort business.



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58. Altas anti-snowboarder policy and snowboarding ban is therefore enforced onfederally-owned land, operates to exclude a particular class of individuals from use and

enjoyment of this public land, and is reviewed and endorsed annually by the USFS in approving

Altas Permit and/or Plan as well as under the terms of its contract with Alta.

59. Numerous other resorts operate on federal land under similar permits, includingother resorts in Utah, such as Snowbird and Brighton. All of these resorts allow snowboarders.

D. Altas Anti-Snowboarder Policy and Snowboarding Ban60. Altas anti-snowboarder policy and snowboarding ban unlawfully discriminates

against snowboarders by denying them the same access freely granted skiers to the public land

on which Alta operates.

61. However, Alta has not always prohibited snowboarding. In the early 1980s, Altaallowed snowboarders to ride its chairlifts. In fact, Plaintiffs Hicken and Varga were among

some of Utahs first snowboarders to snowboard at Alta. By the mid-1980s, Alta summarily

decided it would no longer allow snowboarders to access its terrain or ride its chairlifts and

instituted its anti-snowboarder policy and snowboarding ban.

62. Today, Alta still does not welcome snowboarders. Alta refuses to letsnowboarders on its chairlifts and prohibits snowboarders from using its terrain.

63. Altas website has stated that Alta is a skiers mountainsnowboarding is notallowed. The Alta Skiing Emphasis: By limiting the number of skiers in the area and by not

allowing snowboarding, Alta strongly upholds a commitment to your skiing experience.

Available athttp://www.alta.com/pages/pressroom_kits.php (follow Skiing Emphasis

hyperlink under the 2011-2012 Season heading) (last visited January 15, 2014).



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64. Altas trail map prominently states adjacent to the Alta and USFS logos that Altais a skiers mountain, Snowboarding is not allowed.

65. Signs in Altas ticket windows prominently declare in large, bold letters: NOSNOWBOARDS.

66. Alta and Snowbird share a common boundary, and customers can purchase anAlta/Snowbird combined-resort pass giving skiers access to both resorts while still prohibiting

snowboarders at Alta. Indeed, snowboarders are barred from accessing Alta terrain via

Snowbird, even though skiers are routinely granted similar access. On occasion, Alta has even

requested that Snowbird not allow snowboarders on chairlifts that would evenfacilitateaccess to

Alta.

67. Altas anti-snowboarder policy and snowboarding ban is based on antiquatedstigmas and stereotypes that snowboarders are immature, inexperienced, reckless, disrespectful,

and/or out of control, among other things discussed herein.

68. Altas anti-snowboarder policy and snowboarding ban hurts Utah tourism and, byexcluding mixed-skier/snowboarder families, flies in the face of Utahs family values.

69. For instance, Plaintiff Leines parents reside in the town of Alta, Utah. Mr.Leines children have skied at Alta with their grandparents, but Mr. Lienes has not been able to

snowboard with his family at Alta due to Altas anti-snowboarder policy and snowboarding ban.

70. Further, Altas anti-snowboarder policy and snowboarding ban, as well as Altasadvertising and marketing of the same, perpetuates stereotypes and prejudices, creating a

division between skiers and snowboarders and demeaning snowboarders as second-class citizens

not worthy of accessing Altas terrain. All of this is to say that Altas anti-snowboarder policy



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and snowboarding ban is based on, creates, facilitates, endorses, and promotes animus towards

snowboarders.

71. Consequently, Alta and the USFS deprive snowboarders of the ability to use thepublic land on which Alta operates and the rights otherwise afforded to skiers by operation of

law.

E. Altas Justifications as Pretext for Animus72. On information and belief, Altas anti-snowboarder policy and snowboarding ban

was instituted because Altas ownership, management, and customers did not like snowboarders

nor the snowboarding culture, and Altas purpose in enacting its policy was motivated by a bare

desire to disadvantage what Alta viewed (and continues to view) as an unpopular group by

denying snowboarders access to Alta.

73. Gus Gilman, Director of Alta Ski Patrol, stated:We allowed snowboards when nobody else did, and then we had a hard time with

. . . the early snow boarders, it was a developing sport. There were no edges onsnowboards, there was no . . . snowboards are really only good for powder skiing,and then the advent of Burtons first board with metal edges and, you know, hardbindings and things like that really took snowboarding to a level where it becameacceptable at other ski areas, and in that time Alta had had snow boarders forawhile [sic] and that we couldnt keep them out of the closed areas and they wereconstantly . . . because the boards were suitable for . . . werent really suitable forhard snow, and so Chic [Morton, Altas General Manager,] got mad one day andsaid, Thats it. No more snow boarders. And then now we have . . . I bet weget ten letters a week from people that really like coming to Alta because there areno snow boarders here. Theres not a blind spot that people talk about, and

theres not the . . . you know theres just a different attitude from people, and youcan go to another ski area and get that feeling, or you can come to Alta and go . . .and a lot of people dont know that theres no snow boarders and then about halfway through the day they realize, man theres no snow boarders here, and its agreat deal for them and now we sort of have a customer base of people who preferto ski where theres no snowboarding.



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The Alta Experience, Interview with Gus Gilman by KUED (2008), available at

http://www.docstoc.com/docs/156908596/The-Alta-Experience-Transcript-Gus-Gilman-

Interview-Joey----KUED-7 (last visited Jan. 15, 2014) (hereinafter The Alta Experience).

74. Alta claims that it is attempting to maintain a skiing culture, that its terrain isnot conducive to snowboards,2and that its business model caters to a skier-only market.

75. However, on information and belief, Altas ownership and managementimplemented and maintained the anti-snowboarder policy and snowboarding ban as a result of

underlying stereotypes, prejudices, animus, and irrational fears held by Altas ownership,

management, and customers towards snowboarders and snowboarding culture.

76. On information and belief, when efforts were being made to grant snowboardersaccess to ski resorts in the late 1980s, various individuals contacted the General Manager of Alta

at the time, Chic Morton, to discuss the possibility of opening Alta for snowboarding. Mr.

Morton responded to these requests by declaring that anyone who uses the words rip, tear, or

shred will never be welcome at Alta (a reference to the vocabulary used by snowboarders at the

time). On another occasion, Mr. Morton stated that as long as [he was] alive snowboarders will

never be allowed at Alta.

F. Alta as a Conduit for Customer Animus77. According to a survey conducted in 2006, nearly forty percent of skiers who

indicated that Alta was their favorite resort did so because Alta excludes snowboarders. Mike

Gorrell, Snowbird, Alta Charm the masses in Tribune ski poll, The Salt Lake Tribune, Nov. 14,

2To the extent Alta claims snowboarders are not capable of accessing some of Altas terrain (an

assertion Plaintiffs dispute), Alta demeans snowboarders. Furthermore, if this were the truerationale, Alta would similarly prohibit any skiers not able to access this terrain due to theirability. This is not the case.



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2006, available at http://www.sltrib.com/news/ci_4656897 (last visited Jan. 15, 2014) (1,107

total participants; 294 skiers preferred Alta; 114 of those preferring Alta referenced the

snowboarder ban).

78. David Quinney, an owner of Alta, stated:I know that management up there now are just holding the door against lettingsnowboarders in. You know? Theyre just being really stubborn about it. Andand I applaud them for doing that. But itit makes you wonder, how long canthey continue? And, you know, there are other people like me, saying the reasonwe ski at Alta is because they dont have snowboarders.

The Alta Experience, Interview with David Quinney by KUED (2008).

79. Bill Leavitt, former Alta Town Mayor and owner of the Alta Lodge, stated:Why doesnt Alta allow snowboarding? Everybody else is. Think of theeconomics involved here. How much money they could make because its thefastest growing thing. Well we went and checked with our old guests in all thedifferent lodges, people who have been coming here for years, 94 percent of themsaid please dont, and so we had a big meeting and we were talking about it andsomebody said, If 94 percent of our loyal guests dont want it, why are wewasting time talking about it and the lift company said, well, well lose money,

the lodges will, the restaurants will lose money, everybody if we do this so I wantto make sure that Im hearing from you. I want a show of hands. Every handwent up. It was all the business people here, if the people who have beencoming here dont want it, we dont do it.

The Alta Experience, Interview with Bill Leavitt by KUED (2008).

80. On information and belief, many of the customers at Alta hold underlyingstereotypes, prejudices, animus, and irrational fears towards snowboarders and snowboarding.

81. The animus of Altas customers is evident, as illustrated by the followingexamples:

82. On multiple occasions between 1994 and 2013, Plaintiffs Hicken and Varga wereverbally assaulted and heckled by Alta skiers while descending Alta terrain.



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83. In a video filmed at Alta in 2013, Alta skiers made the following comments: Snowboarders are assholes, teenage assholes, out of control; they cant

stop; they hit people, and then they dont even stop to see how they are. . .

I hate snowboarders. They need to get off our mountain; get their own

mountain. This is a skiers mountain.

Snowboarders are the worst. Thats why I dont ski anywhere else buthere . . . I dont ever want to see a snowboarder near me . . .

Snowboarders are too young and stupid . . . I would hate it if there were

snowboarders.

They shouldnt intermix. At Alta, the tradition should be keep it forskiers.

If you have a problem with it [no snowboarding], go to another resort . . .stay the hell off this mountain.

Available athttp://www.youtube.com/watch?v=YwWDMAEYe5c(last visited Jan. 15, 2014).

84. Further demonstrating the animus held by Alta skiers, the following are merely ahandful of examples of the type of comments made concerning snowboarding at Alta:

YouTube user namedDavid Collis(Dec. 16, 2013): Alta is for Skiers!Get use to it, I cant stand it when I have to put up with boarders, they cut

you off, get in the way, and are usually AIRHEADS! Go away and cut

someone else off, you will NEVER be allowed here, I hate

snowboarders!!!

Available at http://videositeprofits.com/demo/video/YwWDMAEYe5c/Shit-ALTA-

Skiers-Say-About-Snowboarding.html (last visited Jan. 15, 2014).

Website user namedHate Snowboarders with a Passion!!!(Dec. 12,2013): NO WAY NEVER!!!!! Snowboarders have brought the gettointo a respectable sport. So why would Alta ever want to change? Youguys are a bunch of idiots, typical snowboarding crowd that just cannotunderstand.



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Available athttp://unofficialnetworks.com/shit-alta-skiers-snowboarding-wow-guys-feel-

107837/ (last visited Jan. 15, 2014).

Yelp user namedLisa B.(Mar. 13, 2007): Ah . . . the world withoutsnowboarders.*aaahhhh* Seriously, it took me a whole day to realizewhat was going on here . . . why I was having so much fun and why it wasso relaxed . . . then it dawned on me . . . no snowboarders really, reallymakes a difference. Sorry guys . . . no attitude, no jerks . . . it was a lot, alot of fun . . . .

Yelp user named Gary W.(Apr. 12, 2012): No snowboarders allowed . .. this may not be for some . . . but for us it is sensational! We stronglyurge the powers that be to keep this restriction in place. It makes the

entire experience that much more peaceful, safe, and enjoyable. Greatcombination of all types of terrain and quality levels. We will keepcoming back . . . a true five star experience! Please continue your policyof a skier's only mountain. I wish more mountains were like you!

Yelp userJeff W. (Mar. 15, 2007): I could comment on the lack of thosehellion snow boarders, but the mountain was big enough that crowdsweren't an issue.

Available athttp://www.yelp.com/biz/alta-ski-resort-alta (last visited Jan. 15, 2014).

TripAdvisor user named Cthenn(Mar. 12, 2008): Alta is awesome, notonly for the snow, but for the feel of it. Number one thing . . . NOSNOWBOARDERS!!! So nice not to have to hear the grinding sound ofsome snowplower shaving off all the nice new snow or raping the mogulswith their boards, or flying recklessly down the hill verging on being outof control. I never felt more comfortable on a ski slope than I did here.And to not have to hear all the duh huh huh laughing and vapid, 4-leter-word [sic] babbling about whatever was a nice break from my usualexperiences at ski resorts. Sorry, I know not all snowboarders are likethat, and we skiers have our share of mogoloids. But Im supposed to bereviewing Alta, right?

Available athttp://www.tripadvisor.com/ShowUserReviews-g30205-d263759-

r21833076-Alta_Ski_Resort-Alta_Utah.html (last visited Jan. 15, 2014).



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85. Even if it were true that Altas ownership and management did not hold anyanimas towards snowboarders, Alta impermissibly and knowingly serves as a conduit for the

animus of its customers.

G. No Rational Basis to Exclude Snowboarders86. There are no legitimate reasons for prohibiting snowboarders at any resort that

already allows skiing.

87. Skiers and snowboarders engage in the same activity. Both ride chairlifts to ahigher elevation so that they can descend by sliding down the snow. Both skis and snowboards

have bindings to attach the device to the skiers/snowboarders feet, and both devices have edges

allowing the skier/snowboarder to control his or her descent down the snow. The only difference

between the two is the orientation of a persons feet on the skis or board.

88. Alta allows a broad range of equipment on its chairlifts and terrain, as long as theparticular device is referred to as a ski, regardless of number of skis, length, width, type of

binding, or otherwise. For instance, a mono-ski (permitted at Alta) is simply a single board

nearly identical to a snowboard in shape and size but with feet facing forward.

89. Allowing snowboarders at Alta would not interfere in any way with Defendantsability to provide skiers with a positive skiing experienceskiers would still enjoy the same

snow on the same terrain.

90. Altas anti-snowboarder policy and snowboarding ban does nothing to advanceskiers access to or the benefit from Altas unique public landit merely excludes snowboarders

from enjoying the same access to and benefit from that federal land.



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91. Tradition or not, animus is inherently irrational and is never a legitimategovernment interest.

H. Altas Denial of Access to Plaintiffs92. On January 12, 2014, Plaintiffs Alden, Hicken, Varga, and other snowboarders

purchased Alta lift tickets at Altas ticket window.

93. Having each purchased an Alta lift ticket, Plaintiffs Alden, Hicken, Varga, and afew other snowboarders attempted to load Altas Collins lift with one foot strapped into their

snowboards, as is the customary practice at other ski resorts when loading a chairlift. Altas lift

operators told Plaintiffs that snowboards were not allowed at Alta and that they therefore could

not ride on the chairlift. Altas lift operators stopped the chairlift unnecessarily while Alta Ski

Patrol escorted Plaintiffs from the lift line, denying Plaintiffs access to Altas chairlifts and

terrain notwithstanding their valid lift tickets.

94. Shortly thereafter, Altas General Manager, Onno Wieringa, appeared on thescene and told Plaintiffs that, among other things, Altas anti-snowboarder policy and

snowboarding ban is really just a business decision. Mr. Wieringa further stated that Alta can

make enough money to be sustainable by just offering skiing, not getting into tubing, not getting

into ziplines and bungees and snowboarding. When Plaintiffs asked what harm would result

from allowing snowboarding, Mr. Wieringa responded that Altas policies work for Alta because

we like it, our skiers like it, our owners like it, and the Forest Service says its OK.

95. While at Alta that day, Plaintiffs observed skiers on a variety of ski equipment,including alpine skis, wide powder skis, twin-tip free-ride skis, telemark skis, alpine-touring skis,



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and even a mono-ski. None of these individuals was denied access to Altas chairlifts while

using such devices.

96. That same day, Plaintiff Alden also embarked on one of Altas chairlifts whileusing a split-board.

3 As he was riding the chairlift, a mid-mountain lift operator noticed that

Mr. Alden was using a split-board. When Mr. Alden unloaded at the top of the chairlift, two

Alta Ski Patrol personnel were waiting for him. The Ski Patrol told Mr. Alden that

snowboarding was not allowed at Alta and that he would have to descend the mountain in ski

mode. Given that split-boards are not designed to descend in ski mode, due to a free-pivot toe

binding, Mr. Alden expressed his concern about the safety of doing so and told them that he did

not understand why there was a problem given that he had rode the chairlift with skis. The Alta

Ski Patrol told him that it did not matter if his board separated into skis, it was a snowboard

and violated Altas policy. Notwithstanding this conversation, Altas Ski Patrol then told Mr.

Alden that he could descend with his split-board in snowboard mode once but would be

prohibited from using his split-board again on Altas chairlifts in the future. Mr. Alden then

descended without incident.

97. Plaintiffs Alden, Hicken, and Varga then departed having been denied theopportunity to use their purchased lift tickets at Alta because they were snowboarders.

98. If Altas anti-snowboarder policy and snowboarding ban were abolished,Plaintiffs would snowboard at Alta.

3A split-board is similar to a snowboard in shape and size but can be separated (or split) into

two separate boards akin to a pair of skis. The users feet face sideways while the split-board isfunctioning as a snowboard, whereas the users feet face forward when it is functioning as skis.



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FIRST CAUSE OF ACTION(Violation of the Equal Protection Clause)

99. Plaintiffs reallege and incorporate Paragraphs 1-98 as though fully set forthherein.

100. The Equal Protection Clause of the Fourteenth Amendment to the U.S.Constitution provides that [n]o state shall . . . deny any person within its jurisdiction the equal

protection of the laws. This guarantee of equality under law implements the constitutional ideal

that all persons similarly situated should be treated alike.

101. The Equal Protection Clause is applicable to the federal government through theDue Process Clause in the Fifth Amendment to the U.S. Constitution.

102. Alta, the USFS, and Mr. Whittekiend are state actors because Alta operates onfederal land pursuant to its Permit and Plan approved annually by the USFS and Mr. Whittekiend

in his official capacity as Forest Service Supervisor in the Wasatch-Cache National Forest, so

their actions are subject to review under the Equal Protection Clause.

103. Skiing and snowboarding are similar sports. Both require the same conditions(snow and slope) and involve the use of the same facilities (chairlifts and ski resorts). In the vast

majority of cases, both groups participate in their chosen activity at the same location, using the

same facilities, and nearly every resort in the world routinely serves patrons from both groups.

There are no distinctions between the broad range of ski equipment permitted at Alta versus a

snowboard, nor are there any distinctions between the type of people that ski versus those that

snowboard, that could possibly justify Altas anti-snowboarder policy and snowboarding ban.

104. Alta grants skiers access to its chairlifts and terrain but bans snowboarders fromboth. By creating a classification of people to disadvantage (snowboarders) and explicitly



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exclude from accessing, using, and enjoying public land, while granting access to all other

similar groups (skiers), Alta (and by extension the federal government) discriminates against the

similarly situated snowboarders.

105. Altas anti-snowboarder policy and snowboarding ban lacks any rational basis toa legitimate government interest.

106. There is no rational relationship between, on the one hand, Altas anti-snowboarder policy and snowboarding ban and, on the other hand, any possible interest claimed

by Alta or the USFS to support the policy and ban. There is no rational link between prohibiting

snowboarding and Altas stated goal of providing a quality ski experience for its customers.

107. Instead, on information and belief, the disparate treatment of snowboarders isbased on past and present stereotypes, prejudices, animus, and irrational fears held by Altas

ownership, management, and customers. Such interests are never legitimate.

108. Any suggestion that Altas customers would refuse to recreate in proximity tosnowboarders (or simply dislike doing so) is based upon vague undifferentiated concerns, as

demonstrated by the fact that both groups routinely participate side-by-side and peacefully

coexist at the vast majority of resorts in the world.

109. Any assertion that Altas anti-snowboarder policy and snowboarding ban was abusiness decision is mere pretext, as the real purpose and motivation behind the policys creation

was to disadvantage snowboarders based on privately held beliefs unsupported by any legitimate

basis. On information and belief, these same beliefs exist today among Altas ownership,

management, and customers, which form the actual basis for Altas continued enforcement of its

anti-snowboarder policy and snowboarding ban.



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110. Similarly, the government has no legitimate interest in denying a group ofindividuals from using public lands based on the animus held by Altas ownership, management,

or customers towards snowboarders.

111. Alta and the USFS know or should know that excluding snowboarders does notgenuinely contribute to the purposes of promoting safety or quality snow conditions.

112. Accordingly, both on its face and as applied to Plaintiffs, Altas anti-snowboarderpolicy and snowboarding ban are unconstitutional and in violation of the Equal Protection

Clause.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs respectfully request the following relief against Defendants:

1. For a declaratory judgment pursuant to 28 U.S.C. 2201, declaring that Altasanti-snowboarder policy and snowboarding ban violate the Equal Protection Clause in the

Fourteenth Amendment of the U.S. Constitution, as applied to the federal government through

the Due Process Clause in the Fifth Amendment to the U.S. Constitution.

2. For a permanent injunction pursuant to 28 U.S.C. 2202, enjoining theenforcement of Altas anti-snowboarder policy and snowboarding ban, requiring Alta and the

USFS to provide snowboarders the same rights, privileges, and access given to skiers at Alta.

3. For a judgment awarding Plaintiffs their costs of suit, including reasonableattorneys fees, under applicable statutes, rules, and common law.

4. For such other and further relief as the Court may deem appropriate.



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JURY DEMAND

In accordance with Rule 38 of the Federal Rules of Civil Procedure, Plaintiffs

respectfully demand a jury trial on all issues so triable.

DATED this 15th day of January 2014.

PARR BROWN GEE &LOVELESS

/s/ Jonathan R. Schofield

Jonathan R. SchofieldMichael S. Anderson

Rachel L. Wertheimer

Attorneys for Plaintiffs


Is Snowboarding Protected by the Constitution?

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