Skiers vs. snowboarders, and the state action doctrine

The ski areas surrounding Salt Lake City are plentiful, popular, and spectacularly beautiful.  One of them is Alta, which is located, in substantial part, in the Wasatch-Cache National Forest.  Alta, however, is one of three ski areas in the United States that does not allow snowboarding (the others are Deer Valley in Utah and Mad River Glen in Vermont).  This does not sit well with snowboarders, who believe that they are the object of unwarranted animus.  So a group of snowboarders, as well as a nonprofit entity named Wasatch Equality – which is dedicated to “promoting equality and harmony among skiers and snowboarders” – sued Alta in federal court, claiming a violation of the Equal Protection Clause.

Now, you might be thinking, snowboarders are not a suspect class, and snowboarding is not a fundamental right, so the policy here is subject only to rationality review.  Is Alta’s policy rationally related to a legitimate purpose?  According to the complaint filed in federal district court (and cited by the appellate court), the plaintiffs note the signs at Alta describing and marketing it as “a skier’s mountain,” and that indicate that snowboarders are not welcome.  In addition, they quote Alta’s ski patrol director as saying that the “customer base” at Alta prefers a place without snowboarders.  They also quote Alta’s general manager: “‘anyone who uses the words rip, tear, or shred will never be welcome at Alta,'” and “‘as long as [I’m] alive, snowboarders will never be welcome at Alta.'”  Irrational?  Is this bare animus against a politically unpopular group?  Are these snowboarders like the Hippies, who Congress targeted in adopting amendments to the Food Stamp Act?  See USDA v. Moreno.

Well, there’s a bigger problem: the Equal Protection Clause only applies to state action, not private action (unless the private action is tantamount to state action).  There are a variety of tests used to determine when private action is attributable to the government, such as by showing a symbiotic relationship, a nexus, or joint action between the private entity and the government; or by showing that the private entity is performing a traditional public function.

The plaintiff snowboarders say that because Alta is located in a National Forest, there is a sufficient connection to the Government to establish Alta as a state actor under each of the above tests.  But the United States Court of Appeals for the Tenth Circuit recently disagreed.  According to the court, Alta is not “indispensible” to the purposes of the United States Forest Service.  The fees that the USFS receives from Alta each year are not considerable, amounting to only about 0.1% of the USFS annual budget.  And the USFS played no role in creating or managing Alta; it simply leases Alta the land.  Also, Alta does not become a state actor merely by virtue of the USFS’s awareness of the snowboarding ban; plaintiffs would need to show that the USFS encouraged or enforced the ban, and there was no evidence of this.  Finally, while managing a national forest is a traditional public function, operating a ski resort is not.

Consequently, the court held, the case was properly dismissed by the district court.  The opinion in Wasatch Equality v. Alta Ski Lifts Company is here.

Of course, the snowboarders in these parts can always use Solitude or Brighton.




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