Just in time for summer, consider the plight of snowboarders in the Wasatch Mountains of northern Utah, home of the Alta Ski Area.

Alta is well-known as a skiers-only resort. It is one of only three in the country that bans snowboarders. Feeling unlawfully excluded for years, four snowboarders, together with a group formed for “promoting equality and harmony among skiers and snowboarders” known as Wasatch Equality, brought a federal civil rights complaint in 2014 in Salt Lake City.

The suit claimed Alta’s ban on snowboarding unconstitutionally discriminated against them in violation of their equal protection rights under the Fifth and 14th Amendments.

To sustain a civil rights action, “state action” is necessary as only governmental action, not private conduct, receives equal protection scrutiny under the 14th Amendment.

Plaintiffs attempted to find state action in Alta operating 1,800 of its 2,130 acres on land owned by co-defendant, the U.S. Forest Service, pursuant to a federal permit. Alta, the only resort operating on federal land while banning snowboarding, pays the U.S. government an annual usage fee of approximately $400,000 for the privilege.

The complaint alleged skiers and snowboarders have always been hostile to each other and posited that the ban arose from Alta’s irrational animus against snowboarders. Perhaps seeking to link the charged discrimination with conduct from a darker era, plaintiffs sought to support their claim by pointing to the stark signs in Alta’s ticket windows warning “No Snowboards” and cited the Alta trail maps and website declaring “Alta is a skier’s mountain” and that “snowboarding is not allowed.”

Further evidencing the alleged discrimination against snowboarders, Alta’s general manager was quoted in the complaint proclaiming: “Anyone who uses the words rip, tear or shred will never be welcome at Alta.” The resort’s GM defiantly pledged “as long as (he was) alive snowboarders will never be allowed at Alta.”

Alta’s ski patrol director added that the resort’s policies simply reflected the predilections of its customer base “who prefer to ski where there’s no snowboarding.”

Plaintiffs claimed this kind of animus from the resort fueled the discrimination they suffered at the hands of its skiing customers, who verbally assaulted Wasatch members, including profane videos, the least of which advised snowboarders to “stay the hell off this mountain.”

Plaintiffs attributed the discriminatory snowboard ban to the forest service based on its annual approval of Alta’s winter site operation plan and receipt of the usage fee and claimed, “Defendants openly market that discrimination in an attempt to increase revenue.”

Asserting the defendants’ irrational ban violated the equal protection clause, plaintiffs sought both a declaration that banning snowboarders was unconstitutional, and an injunction against enforcement of the ban.

Alta and the forest service each moved to dismiss based on the absence of state action. The district court granted the motions, finding the forest service played no role in Alta’s decision to ban snowboarding and its receipt of an annual usage fee did not comprise sufficient government involvement to comprise state action.

On appeal, the 10th U.S. Circuit Court of Appeals recently noted how courts employ various tests to evaluate whether challenged conduct amounts to state action, but the underlying consideration is always whether the conduct allegedly depriving a federal right is “fairly attributable to the state.” The plaintiffs asserted they pleaded sufficient facts to prevail under any test.

Attempting to paint Alta’s relationship with the forest service as “complicated and entangled,” plaintiffs depicted a situation where: The forest service approved Alta’s site operation plan, which states it has the right to exclude certain devices; the forest service approved Alta’s use of the resort, including signage and ski routes; the Alta trail map stating snowboarding was barred bore logos of both Alta and the forest service; and the Alta GM’s public justifications for the snowboarding ban included “the forest service says it’s OK.”

After granting all reasonable inferences in plaintiffs’ favor, the 10th Circuit found the complaint at most pleads the forest service knew of Alta’s snowboard policy and continued to approve its annual permit, which is insufficient to attribute to it the discriminatory conduct. A general awareness of the snowboarding ban is not enough to establish state action.

The complaint did not show the forest service approved or encouraged the ban, or that it participated in enforcing the ban, merely that it reviewed and approved a site operation plan authorizing Alta to exclude certain skiing devices while collecting a usage fee.

The plaintiffs did not plead that Alta acted jointly or in concert with the Forest Service to effect the snowboard ban.

Because the forest service’s role was limited and insufficient to comprise state action, the Rule 12(b)(6) dismissal was affirmed. Wasatch Equality v. Alta Ski Lifts Co., No. 14-4152 (10th Cir. April 19, 2016).

To view this article as it appears in the Chicago Daily Law Bulletin, click here.