Appeals Court: Snowboarders Don’t Have A Constitutional Right To Ski Slopes

Image courtesy of Eric Arnold

While it might be not-cool for a private ski resort to bar snowboarders from the ski slopes, does that change when the resort on government land? Would telling snowboarders to go elsewhere be a violation of their Constitutional rights? No — at least according to a federal appeals court.

Back in 2014, we told you about a lawsuit filed by a group of snowboarders against the United States Forest Service, which controls most of the land on which Utah’s Alta Ski Area is located. The snowboarders alleged that Alta’s ban on snowboarding violated their rights under the Fifth and Fourteenth Amendments, both of which say that no one shall be deprived of “life, liberty, or property, without due process of law.”

Much of the Alta Ski Area — one of only three resorts in the U.S. to ban snowboarders — is located on federal land, and the U.S. Forest Service must periodically re-approve the resort’s management plan. That plan includes the ski area reserving the right to exclude any activities it deems a risk to other skiers, might mess with its snow, or is otherwise inconsistent with its business model.

The snowboarding plaintiffs contend that, by signing off on Alta’s ban, the Forest Service is depriving them of their constitutionally protected rights, and that the ski area’s only basis for barring boarders is an irrational dislike of the sport.

In 2014, the District Court dismissed the snowboarders’ lawsuit, saying that the plaintiffs had failed to demonstrate a “state action.” While the government does approve the management plan and receives some money from Alta, the Forest Service’s connection to the snowboarding ban is not sufficient to make the case that the U.S. government was banning the practice.

The snowboarders appealed, arguing that the District Court failed to accept the facts presented as true, and to grant all reasonable inferences in favor of the plaintiffs.

However, in a ruling [PDF] released earlier this week, a Tenth Circuit Court of Appeals panel notes that while a court might accept facts as true, there is no obligation to accept that the plaintiffs’ “legal conclusions as true.”

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” writes the appeals court, quoting from a 2012 Tenth Circuit decision.

Regardless, the appeals panel says it reviewed the facts presented by plaintiffs and asked whether they do indeed back up a claim that the snowboard ban violates the Fourteenth Amendment.

There are a number of ways for a court to consider whether the government’s connection to a private action crosses the line — has the government involved itself so much in the affairs of a private party that a “symbiotic relationship” has developed? Is the connection between the government and the private party so close that the action of the private party “may be fairly treated as that of the State itself”? Is the private party a “willful participant in joint activity” with the state? And has the private party been given authority that is “traditionally exclusively reserved to the state”?

Even if the answer to any of these is “yes,” the court must still determine whether the disputed action is actually attributable to the state.

The plaintiffs had argued that statements from Alta management — like the general manager, who allegedly said the snowboard ban is legitimate because “the Forest Service says it’s OK” — indicated that the Service had explicitly given its approval of the ban.

The snowboarders had also claimed that the fees paid by Alta to the Forest Service shows that the government “depends on Alta to operate the resort on National Forest land for the public,” and that without those fees, “the Government would be forced to either assume or abandon the operations or enter into an identical arrangement for another entity like Alta to assume operations.”

However, the appeals court counters that the $400,000/year paid by Alta to the USFS is only .1% of the Service’s annual budget, and represents just one of more than 120 ski resorts in the country with a similar arrangement. So, in the court’s view, if Alta Ski Area were to vanish, it would not have any significant impact on the operations of the USFS.

Also, because the government did nothing to contribute to the development of Alta other than to lease the land for the resort, the appeals panel concluded that the snowboarders’ argument was stretched too far.

“[T]he complaint at best establishes that the Forest Service knows about the snowboard ban,” explains the court, “and continues to approve its permit each year notwithstanding the ban.”

As for the Service’s annual re-approval of the Alta management plan, the court notes that the USFS “doesn’t make Alta’s permit contingent upon a snowboard ban or otherwise encourage a snowboard ban.”

[via Courthouse News]

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