Can Ski Resorts Exclude Snowboarding? Federal Court Says “Yes”

By: Matthew C. Piccolo

All is not well in Utah’s snowy, white slopes. Disgruntled snowboarders chose to file a federal lawsuit challenging Alta Ski Resort’s long-standing policy of allowing the resort’s customers to use skis but not snowboards. Alta is one of 120 ski resorts that operate on U.S. Forest Service lands, and the only one that limits customers to skiing.

Despite the plaintiffs’ creative arguments, the federal district court flatly rejected their claims.

First, the court discarded their equal-protection claim. Under rational-basis review, a standard highly deferential to government, the court held that not only did the plaintiffs not present a viable claim, but their complaint itself also “reveals that Alta’s decision to ban snowboards had a rational basis.” The court pulled the following reasons for Alta’s snowboarding ban from the plaintiffs’ complaint:

1. Alta’s chosen business model caters to a skier-only market.
2. Alta believes its terrain is not conducive to snowboarders.
3. Surveys have confirmed to Alta that a large number of skiers prefer Alta because of its business model to prohibit snowboards.
4. Businesses in and surrounding Alta support a skiers-only destination at Alta.
5. Snowboarders have a different “blind spot” than skiers and snowboarders face differently than skiers, both of which cause concerns about safety. This is based, among other anecdotes provided in the Complaint, on skiers’ claims that snowboarders “cut you off,” and “get in the way,” and that without snowboards the “entire experience” was “more peaceful, safe, and enjoyable.”
6. Snowboarders attack the snow differently than skiers (“So nice not to hear the grinding sound . . . ”). Whereas skiers ski around moguls, snowboarders cut them off.

The court concluded that these reasons provided a rational basis for banning snowboards and that “[a] business, even a skiing business on Forest Service property, enjoys the right to manage its business pursuant to its preferred business model, even if others disagree with it.”

The plaintiffs’ most intriguing, and controversial, argument was that Alta discriminates against snowboarders because of animus toward them and their culture. The plaintiffs claimed that Alta chooses to ban snowboarding primarily, if not solely, because “snowboarders are undesirable people with obnoxious habits and characteristics. . . . [The plaintiffs] claim that the restriction was against snowboarders, as people, and not merely an equipment restriction.”

While this argument might sound strange, skiers and snowboarders have experienced a deepening rift in their relationship. For some this rift is based on differences in technique used and snowboarders’ perceived negative impact on the slopes; for others it probably is related to the particular culture skiers view as connected with snowboarders.

Whatever the cause of the rift, the court rejected the plaintiffs’ argument because an animus argument becomes relevant only “(1) . . . where the animus is based on a protected status (i.e., race, alienage or national origin) or a fundamental right (e.g., the right to vote) or (2) when there is no rational basis and animus appears to be the only reason for the discriminatory state action.” (citing U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)).

Because the court held that Alta’s ban is not based on a protected status and does have a rational basis, the court could have stopped there. Instead, it also addressed the merits of the animus claim.

It held that under Twombly and Iqbal the claim was not plausible because “the allegations consist almost entirely of anecdotes based on second and third-hand hearsay from YouTube videos and the like, with virtually no direct evidence linking Alta’s decision-makers to the alleged animus.” Further, the court noted that “Alta’s snowboard policy bans only snowboards from Alta, not people. It is an equipment restriction only.” Indeed, “they are welcome at Alta so long as they, just like sledders and snowshoers, or any other person, abide by the skiers-only policy.

This second point might be questionable given its similarity to the status-versus-conduct argument rejected in Loving v. Virginia. There, the Supreme Court cast aside the argument that anti-miscegenation statutes do not violate equal protection because blacks could still marry other blacks, just not whites (this argument has also been applied in the same-sex marriage debate). In other words, the Court said government could not regulate their conduct (who they marry) as a pretext for discriminating against them because of their race (who they are).

Here, snowboarders can argue that Alta is discriminating against them because of who they are—their personality traits and culture—not because of what they do. Then again, unlike skin tone, which is immutable, snowboarders might have a difficult time proving that their “undesirable” traits are immutable.

Snowboarders can also argue that, like the “hippies” in Moreno, they are a politically unpopular group being targeted for maltreatment. However, proving sufficient unpopularity and targeted animus is difficult, as demonstrated by the plaintiffs’ failed argument in this case.

Interestingly, the court went above and beyond in this case. The court didn’t need to address any of these equal-protection arguments because it had already dismissed the plaintiffs’ claims based on two other factors.

First, the court held that the Constitution’s Property Clause bars the plaintiffs’ claim because the Clause gives the U.S. Forest Service discretionary authority to administer public lands.

Second, the court held that for purposes of constitutional analysis Alta is not a state actor. While Alta leases land from the U.S. Forest Service, the Forest Service did nothing to influence Alta’s decision to ban snowboards—a point the court reiterated multiple times. In fact, Alta’s lease specifically grants it “sole authority” to make that decision. Unfortunately for the plaintiffs, no state action means no case.

The district court’s decision is probably correct. The lack of state action is plainly evident, and the plaintiffs’ equal-protection claim, particularly their animus claim, was too tenuous. Animus claims are serious and should not be taken lightly. Plaintiffs should have a high burden to prove animus exists and is connected to the action they challenge. Otherwise, just about anyone can attest government is out to get him or her.

For now, Alta has won the battle, and its skiers still have the entire hill to themselves.