Federal appeals court considers legal challenge to Alta’s snowboarding ban

Posted at 1:55 PM, Nov 17, 2015
and last updated 2015-11-17 20:24:23-05

DENVER -- A federal appeals court is hearing a challenge to Alta Ski Area's longstanding snowboarding ban and whether to revive a lawsuit over it.

On Tuesday, the 10th U.S. Circuit Court of Appeals heard arguments in the case involving a group of snowboarders calling themselves "Wasatch Equality." The group has sued Alta and the U.S. Forest Service, who leases the land to the resort, arguing that the snowboarding ban violates the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution by denying them access to the mountain.

"Utah is a family state. All our families snowboard. We would like to be able to go to the best resort in the world and share that experience," Drew Hicken, one of the plaintiffs, told FOX 13 outside of court.

Members of the group

Members of the group "Wasatch Equality" leave the 10th U.S. Circuit Court of Appeals in Denver.

The Equal Protection clause has been used in cases involving discrimination based on race, gender, religion and, most recently, cases involving same-sex marriage. Wasatch Equality's lawyer, Jonathan Schofield, insisted he was not trying to get snowboarders declared a "protected class," but press for equal access on government land.

"You don’t get to play favorites and decide who can come and who can’t," he told FOX 13.

The panel of three judges focused on whether to revive the lawsuit that was dismissed by a federal judge in Salt Lake City, but asked about the merits of the case.

"What if I want to take my toboggan down the slope? Would that be an equal protection violation?" asked Judge Gregory Phillips.

Judge Harris Hartz questioned if the plaintiffs could prevail before a jury at trial, and whether their claims could pass a rational basis test. Schofield believed they were entitled to find out through discovery. Judge Nancy Moritz quizzed Schofield about the U.S. Forest Service's role in all of this, and whether they were supporting Alta's decision to ban snowboarders.

"They are putting the weight of the federal government behind this policy which says a skier only mountain," Schofield argued.

Alta insisted that it doesn't discriminate against people, but has an equipment policy.

Wasatch Equality attorney Jonathan Schofield, in an interview with FOX 13 outside the 10th U.S. Circuit Court of Appeals in Denver.

Wasatch Equality attorney Jonathan Schofield, in an interview with FOX 13 outside the 10th U.S. Circuit Court of Appeals in Denver.

"This case is about equipment. It’s not about people. It’s about a board," said Alta Ski Area attorney Rick Thaler. "They’re the same person, the same beliefs, same race, gender, speech, clothing, cultural group."

The U.S. Forest Service acknowledged that it has more than 100 other places in the nation where snowboarding is allowed, and Alta is the only lease that forbids snowboarding. Still, the government said it is not in the business of running a ski resort.

"There is no coercive behavior on the part of the government against snowboarders at Alta," assistant U.S. Attorney Jared Bennett argued.

He said that Alta is managing public lands, giving it some leeway to decide what to do. Bennett likened it to wood, mineral and gas leases on public lands that the government has with contractors.

In rebuttal arguments, Schofield argued that the government declared the land Alta leases would be used for skiing and other winter sports.

"Once the government decides what it’s going to do, they don’t get to decide what kind of people they like," Schofield said in his rebuttal arguments.

"You say kind of people like it’s an immutable characteristic?" Judge Phillips asked.

"There are many people that snowboarder is who they are, how they identify," Schofield replied, arguing that Alta has targeted snowboarders in hostile language as an excuse to keep them off the mountain.

The judges on the 10th Circuit panel took the case under advisement with a ruling expected within months.