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Thursday, January 16, 2014

"Alta is for skiers" . . . unconstitutional?

So claim "four snowboarders and a Utah nonprofit" in a recently filed lawsuit.

“Because of Alta’s relationship with the government, Alta’s actions must comply with the Constitution’s Equal Protection Clause,” says attorney Jonathan Schofield in the press release. “Alta’s prohibition against snowboarders excludes a particular class of individuals from use and enjoyment of public land based on irrational discrimination against snowboarders, which denies them equal protection under the law as guaranteed by the Fourteenth Amendment.”

Like the man said, I guess:  "Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate."

Posted by Rick Garnett on January 16, 2014 at 02:28 PM in Constitutional thoughts | Permalink


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I once lost an ADA case against a ski hill, representing a plaintiff who had been barred from using her adaptive skiing device. They wanted her to use a different one that was slower and more cumbersome. She had been a serious skier and all-around athlete before her injury. The 9th Circuit ruled, essentially, that a disabled person only has to be accommodated to the extent of getting from the top of the mountain to the bottom; she wasn't entitled to a comparable opportunity to challenge herself as an athlete.

I still wonder if there's something I could have done differently to convince the court that this was unjust.

Posted by: Jennifer Hendricks | Apr 21, 2016 12:08:10 PM

We had a case like that in San Francisco, in 1984. The plaintiff sued Diane Feinstein (then the mayor) because he wasn't allowed to play softball on the baseball diamonds in Golden Gate Park. "Plaintiff claims that by playing softball 'they [plaintiff and his friends] are making a statement about the right to democracy in recreation as opposed to elitism.'"

It was of the first Rule 11 decisions by the principal author of the then-new Rule 11, William S Schwarzer. I later was riding in a taxi in SF and the driver turned out to be the plaintiff, who was still quite upset about the whole thing.


Posted by: John Steele | Jan 21, 2014 9:59:52 PM

Susannah -- true, in other contexts (for example, when the "state action" is more clear, or when the "exclusion" at issue has more serious implications) then we might not think "culture and vibe" enough. Here, though, I think the "public lands" dimension is being overstated (as is the exclusion) -- it is as a result of the decision made by an entity (Alta) which has been given by the government the right to operate a business that some activities (not some persons) are being constrained.

Posted by: Rick Garnett | Jan 21, 2014 1:38:15 PM

What I think is important about this issue, and what makes it not a crank issue, is whether the arguments we come up with on one side or the other would be acceptable if brought up in a context where there was more at stake. Alta sounds delightful, and I personally would love to experience the "specific culture and vibe," but is that a good enough reason to exclude an entire group of outdoor enthusiasts who are presumably equally entitled to enjoy the terrain?

@Rose - skiing on the same mountain with snowboarders really is awful because they scrape off the snow, move down the mountain a different way that makes conflict more likely, and tend to sit down at random spots in the middle of the mountain for some reason. Being able to ski a mountain without snowboarders would be a significantly different experience.

Posted by: Susannah Pollvogt | Jan 21, 2014 12:05:31 PM

Hi Rose -- I guess I *do* see this as a "crank" issue, and not because public-lands-use questions are not important, but because Alta is one of only two ski areas in the entire west that does not allow snowboarders and, given Alta's terrain, it is not very well suited to snowboarders in any event. (Right over the ridge is Snowbird, where snowboarders are allowed.) And, public lands or not, it seems relevant to me that Alta has built up, for 75 years, a specific culture and vibe, and there's no reason (it seems to me) to say that the fact it has done so using land leased from the government precludes it from differentiating itself in this way.

Posted by: Rick Garnett | Jan 21, 2014 10:50:51 AM

Federal public land use debate is an important issue in the West, less so in the East because we have less of it. I don't understand why this is a less important issue than access to public lands for logging, hunting, snowmobiling, etc.

I guess I should feel sorry for the poor skiers who might have to wait a little longer in line? Or be sad that the conditions they might not be able to access as much powder as they feel entitled to?

I don't think this is just a crank issue to be dimissed. Why are skiers feeling so entitled to use public lands the way they demand? Maybe we should just get rid of the lifts and make them hike up and telemark down, like in the old days.

Posted by: rose | Jan 21, 2014 10:35:10 AM

Hi Patrick -- Check out the comments following the article to which I linked . . . who knew there were so many experts on state-action doctrine and tiers of scrutiny out reading Outside? Yet another reason to love the magazine!

Posted by: Rick Garnett | Jan 17, 2014 9:58:39 AM

Snowboarder: status or conduct?

Posted by: Susannah Pollvogt | Jan 16, 2014 8:56:27 PM

First, I have to laugh - when I read about this lawsuit, I immediately came to prawfsblawg KNOWING that this suit would be addressed by Professor Garnett. As always sir, you do not disappoint. Second, what are the chances that this lawsuit succeeds and finally opens our nation's slopes to that disadvantaged class of citizens for whom neither skiing nor snowboarding is an option, due to (ahem) center-of-gravity issues. Who among the Court will deny me my right to granny-sled down Big Sky?!

Posted by: Patrick Bottini | Jan 16, 2014 7:15:09 PM

There certainly is a rational basis for excluding snowboarders, they gum up the works when loading and unloading lifts. Also they scrape up all the powder.

Posted by: skibum | Jan 16, 2014 3:14:48 PM

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