DENVER (CN) – Snowboarders pushed the 10th Circuit on Tuesday to strike down a skiers-only policy at a Utah resort that they say openly discriminates against them.
Alta Ski Area, a resort in the Wasatch Mountains of Salt Lake County in Utah, has operated for more than 70 years on a special-use permit from the U.S. Forest Service, and has always been exclusively marketed and open to skiers.
In a federal complaint filed last year, four snowboarders and Wasatch Equality accused Alta and the Forest Service of violating their equal-protection rights under the 14th Amendment.
U.S. Judge Dee Benson nevertheless dismissed the case, finding that “the equal protection clause is not a general fairness law that allows everyone who feels discriminated against to bring an action in federal court.”
“All laws discriminate in one way or another, which is the very nature of laws and regulations,” Benson wrote in September 2014.
A three-judge panel of the 10th Circuit met Tuesday to debate reviving the case.
“This appeal is not about snowboarding and skiing,” Jonathan Schofield, an attorney for the snowboarders in Salt Lake City, said.
Schofield, of Parr, Brown, Gee & Loveless, insisted that his clients have alleged “a plausible equal protection violation.”
“There was no rational basis for the ban,” Schofield said, arguing that Alta was “targeting a group of people who were undesirable on that mountain.”
Claiming that his team “can rebut every single rationalization” that Alta and the Forest Service have provided, Schofield said, “we’re entitled to discovery.”
Blasting Alta’s “pretextual” attempts to defend the ban as an equipment restriction, Schofield told the judges that snowboarding is no more dangerous than skiing.
“There’s evidence that more accidents happen when skiing,” Schofield said.
Judge Gregory Phillips questioned whether Alta has a right to block someone from bringing a toboggan to the area.
“You make is sound like the Forest Service has an animus against snowboarders,” Phillips said. “Something doesn’t compute.”
Judge Nancy Moritz further questioned how far this alleged discrimination could go.
“How would they enforce … orchestrate this ban?” she asked.
Schofield cited the use of “a ski ranger on the mountain that takes people skiing.” “They won’t take snowboarders,” the attorney said.
When asked why his clients named the U.S. Forest Service as a defendant in the lawsuit, Schofield explained that the government technically had to approve Alta’s policies because of the federal nature of Alta’s Forest Service-permitted land.
“If it were not for the approval of the ban, the ban would not exist,” Schofield said.
Frederick Thaler, of Ray, Quinney, and Nebeker, argued for Alta Ski Region, saying the snowboarders are “trying to put a square peg in a round hole.”
“This case is about equipment, not about people,” Thaler said, going on to describe a situation in which an individual, who both skied and snowboarded, might approach the resort with a snowboard and be turned away – only to be accepted if they came back with skis, the permitted equipment on the mountain.
Thaler disputed that the case is an issue of, “you’re a skier, we like you, we’ll let it slide.”
“This case is very novel,” Thaler said. “It’s important to take a step back and look at it from a 3,000-foot view.”
Jared Bennett, representing the U.S. Forest Service, told the judges that the government was not receiving any sort of benefit from the resort’s snowboarder ban, and that the policy stayed within the jurisdiction of local law.
“There is nothing in the complaint to suggest that the government is coercing Alta,” Bennett said.
On rebuttal, Schofield urged the court “to realize the government has already decided what this land should be used for.”
“We’re not saying we have control of what the government does – they don’t get to decide what kind of people they like,” Schofield said.
The attorney wrapped up with a reminder of the signs on Alta’s ski resort property.
“They don’t say ‘no snowboarding, no toboggans,'” Schofield said. “They say ‘no snowboarders.'”
Judge Harris Hartz rounded out the appellate panel.
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