U.S. Court of Appeals for Tenth Circuit: Summaries of Selected Opinions, 0716 COBJ, Vol. 45 No. 7 Pg. 113
Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website.
No. 14-4152. Wasatch Equality v. Alta Ski Lifts Co. 04/19/2016. D. Utah. Judge Moritz. Snowboarders Excluded From Ski Area—Federal Land—Equal Protection—State Action.
Plaintiff filed suit to challenge a snowboard ban at the defendant ski area, claiming the ban unconstitutionally discriminated against snowboarders and denied them equal protection of the law. Recognizing that constitutional claims cannot be predicated on private action, plaintiff asserted that the ban was “state action” because the ski area was on federal land and was operated under a permit issued by the U.S. Forest Service. The district court dismissed the case for failure to identify a state action.
The Tenth Circuit noted that the Equal Protection Clause prohibits the government from denying equal protection. Private conduct, even if discriminatory or wrongful, is not covered. The underlying question is whether the conduct is fairly attributable to the government. The Tenth Circuit rejected plaintiff’s arguments on state action. First, the ski area and the Forest Service did not have a symbiotic relationship whereby the Forest Service had insinuated itself into a position of interdependence with the ski area such that it was a joint participant. The ski area was not indispensable to the Forest Service’s purpose, nor did the Forest Service participate in the funding and creation of the ski area. Second, the nexus test did not apply because the evidence showed only that the Forest Service knew of the ban, not that it approved of or encouraged it. Third, the joint action test was not met because no evidence showed that the Forest Service and the ski area acted in concert to effect a particular deprivation of constitutional rights. Mere acquiescence is insufficient. Fourth, the public function test...
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