Saving yourself while sacrificing the rest of an industry. Is anyone going to buy you a drink for winning when you just made it easier to sue them?

In the US Forest Service response to the lawsuit to open snowboarding at Alta, allegations were made by the USFS that are going to come back and haunt all other ski areas in states with weak skier safety statutes.

Alta is one of three ski areas that do not allow snowboarding. Deer Valley and Mad River Glen are the other two. Alta and the US Forest Service were sued last year by a group of snowboarders wanting to open Alta to snowboarding. The lawsuit was based on Federal constitutional law, and the legal arguments have little relevance here. Except the USFS defense to the lawsuit placed into the record some statements that can create havoc in lawsuits against other ski areas.

A ski area operating on USFS land must file an Operation Plan. If the resort is open year round the plan may have two plans, a Winter Operation Plan and a Summer Operation Plan. The USFS in referencing the Alta’s Winter Operation plan quotes it stating:

Additionally, the Operating Plan provides that Alta reserves the right to exclude those whose “skiing device” is deemed to create an “unnecessary risk,” causes “undue damage to the quality of the snow,” and “is not consistent with [Alta’s] business management decisions.”

In another section of the USFS motion they quote the plan as:

Alta Ski Area reserves the right to exclude any type of skiing device that they deem creates an unnecessary risk to other skiers and/or the user of the device, or any device that they deem causes undue damages to the quality of the snow, or is not consistent with their business management decisions.

So snowboards have been labeled by a ski area and the USFS as an “unnecessary risk.” That risk in the second paragraph applies to other skiers on the mountain and the user. Another issue I find almost comical is the argument that snowboarders have a blind spot.

First, snowboarders go down the mountain facing sideways, whereas skiers go down the mountain facing forward and directly downhill. ECF No. 2, ¶ 87. A snowboarder’s side-ways orientation creates a blind-spot that they must turn into; skiers do not turn into their blind spot.

But so do skiers, and walkers, and people on an inner tube going down the hill. The blind spot is directly behind your head (your eyes) were you can’t see. That blind spot is not based on what is on your feet, but is based on your orientation to the other people.  A snowboarder going downhill has an identical blind spot to a skier crossing the hill. Neither can see behind them.

The issue is where a ski area can be sued for injuries of a skier; any injuries the skier alleges were caused by the snowboarder are going to be buttressed by the USFS motion and Alta’s Winter Operation Plan. Maybe even if injuries they do to themselves?

Are these issues critical to other ski areas? Hopefully not. However, they may be thrown up in other cases and can provide testimony that can influence a jury.

What do you think? Leave a comment.

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What is the basis for the snowboarder’s lawsuit against ALTA & the USFS? Number 1 question I’ve been asked the last 2 weeks, so I asked

I met the attorney representing the four snowboarders and two of the plaintiff’s in their suit to open ALTA to snowboarding. They are committed and not just 20 something losers in Colorado to check out the lawns…..

Here was the statement on how and why I got from their attorney Jonathan R. Schofield.

Although Alta was one of the first resorts to allow snowboarding, Alta began banning snowboarders from its public land in the 1980s with the approval of the U.S. Forest Service.  Meanwhile, Alta invites “skiers” of all ages and ability levels on this same land regardless of, among other things, the size, shape, or type of “ski” actually used.  For instance, a variety of skis, mono-skis, and even tele-boards are all allowed at Alta, even though they are nearly identical to snowboards in many respects.  On its face, Alta’s no-snowboarding policy treats snowboarders differently than skiers by excluding snowboarders from equal access to public land.

The Constitution guarantees fairness of the laws, and the Equal Protection Clause of the Fourteenth Amendment guarantees that similarly-situated persons will be treated alike unless governmental discrimination is, at a minimum, rationally related to a legitimate interest.  Because Alta operates under a government permit on public land and the Forest Service approves Alta’s actions, Alta and the Forest Service are government actors and their conduct must be lawful under the Equal Protection Clause.  Arguably, Alta has a legitimate interest in safely and effectively operating a ski resort under its permit.  However, as alleged in the lawsuit, there is no rational relationship between Alta’s snowboarding ban and Alta’s interest in operating its resort.  The lawsuit further alleges that the reasons offered to justify the snowboarding ban are mere pretext for animus (dislike) of the type of people believed to be “snowboarders.”  Animus is inherently irrational and can never justify governmental discrimination.

The lawsuit is available in its entirety by clicking here.

If you want to stay on top of the suit, the group has a non-profit called Wasatch Equality, with a website here.

I don’t know if they are going to win, but I bought a t-shirt. J

What do you think? Leave a comment.

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By Recreation Law    Rec-law@recreation-law.com      James H. Moss         #Authorrank

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