Vail Daily column: Is snowboarding a crime?
You remember a few years ago when everywhere you went you ran into a bumper sticker that said, “Skateboarding is not a crime”? Don’t know who thought that up, but it was everywhere. Jump forward a decade and a half, and you gotta ask, “Is snowboarding a crime?”
Why, you may inquire, do we have to ask if snowboarding is a crime?
Well, it’s this: dateline Utah.
Earlier this month, a group of snowboarders argued before the 10th Circuit Court of Appeals, in Denver, for the right to shred the pow at Alta. As you may know, Alta bans — and has always banned — the evil snowboard from its slopes.
As a quick aside, if the shredders were banned in Utah, why were they arguing their case in Denver?
It’s because the suit was filed in federal court instead of state court (in part because Alta leases federal lands), and the only federal appeals court in the 10th Circuit is in Denver. I know we’re getting a little off point here, but the federal system works like this; there are federal district courts sprinkled throughout a “circuit” where trials are heard. There are 11 circuits, each one containing one federal court of appeals. Denver is home to the 10th Circuit, which encompasses Oklahoma, Kansas, Wyoming, Colorado, New Mexico and Utah.
If an appeal fails and one wants to take a matter to a higher court, what remains is to petition to the United States Supreme Court, which may, at its discretion, hear, or determine not to hear, the further appeal.
Writ of certiorari denied
Taking a matter to the Supreme Court is upon a “writ of certiorari,” (literally the word “certiorari” is Latin for “to be more fully informed” and a “writ” is an order for a lower court to turn over its record to a higher court). The U.S. Supreme Court is selective about which cases it will hear on appeal. A writ of certiorari is granted only when at least three of the nine members of the Supreme Court believe that the case involves a sufficiently significant federal question in the public interest. By denying a writ, the Supreme Court says it will let the lower court decision stand, particularly if it conforms to accepted precedents (previously decided cases).
That said, it is likely that what happens in Denver regarding evil snowboards will likely stay in Denver.
Okay now, back to the matter at hand.
Lawyers for the Alta Ski Area argued that Alta has nothing against snowboarders per se—it’s just their equipment. If Alta can’t ban snowboards on its slopes, what’s to prevent tobogganers or even snowmobiles? “This case,” one of the Alta lawyers argued, “is about equipment; not people.”
Equipment, not People
Lawyers for the four snowboarders who brought the suit countered that Alta doesn’t have the right to bar the band of boarders from use of public lands, particularly as those lands are dedicated in winter to sliding downhill. With what I am sure must have been a finger raised in protest, the lawyers argued that the other 119 ski resorts that operate on public land allow snowboarding and the only other resorts which ban it are Deer Valley, in Utah, and Mad River Glen, in Vermont, which are on private land.
Alta’s lawyers countered that Alta has every right in the world — and under the United States Constitution — to offer a boarder-free experience to its customers. The U.S. Forest Service which approved Alta’s permit, backed the ski area.
Equal Protection Clause
What all of this comes down to is that the boarders claim that their Constitutional rights are being violated, specifically the equal protection clause of the 14th Amendment. That clause, which has been broadly interpreted, provides that no state shall deny, to any person within its jurisdiction, “the equal protection of the laws”.
To apply the equal protection clause to the band of boarders is, however — dare I say it? — a slippery slope. Traditionally “equal protection” applies to a status not an action. One can’t deny equal protection to a party because of what they are rather than denying equal protection for what they do. One cannot discriminate because of race, creed, sex, etc. but one can discriminate because what one purports may present a risk to others. What’s more, one cannot generally advance an equal protection claim against a private company; it is the state”which cannot deny equal protection.
If Alta discriminated against persons of color, there is little doubt that the equal protection clause would come screaming to the rescue. But here — that Alta doesn’t want snowboarders on its slopes — is another matter. Alta argued that the boarder’s blind spot makes the ski experience even more dangerous than it inherently is, and, anyway, they could make business decisions in the interest of their customers and their bottom line.
You should note that the only reason the boarders are appealing is the case was shown the door at the trial level in the district court in Utah. They are appealing because they lost there.
Will the boarders win this time around?
Not a snowball’s chance in hell.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.