Hopi Tribe v. Ariz. Snowbowl Resort Ltd. P'ship , 430 P.3d 362 ( 2018 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
HOPI TRIBE,
Plaintiff/Appellant,
v.
ARIZONA SNOWBOWL RESORT LIMITED PARTNERSHIP, ET AL.,
Defendants/Appellees.
No. CV-18-0057-PR
Filed November 29, 2018
Appeal from the Superior Court in Coconino County
The Honorable Mark R. Moran, Judge
No. CV2011-00701
AFFIRMED
Opinion of the Court of Appeals, Division One
244 Ariz. 259 (App. 2018)
VACATED AND REMANDED
COUNSEL:
Martin P. Clare, Campbell, Yost, Clare & Norell, P.C., Phoenix; and Michael D. Goodstein
(argued), Anne E. Lynch, Hunsucker Goodstein PC, Washington, DC, Attorneys for Hopi
Tribe
Paul G. Johnson, Scott F. Frerichs, John J. Egbert (argued), Jennings, Strouss & Salmon,
P.L.C., Phoenix, Attorneys for Arizona Snowbowl Resort Limited Partnership
John A. Klecan (argued), Renaud Cook Drury Mesaros PA, Phoenix; and Kathleen L.
Wieneke, Wieneke Law Group, P.L.C., Tempe, Attorneys for City of Flagstaff
Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at the Goldwater
Institute, Phoenix, Attorneys for Amicus Curiae Goldwater Institute
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT
Opinion of the Court
JUSTICE PELANDER authored the opinion of the Court, in which VICE CHIEF JUSTICE
BRUTINEL and JUSTICES TIMMER, GOULD, and LOPEZ joined. CHIEF JUSTICE
BALES, joined by JUSTICE BOLICK, dissented.
JUSTICE PELANDER, opinion of the Court:
¶1 Private parties may bring public nuisance claims in Arizona if the alleged
nuisance caused the plaintiff special injury, meaning “damage [that is] different in kind
or quality from that suffered by the public in common.” Armory Park Neighborhood Ass’n
v. Episcopal Cmty. Servs. in Ariz., 148 Ariz. 1, 5 (1985). Today we hold, as a matter of law,
that environmental damage to public land with religious, cultural, or emotional
significance to the plaintiff is not special injury for public nuisance purposes.
I.
¶2 The use of reclaimed wastewater for snowmaking on northern Arizona’s
San Francisco Peaks has been extensively debated and litigated. This case is the latest
chapter of that dispute. Over sixteen years ago, the City of Flagstaff contracted to sell
reclaimed wastewater to Arizona Snowbowl Resort Limited Partnership (“Snowbowl”)
for artificial snowmaking at its ski area on the Peaks. Because the Peaks are located on
federal land, this prompted the United States Forest Service to conduct a lengthy
environmental impact inquiry, culminating in that agency’s approval. Thereafter,
various tribes (including the Hopi Tribe), environmental groups, and other interested
parties unsuccessfully challenged the proposed snowmaking under several federal laws,
including the Religious Freedom Restoration Act (“RFRA”) of 1993, 42 U.S.C. §§ 2000bb
to 2000bb-4. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) (en banc).
¶3 Following that federal court litigation, Snowbowl, the City, the United
States Department of Agriculture, and the Hopi Tribe continued to discuss potential
alternatives to reclaimed water. No agreement was reached, however, and the Tribe
persistently alleged that no proposed administrative actions “could mitigate the adverse
effects of using reclaimed wastewater for artificial snowmaking at the Snowbowl.” The
City also held public hearings on the matter, at which the Tribe and other interested
parties voiced their opposition to the use of reclaimed wastewater on the Peaks. In 2010,
the City ultimately voted to proceed with the reclaimed water contract and, after more
public comment, denied a motion to reconsider.
¶4 The Hopi Tribe then filed this action in 2011 against the City on various
state law grounds, alleging among other things that the City’s “sale of reclaimed
wastewater to make artificial snow” is a public nuisance that “will result in unreasonable
harm to the environment and the Hopi Tribe.” As described in the Tribe’s complaint,
“[r]eclaimed wastewater is water that has been used and circulated through the City’s
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Opinion of the Court
municipal water sewer system, has passed through a treatment facility, and meets certain
standards.” The Tribe further alleged it “has special interests in the environment,
including the flora and fauna, of the San Francisco Peaks in the immediate vicinity of the
Snowbowl Resort Area.” The Tribe also claimed it “will suffer specific injury” from the
“runoff, windblown snow, increased unnatural noise, and elevated air pollution [that]
will pervade beyond the Snowbowl Resort Area” and into areas the Tribe uses “for
ceremonial practices, hunting[,] . . . the gathering of natural resources[,] . . . and
utilitarian purposes.” For example, “[n]atural resources that the Hopi collect, as well as
shrines, sacred areas, and springs on the Peaks will come into contact with the blown
reclaimed wastewater,” “negatively impact[ing]” the Tribe’s use of the wilderness and
surrounding areas. More broadly, the Tribe alleged that “the Snowbowl expansion
project,” “additional traffic,” and the very “presence of the Snowbowl Resort” itself will
adversely impact the “natural environment” and unduly interfere with the Tribe’s
cultural use of the public wilderness for religious and ceremonial purposes.
¶5 The City filed a third-party indemnification claim against Snowbowl, which
then moved to dismiss the Tribe’s public nuisance claim under Arizona Rule of Civil
Procedure 12(b)(6), arguing the Tribe’s alleged damages do not constitute the “special
harm” needed to maintain that claim. The City later joined in that motion, and the trial
court granted it, ruling that the Tribe “failed to satisfy the [special injury] requirement on
the basis of . . . religious or cultural practices.” (In its ruling, entered in August 2016, the
trial court noted the uncontested fact that “Snowbowl has used the reclaimed water since
2012.”) The court also granted Snowbowl and the City’s request for attorney fees under
A.R.S. § 12-341.01(A).
¶6 The court of appeals reversed, concluding that “the Tribe has alleged a
special injury sufficient to survive the motion to dismiss” because “interference with a
place of special importance can cause special injury to those personally affected, even
when that place of special importance is upon public land.” Hopi Tribe v. Ariz. Snowbowl
Resort Ltd. P’ship, 244 Ariz. 259, 263 ¶¶ 12–13, 264 ¶ 16 (App. 2018). To support this
conclusion, the court relied on Beatty v. Kurtz, 27 U.S. 566 (2 Pet.) (1829), which
purportedly “emphasi[zed] . . . the emotional, cultural, and religious significance of the
cemetery” at issue in that case. Hopi Tribe, 244 Ariz. at 263 ¶ 12. The court also vacated
the trial court’s fee award because “Snowbowl and the City can no longer be deemed the
successful parties.” Id. at 65 ¶ 18.
¶7 We granted review because whether an alleged special injury sufficiently
supports a claim for public nuisance is an issue of statewide importance. We have
jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S.
§ 12-120.24.
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Opinion of the Court
II.
¶8 “We review the dismissal of a complaint under Rule 12(b)(6) de novo.”
Zubia v. Shapiro, 243 Ariz. 412, 414 ¶ 13 (2018). In doing so, we assume as true the
complaint’s well-pleaded facts and will affirm only if, “as a matter of law[,] [the] plaintiffs
would not be entitled to relief under any interpretation of the facts susceptible of proof.”
Fid. Sec. Life Ins. Co. v. Ariz. Dep’t of Ins., 191 Ariz. 222, 224 ¶ 4 (1998).
¶9 Unlike private nuisances, which “‘affect[] a single individual or a definite
number of persons in the enjoyment of some private right,’” public nuisances are
characteristically broad in scope and “encompass[] any unreasonable interference with a
right common to the general public.” Armory Park, 148 Ariz. at 4 (quoting City of Phoenix
v. Johnson, 51 Ariz. 115, 123 (1938)); accord Restatement (Second) of Torts (“Restatement”)
§ 821B (Am. Law Inst. 1979). Thus, based on the notion that public rights “are normally
enforced only by public authorities,” 2 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick,
The Law of Torts § 403, at 639 (2d ed. 2011), the common law precluded private citizens’
actions to abate or suppress public nuisances. Armory Park, 148 Ariz. at 5.
¶10 The modern rule is more relaxed, allowing a private party to make a public
nuisance claim if his or her “damage [is] different in kind or quality from that suffered
by the public in common.” Id. This so-called “special injury” requirement serves two
important functions. First, it “relieve[s] defendants and the courts of the multiple actions
that might follow if every member of the public were allowed to sue for a common
wrong.” Id. Second, in keeping with principles of separation of powers and judicial
restraint, it ensures that “harm[s] . . . affect[ing] all members of the public equally [are]
handled by public officials” rather than by courts in private litigation. Id.; see also Engle
v. Clark, 53 Ariz. 472, 474 (1939) (rejecting private citizen’s action to enjoin a previously
declared public nuisance because such duty fell on the state’s attorney general “and the
other proper public authorities”); Restatement § 821C cmt. b.
¶11 “[T]he question of standing in Arizona is not a constitutional mandate”
because Arizona has “no counterpart to the ‘case or controversy’ requirement of the
federal constitution.” Armory Park, 148 Ariz. at 6. Nonetheless, both the trial court and
court of appeals framed the special injury issue here as “whether the Tribe sufficiently
alleged standing to maintain a common law public nuisance claim.” Hopi Tribe, 244 Ariz.
at 260 ¶ 2. That framing is understandable because this Court has equated the special
injury requirement with the plaintiff’s “standing to bring an action to enjoin a public
nuisance.” Armory Park, 148 Ariz. at 5; see also Sears v. Hull, 192 Ariz. 65, 70 ¶¶ 18–19
(1998). More precisely, however, special injury is a requisite element of a private
plaintiff’s prima facie public nuisance claim, Armory Park, 148 Ariz. at 5, the other element
being an “unreasonable interference with a right common to the general public” that
“affect[s] a considerable number of people,” id. at 4. Rather than equating special injury
with standing to sue, it is more apt to say that if that element is not sufficiently alleged or
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Opinion of the Court
proven, a private plaintiff’s public nuisance claim fails as a matter of law. Cf. Borton v.
Mangus, 145 P. 835, 836–37 (Kan. 1915) (stating that, although trial court dismissed public
nuisance action “on the ground that the plaintiff lacked legal capacity to sue,” he had
standing but did not establish any “special damage” from obstruction of public highway
and thus failed to “state facts which constitute a cause of action entitling him to relief”).
¶12 Solely for purposes of their motion to dismiss, Snowbowl and the City
concede the Tribe adequately alleged a public nuisance. Therefore, without addressing
that point, we limit our review to whether the Tribe sufficiently alleged special injury for
an actionable public nuisance claim.
A.
¶13 Although there is “[c]onsiderable disagreement . . . over the type of injury”
that is “sufficient to distinguish [a] plaintiff’s injuries from those experienced by the
general public,” Armory Park, 148 Ariz. at 5, generally “[i]t is not enough that [the
plaintiff] has suffered the same kind of harm or interference but to a greater extent or
degree,” Restatement § 821C cmt. b; see also Ariz. Copper Co. v. Gillespie, 12 Ariz. 190, 201
(1909) (stating that special injury is “different in kind, and not merely in degree, from that
suffered by the public generally”). But “[w]here to draw the line . . . is often a difficult
task” because “it is often a mere matter of degree . . . between the more immediate
obstruction or peculiar interference, which is a ground for special damage, and the more
remote obstruction or interference [that] is not.” Ariz. Copper, 12 Ariz. at 201 (quoting
Kaje v. Chi., St. Paul, Minneapolis & Omaha Ry. Co., 59 N.W. 493, 493 (Minn. 1894)). The
issue, then, is where that line falls in this case.
¶14 Primarily relying on In re Exxon Valdez, 104 F.3d 1196 (9th Cir. 1997),
Snowbowl contends that the alleged injury here is to the Tribe’s “desire to enjoy ‘pristine
natural surroundings,’” see id. at 1198, which “is a right shared by the public generally.”
Snowbowl argues that injury is not transformed into “special harm” “[j]ust because [the
Tribe’s] members . . . wish to access the Peaks for religious reasons” when “others’
motivations are environmental or recreational.” The Tribe counters that “the reclaimed
wastewater has directly and significantly impeded [its] use and enjoyment of a place of
special importance to the Tribe by thwarting [its] religious practices” on the Peaks.
According to the Tribe, such “significant interference with its use of sacred places that
have formed a central component of its cultural and religious life since before recorded
history” constitutes “injury [that] is clearly different in kind [from] that suffered by the
public.” The Tribe maintains that recognizing its injury as “special” “fits squarely within
long-established Arizona and other applicable precedent,” including Armory Park and
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Opinion of the Court
Beatty, and supports its public nuisance claim.1
¶15 We agree with Snowbowl. Contrary to the Tribe’s assertion that the place-
of-special-importance form of special injury is consistent with Arizona law, the only
public nuisance cases in which we have recognized special injury involved property or
pecuniary interests not present here. See, e.g., Armory Park, 148 Ariz. at 3, 5 (involving
trespass upon and resulting injury to plaintiff’s interest in land, and finding special
damage because defendant’s patrons’ actions “affected the [plaintiff’s] residents’ use and
enjoyment of their real property” (emphasis added)); Spur Indus., Inc. v. Del E. Webb Dev.
Co., 108 Ariz. 178, 184 (1972) (injury to plaintiff’s pecuniary interest from loss of sales due
to defendant’s cattle feedlot operation); Ariz. Copper, 12 Ariz. at 197, 202 (injury to
plaintiff’s property and pecuniary interests caused by defendant’s depositing of
sedimentary matter into river system, resulting in “direct individual injury” to plaintiff’s
irrigated, cultivated lands and crop-raising). In fact, in Sears we relied on Armory Park’s
property-based description of special injury to conclude that a tribal casino’s allegedly
substantial, negative impact on the “character and quality of [the plaintiffs’]
community”—a place of special importance to the plaintiffs—was, “as a matter of law,
not sufficient to establish . . . any special injury.” 192 Ariz. at 68 ¶ 6, 70 ¶ 22 (internal
quotation marks omitted). We therefore ordered the trial court to grant the defendant
Tribe’s motion to dismiss the action, including the public nuisance claim. Id. at 68 ¶ 7, 73
¶ 32.
¶16 The dissent argues that “[t]hese cases do not require that the interest at
stake be a property or pecuniary interest.” Infra ¶ 52. Perhaps not expressly, but they all
involved damage to or interference with such an interest and do not support recognizing
a new place-of-special-importance category. And we see good reason for generally
adhering to a property- and pecuniary-interest-based approach because, unlike the
proposed new category, it comports with the underlying, two-part rationale for the
special injury requirement. See supra ¶ 10.
¶17 First, because a particular place’s religious importance is inherently
subjective, see Navajo Nation, 535 F.3d at 1070, courts are ill-equipped to determine
whether “one form of incidental interference with an individual’s spiritual activities”
should be analyzed differently from that of another, Lyng v. Nw. Indian Cemetery Protective
Ass’n, 485 U.S. 439, 450 (1988); accord Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S.
872, 887 (1990) (“Repeatedly and in many different contexts, we have warned that courts
1 Conduct may constitute “a public nuisance within the concept of tort law, even if that
conduct is not specifically prohibited by the criminal law.” Armory Park, 148 Ariz. at 10.
Nonetheless, the Tribe does not allege a public nuisance within the meaning of Arizona
statutes that expressly address, define, and proscribe “public nuisance[s],” including a
provision that specifically refers to water. See A.R.S. §§ 13-2917, 36-601(A)(18).
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must not presume to determine the place of a particular belief in a religion or the
plausibility of a religious claim.”), superseded by statute on other grounds, RFRA, Pub. L.
No. 103-141, 107 Stat. 1488, as recognized in Holt v. Hobbs, 135 S. Ct. 853, 859–60 (2015). This
renders courts unable to comparatively “weigh the adverse effects” of an alleged
interference with a place of religious importance, Lyng, 485 U.S. at 449, potentially
allowing “every member of the public . . . to sue for a common wrong” when that is
precisely what the special injury requirement is meant to prevent, Armory Park, 148 Ariz.
at 5.
¶18 Second, equally if not more troubling is the effect the place-of-special-
importance category would have on the notion that “invasions of rights common to all of
the public should be left to be remedied by action by public officials.” Restatement § 821C
cmt. b; accord Armory Park, 148 Ariz. at 5. At its core, the special injury requirement serves
a gatekeeping function that prevents courts from deciding issues under the guise of
public nuisance claims when such issues are best left to public officials, a pivotal principle
in federal cases grappling with religious freedom challenges to public land uses.
¶19 Lyng illustrates this well. There, various parties, including “an Indian
organization, individual Indians, nature organizations and individual members of those
organizations, and the State of California,” brought a religious-freedom-based challenge
to a proposed road upgrade and timber harvesting in California’s Chimney Rock area.
485 U.S. at 443. The plaintiffs claimed that those projects violated their rights under the
First Amendment’s Free Exercise Clause and various federal statutes. Id.
¶20 The United States Supreme Court rejected the challenge, id. at 453, despite
recognizing that “the logging and road-building projects at issue in th[e] case could have
devastating effects on traditional Indian religious practices” that are “intimately and
inextricably bound up with the unique features of the Chimney Rock area,” id. at 451.
Even so, the Court reasoned that “government simply could not operate if it were
required to satisfy every citizen’s religious needs and desires” because what some
consider “essential to the[ir] spiritual well-being” will be “deeply offensive, and perhaps
incompatible . . . with the tenets of [others’] religion.” Id. at 452. The Court also
emphasized that the judiciary “cannot . . . reconcile the various competing demands on
government, many of them rooted in sincere religious belief, that inevitably arise in so
diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures
and other institutions.” Id.
¶21 As the Court in Lyng observed, “[w]hatever rights the Indians may have to
the use of the area, . . . those rights do not divest the Government of its right to use what
is, after all, its land.” Id. at 453. Accordingly, the Court declined to give plaintiffs a
potentially boundless “veto” or “religious servitude” that “could easily require de facto
beneficial ownership of some rather spacious tracts of public property.” Id. at 452–53; see
also Navajo Nation, 535 F.3d at 1063–64 (upholding governmental action against citizens’
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“individual veto” based on “religious beliefs, sensibilities, or tastes” because “giving one
religious sect a veto over the use of public park land would deprive others of the right to
use what is, by definition, land that belongs to everyone”). Although this case does not
involve First Amendment or federal statutory claims, it similarly illustrates how the
place-of-special-importance category the Tribe urges (and the court of appeals embraced)
would essentially empower a lone plaintiff to interfere with decisions by public officials
(made here after extensive input from interested parties, including the Tribe) concerning
the best use of public lands. Accordingly, we reject that new category because it would
contravene, not further, the dual rationales underlying the special injury requirement for
public nuisance claims.
¶22 The reclaimed water contract at issue here went through a nearly decade-
long review process in which the Tribe participated and actively voiced its opposition.
That process included a series of public hearings at which the City considered alternatives
to reclaimed water. And after approving the contract with Snowbowl, the City
considered, held public comment on, and ultimately denied a motion to reconsider its
decision. The U.S. Department of Agriculture and the U.S. Forest Service also conducted
inquiries under the National Environmental Procedure Act and ultimately approved the
use of reclaimed water for snowmaking on the Peaks. As noted above, supra ¶ 2, the
federal courts also rejected the claims of the Hopi Tribe and others that the use of recycled
wastewater for making artificial snow on the Peaks violates their rights under RFRA and
other federal statutes. Navajo Nation, 535 F.3d at 1062–63, 1070 (holding that “the
diminishment of spiritual fulfillment—serious though it may be—is not a ‘substantial
burden’ on the free exercise of religion,” despite plaintiffs’ claims that use of reclaimed
water “on a sacred mountain desecrates the entire mountain, deprecates their religious
ceremonies, and injures their religious sensibilities”).2
¶23 Aside from its disagreement with the outcome, the Tribe does not allege
that any aspect of this process was procedurally flawed or otherwise defective. And
despite the Tribe’s insistence that it does not seek a “unilateral veto,” it concedes that its
claim, if allowed to proceed, would require the trial court to “[weigh and balance the
equities of] an activity previously approved by other branches of the government.” This
clearly contradicts the rationale underlying the special injury requirement, and we
therefore decline the Tribe’s invitation to “[re]consider the benefits and harm” of using
2 Snowbowl and the City do not argue, nor do we hold, that the Tribe’s public nuisance
claim is barred by issue or claim preclusion principles based on the Tribe’s participation
in Navajo Nation or prior administrative and other governmental proceedings relating to
the reclaimed water contract. The court of appeals previously rejected such assertions.
See Hopi Tribe, 244 Ariz. at 262 ¶ 6. But this history does bear on the rationale for limiting
the type of special injury that will support such a claim, so as to allow public officials to
handle claims of harm that affect “rights common to all of the public.” Restatement
§ 821C cmt. b.
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reclaimed water for snowmaking on the Peaks. Because the Tribe has not presented
sufficient reason for departing from the property- and pecuniary-interest-based approach
that our case law has followed, we decline to do so here when the Tribe’s alleged injury
is different in degree, not in kind, and is best addressed by public officials or
congressional acts governing the Tribe’s use of public lands for religious purposes.
B.
¶24 The law of nuisance is aptly described as an “impenetrable jungle” that has
been “applied indiscriminately . . . as a substitute for any analysis of a problem.” W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 86, at 616–17 (5th ed. 1984). Indeed,
“some rather fine lines have been drawn” to determine what constitutes special injury,
id. at 647, often resulting in outcomes that are difficult to reconcile, see Ariz. Copper, 12
Ariz. at 202; Restatement § 821C cmt. b (discussing the “difficulty or impossibility of
drawing any satisfactory line” for special injury purposes). Thus, limiting special injury
to property or pecuniary interests helps prevent “the erosion of any semblance of
doctrinal consistency in the common law of nuisance.” Overcash v. S.C. Elec. & Gas Co.,
614 S.E.2d 619, 622 (S.C. 2005).
¶25 Although the Tribe does not allege it has a property or pecuniary interest
in the Peaks or that its open, unfettered access to those public lands has been impaired, it
urges us to expand special injury beyond the types of concrete interests involved in our
prior cases. To that end, the Tribe contends that Beatty, first raised and heavily relied on
by the court of appeals, “reveals that special injury may exist where a site with ‘emotional,
cultural, and religious significance’ is damaged.” See Hopi Tribe, 244 Ariz. at 263 ¶ 12.
But contrary to the court of appeals’ description of Beatty, that case did not involve “a
public nuisance suit.” Id. Rather, it was an action to quiet title in land used as a cemetery
and to enjoin the defendants from “dispossess[ing] the plaintiffs and . . . remov[ing] the
tomb stones and graves.” Beatty, 27 U.S. (2 Pet.) at 579–80. To be sure, the Beatty Court
described the defendants’ actions as a “public nuisance,” but it did so only in passing and
to preface its declaration that the land was “consecrated to [the plaintiffs’] use by a
perpetual servitude or easement,” id. at 584—a property interest not present here.
Therefore, unlike the court of appeals, we do not find Beatty “analogous” or “support[ive]
[of] the Tribe’s argument here.” Hopi Tribe, 244 Ariz. at 263 ¶ 12. Nor, apparently, does
the dissent.
¶26 Again departing from the court of appeals, we find Exxon Valdez
particularly persuasive in refuting the Tribe’s alleged special injury. See Hopi Tribe, 244
Ariz. at 264 ¶ 15 (finding the Exxon Valdez court’s reasoning “inapplicable”). The
“determinative issue” in that public nuisance case was “whether cultural damage,”
meaning “injury to [Alaska Natives’] culture or . . . subsistence way of life,” caused by
the Exxon Valdez oil spill was different in kind from “that suffered by other Alaskans.”
Exxon Valdez, 104 F.3d at 1197–98. Although the Ninth Circuit acknowledged that “the
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oil spill affected the communal life of Alaska Natives,” perhaps “more severely than other
members of the public,” the court nonetheless concluded the Natives’ injury was different
only in degree because “the right to obtain and share wild food, enjoy uncontaminated
nature, and cultivate traditional, cultural, spiritual, and psychological benefits in pristine
natural surroundings is shared by all Alaskans.” Id. at 1198 (internal quotation marks
omitted).
¶27 Here, the Tribe alleges harm to its “special interests in the environment,”
including its right to use and enjoy the Peaks in their “unimpaired,” “natural condition.”
But like the Alaska Natives in Exxon Valdez, the Tribe shares that right with the public.
Indeed, as the Tribe’s complaint acknowledges, Congress protected and preserved the
land in question “for the use and enjoyment of the American people in such manner as
will leave [it] unimpaired for future use and enjoyment as wilderness.” 16 U.S.C.
§ 1131(a); accord, e.g., High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 646 (9th Cir. 2004).
This at very least shows that the Peaks are a place of special importance to all Americans,
who are entitled to use and enjoy it in a condition “untrammeled by man.” 16 U.S.C.
§ 1131(c). And in light of that broad congressional mandate, we find unpersuasive the
court of appeals’ distinguishing Exxon Valdez based on “the Alaska Constitution
reserving the natural resources of the state to the people for common use.” Hopi Tribe,
244 Ariz. at 264 ¶ 15 (internal quotation marks omitted).
¶28 Although the Tribe does not specifically allege any property interest to
support its public nuisance claim, the dissent finds such an interest in federal law. Citing
25 U.S.C. § 3054, the dissent asserts that the Tribe has a “special, distinct, tangible status
recognized by federal law and is not shared by the general public.” Infra ¶ 47. But the
Tribe does not allege that the City–Snowbowl contract or the authorized use of reclaimed
wastewater on the Peaks has impaired the Tribe’s federal statutory rights of access or
privacy for traditional, cultural activities. Moreover, the very statute on which the dissent
relies provides that “[a]ccess by Indian tribes to National Forest System land under this
subsection shall be consistent with the purposes of Public Law 95-341 (commonly known
as the American Indian Religious Freedom Act [(“AIRFA”)]; 42 U.S.C. [§] 1996).” 25
U.S.C. § 3054(b)(3). In Lyng, the Supreme Court examined AIRFA and its legislative
history and found no “hint of any intent to create a cause of action or any judicially
enforceable individual rights.” 485 U.S. at 455. Lyng also noted that Representative
Morris Udall, who sponsored the bill that became AIRFA, “emphasized that [it] would
not ‘confer special religious rights on Indians,’ would ‘not change any existing State or
Federal law,’ and in fact ‘has no teeth in it.’” Id. (quoting 124 Cong. Rec. 21,444–45 (1978)).
¶29 Still, the Tribe and the dissent insist that Spur Industries, Arizona Copper, and
Restatement § 821C make clear that “[d]egree of [h]arm [c]annot [b]e [i]gnored” and
“frequent use of a resource” almost always indicates a “special interest” the public does
not share. But we have never held that a common injury may become “special” merely
because the party’s use of public property is frequent or the degree of harm alleged is
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substantial. In fact, the only discussion of degree in Spur Industries relates to “[t]he
difference between a private nuisance and a public nuisance,” not whether degree is
relevant to the special injury inquiry. 108 Ariz. at 183. As the Tribe points out, our pre-
statehood court said, “it is often a mere matter of degree . . . which is a ground for special
damage.” Ariz. Copper, 12 Ariz. at 201. That statement, however, merely referred to the
difference between “immediate” or “peculiar” harm and that which is “remote.” Id.
¶30 To be sure, Arizona Copper quoted other courts’ indistinct language
suggesting special injury could arise from “personal inconvenience or annoyance,” but
that case did not extend special injury beyond harm to the plaintiff’s property or person.
See id. at 201–02 (internal quotation marks omitted) (quoting Wesson v. Washburn Iron Co.,
95 Mass. 95, 103 (1866)). Indeed, we later expressly declined to do so in Sears. 192 Ariz.
at 70 ¶ 22; cf. Overcash, 614 S.E.2d at 622 (“[T]he special or particular injury
requirement . . . is satisfied only by injury to the individual’s real or personal property.”).
To hold otherwise would strike at the special injury requirement’s core.
¶31 The out-of-state cases the Tribe cites to support its special injury allegation
are inapposite. Unlike those cases, this case does not involve harm resulting from a
complete blockage of, or substantial interference with, access to a cemetery where a
plaintiff owns plots or has loved ones buried. See, e.g., Scruggs v. Beason, 20 So. 2d 774,
775 (Ala. 1945) (stating defendant completely blocked a public road that was “the only
means of entry to and from the graveyard” where plaintiffs’ relatives were buried,
depriving plaintiffs of the “right to visit, maintain and beautify the graves”); Connolly v.
Frobenius, 574 P.2d 971, 979 (Kan. Ct. App. 1978) (“[O]wners of lots in a dedicated
cemetery . . . [could] seek relief from any unauthorized use to be made of the cemetery.”);
German Evangelical St. Marcus Congregation of St. Louis v. Archambault, 404 S.W.2d 705, 706–
07 (Mo. 1966) (recognizing right of plaintiffs who had near relatives buried in graveyard
to prevent cemetery’s abandonment and “removal of remains of persons buried there”).
¶32 The Tribe and dissent’s reliance on Restatement § 821C, and particularly
that section’s comment c, is likewise misplaced. Infra ¶ 55. That comment observes that
a plaintiff who “traverses [a] road a dozen times a day . . . nearly always has some special
reason to do so, and that reason will almost invariably be based upon some special
interest of his own.” Restatement § 821C cmt. c. But comment c, which has no
illustrations and cites no supporting case law, simply concludes that “in determining
whether there is a difference in the kind of harm, the degree of interference may be a factor
of importance that must be considered.” Id. (emphasis added). The comment’s
unsupported, abstract generalizations are of little help, particularly when the Tribe
(beyond stating that its members go to the Peaks every month for prayers) does not
specifically allege how frequently it used the Peaks for religious or cultural purposes.
¶33 In addition, the Restatement makes clear that “[i]t is not enough that [the
plaintiff] has suffered the same kind of harm or interference but to a greater extent or
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HOPI TRIBE V. ARIZONA SNOWBOWL RESORT
Opinion of the Court
degree.” Id. cmt. b. That statement, with which we agree, undermines the Tribe’s claim
of special injury because, as the Tribe’s complaint acknowledges, many people “rely on
the purity and sanctity of the Peaks,” including “several Indian tribes.” And, as the Tribe
also alleges, “many others . . . repeatedly and consistently voiced [their] opposition to
both the sale of reclaimed wastewater and any additional development on the San
Francisco Peaks.” The Tribe’s alleged injury is therefore different only in degree, which
does not make it “different in kind or quality from that suffered by the public in
common.” Armory Park, 148 Ariz. at 5. Indeed, the Tribe’s graphic descriptions of
reclaimed wastewater and its effects, as detailed in the complaint and repeatedly
emphasized by the dissent, strongly suggest that anyone and everyone who visits the
Peaks, not just the Tribe, will suffer substantial environmental harm.
¶34 As explained above, “special injury” in this context is a term of art
describing “harm of a kind different from that suffered by other members of
the public exercising the right common to the general public that was the
subject of interference.” Restatement § 821C(1); see Armory Park, 148 Ariz. at 5.
This is different from the colloquial meaning of “special,” which often describes
something “exceptionally good or precious.” Special, OxfordDictionaries.com,
https://en.oxforddictionaries.com/definition/us/special (last visited Nov. 26, 2018).
Thus, declining to recognize alleged harm as “special” does not mean the underlying
interest is insignificant or unimportant. Contrary to the dissent’s insinuation, we
emphasize that our legal conclusion neither disregards nor minimizes the authenticity or
meaningfulness of the Tribe’s culture, ceremonial practices, or religious beliefs. Cf. Lyng,
485 U.S. at 453 (“Nothing in our opinion should be read to encourage . . . insensitivity to
the religious needs of any citizen.”).
C.
¶35 The Tribe argues that the special injury requirement applies with less force
when, as here, the plaintiff seeks to enjoin the alleged public nuisance. We disagree.
¶36 In analyzing public nuisance claims, no Arizona case has distinguished for
analytical purposes actions seeking damages from those seeking only injunctive relief. In
fact, in Armory Park the plaintiff sought, and the trial court granted, only injunctive relief.
148 Ariz. at 2–3, 10. In affirming the trial court’s preliminary injunction, this Court did
not apply a lower or different standard for establishing special injury and recognized the
two-fold rationale for that requirement in all public nuisance actions. Id. at 4–5. But even
assuming that the special injury criteria differ for equitable remedies, those criteria are
inapposite here—the complaint states that the Tribe is seeking an injunction “or in the
alternative, damages.”
12
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT
Opinion of the Court
III.
¶37 For the reasons stated above, we affirm the trial court’s judgment in favor
of Snowbowl and the City on the Tribe’s public nuisance claim, vacate the court of
appeals’ opinion, and remand the case to the court of appeals to determine whether the
trial court’s fee award is supportable and appropriate under A.R.S. § 12-341.01(A). In our
discretion, assuming that statute applies, we decline the City and Snowbowl’s requests
for fees incurred in this Court.
13
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT
CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, Dissenting
CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, dissenting.
¶38 The issue is whether the Hopi have alleged facts that, if proved at trial,
would entitle them to relief for a claim of public nuisance based on Snowbowl’s use of
reclaimed wastewater on the San Francisco Peaks. To state a claim, the Hopi need only
allege that (1) the use of the wastewater is a public nuisance, that is, an “unreasonable
interference with a right common to the general public,” Armory Park Neighborhood Ass’n
v. Episcopal Cmty. Servs., 148 Ariz. 1, 4 (1985), and (2) the Hopi suffer a “special injury”
from the nuisance, “different in kind” from that experienced by the general public. Id.
That the complaint alleges a public nuisance is not disputed.
¶39 Today’s majority holds that the Hopi have failed sufficiently to allege a
special injury, thus denying them outright an opportunity to prove their claims in court.
In so doing, the majority understates the nature of the alleged public nuisance, largely
ignores the distinctive harms alleged by the Hopi, and adopts a new rule unduly limiting
public nuisance claims. I respectfully dissent.
I.
¶40 Neither the majority nor the appellees contest that the Hopi have
sufficiently alleged that the use of reclaimed wastewater on the San Francisco Peaks
constitutes a public nuisance. Although the majority gives little attention to this point,
understanding the purported harm inflicted on the public is essential to understanding
the particularized harms alleged by the Hopi. In reviewing a ruling on a motion to
dismiss, we assume the truth of all well-pleaded facts in the complaint. Zubia v. Shapiro,
243 Ariz. 412, 414 ¶ 13 (2018).
¶41 As to the public nuisance, the material factual allegations can be
summarized as follows. Due to an ongoing expansion effort, Snowbowl wants to create
artificial snow to accommodate an uptick in skiers. To produce this artificial snow,
Snowbowl seeks to use reclaimed wastewater. The term is self-explanatory: water that
has been through the municipal sewer system is put to a second use. Water coming from
the sewer system carries what one would normally expect in a sewer, as well as myriad
components including pharmaceuticals, legal and illicit drugs, veterinary drugs,
hormones, and insecticides.
¶42 When the wastewater reaches the water treatment center, it is subjected to
only limited treatment. Some contaminants are removed, but not all, and the process is
not designed to remove all contaminants. The water is then discharged from the plant
and put to its destined use - here, the creation of snow. The reclaimed wastewater is non-
potable (that is, the water is unfit for consumption).
¶43 The reclaimed wastewater is treated at the Rio de Flag Treatment Plant.
Studies of reclaimed water from this plant found chemicals that interfere with the basic
14
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT
CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, Dissenting
biology of wildlife. The wastewater also has elevated nitrogen levels, which contributes
to the growth of invasive plant life, possibly choking out native flora, impairing soil
fauna, and otherwise affecting the ecosystem.
¶44 Snowbowl will use this water to create snow for skiers. Winds will blow
this snow over swaths of land and, come the spring melt, the various compounds in the
wastewater will percolate into the soil of the San Francisco Peaks. This allegedly
endangers several species already facing extinction and mars an ecosystem unique in
Arizona.
II.
¶45 That is the harm allegedly suffered by the general public - the baseline
against which the Hopi’s harm is measured. The majority finds that the Hopi have failed
to articulate any harm beyond that suffered by the general public - the harm suffered by
the Hopi is qualitatively no different than that experienced by a weekend hiker or
concerned environmentalist. The majority fails to appreciate that the wastewater will
affect the Hopi’s use and enjoyment of ancestral lands that have played a central role in
Hopi culture and religion since before the Coconino National Forest was of concern to
the broader public.
¶46 The Hopi refer to the San Francisco Peaks as Nuvatukya’ovi and hold them
out as the single most sacred place in Hopi culture. They are so central to Hopi religious
beliefs that they mark a cardinal direction in the Hopi universe. Each month, members
of the Tribe go to the Peaks to pray, and during some months, members collect water,
herbs, and greens for ceremonial use. These pilgrimages play an essential role in Hopi
life.
¶47 The U.S. Forest Service has recognized the Peaks as a Traditional Cultural
Property and determined they are eligible for the National Register of Historic Places. In
making this determination, the Forest Service recognized that the Peaks contain shrines
and other ceremonial locations, provide plant and animal resources necessary for
ceremonial use, and contain places related to the legends of the very origin of the
Hopi. Further, the Forest Service is required to provide access to National Forest System
lands to the Hopi for traditional and cultural purposes, 25 U.S.C. § 3054(a), and upon
request from the Hopi, the Secretary of Agriculture may close to public access specifically
identified Forest Service land to “protect the privacy of tribal activities for traditional and
cultural purposes.” 25 U.S.C. § 3054(b)(1). This is a special, distinct, tangible status
recognized by federal law and is not shared by the general public. This point is not
answered by observing, supra ¶ 25, that the Hopi are not denied access to the Peaks. Their
rights of access recognize but do not define the Hopi’s particular interests, rooted in Hopi
tradition and culture. Additionally, whether Congress has recognized a private cause of
action or judicially enforceable rights in the American Indian Religious Freedom Act,
15
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT
CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, Dissenting
supra ¶ 28, is not relevant, as those issues are distinct from whether the Hopi have alleged
a special injury for the purposes of a state public nuisance claim.
¶48 Before Snowbowl came into existence, the Hopi frequently traveled to and
through the area. Now, what the Hopi consider a spiritual birthplace is at the base of ski
slopes. Snowbowl seeks to introduce snow created from reclaimed wastewater into this
environment. Moreover, prevailing winds will blow the snow well beyond the
boundaries of Snowbowl, covering sacred land, shrines, springs, and other natural
resources with the reclaimed wastewater, including its traces of drugs, nitrogen, and
other components. This allegedly will destroy the purity of objects used by the Hopi for
their traditional ceremonial practices. In the spring melt, sacred springs will be tainted
with the melting wastewater, turning formerly pure ceremonial locations into a
secondary sewer. Moreover, the myriad chemicals in the water will wreak unknown
damage on the local ecosystem, further degrading traditional and sacred Hopi resources
and locations.
¶49 In sum, the Hopi face the destruction and desecration of some of their most
sacred locations and practices. This is the harm that the majority claims is no different
than that suffered by the public at large. See supra ¶ 27. But the general public does not
have millennia of religious practice in the area that will be covered in a fine film of
reclaimed sewage. Nor does the general public have rights of access and use - rooted in
Hopi tradition and cultural practices - recognized by federal statutes. The interference
with the Hopi’s access to and use of the San Francisco Peaks, as well as surrounding lands
affected by windblown or melting snow, is an injury different in kind from that suffered
by the public generally.
III.
¶50 In disregarding the Hopi’s claims, the majority creates a new rule, without
precedent in our jurisprudence. Although this will ease the judiciary’s line-drawing
problem in future cases, it undermines the purpose of the public nuisance claim.
¶51 At common law, private parties were prohibited from bringing claims for
public nuisance. Armory Park, 148 Ariz. at 5. Modern law, and our own case law, are
more forgiving, allowing private parties to bring a public nuisance claim so long as they
show a special injury - damage “different in kind or quality from that suffered by the
public in common.” Id. Until today, the requisite special injury could come in various
forms. The majority, however, declares that, apart from personal injuries, only injuries
to property or pecuniary interests will suffice. See supra ¶ 23.
¶52 We have long recognized that special injury, required in cases seeking
either damages or injunctive relief, can take various forms. See, e.g., Sears v. Hull, 192
Ariz. 65, 70 ¶ 19 (1998); Armory Park, 148 Ariz. at 5; Spur Indus., Inc. v. Del E. Webb Dev.
Co., 108 Ariz. 178, 184 (1972); City of Phoenix v. Johnson, 51 Ariz. 115, 123–24 (1938); Ariz.
16
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT
CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, Dissenting
Copper Co. v. Gillespie, 12 Ariz. 190, 201 (1909). These cases do not require that the interest
at stake be a property or pecuniary interest.
¶53 To make its nascent view of the special harm inquiry appear more
established, the majority points to our decision in Sears as an example applying a
property-based approach. Supra ¶ 15. But such a rule was neither mentioned nor created
in Sears, and our disposition of the nuisance claim in that case dealt with a combination
of geographical remoteness (which the Hopi do not have here) and the lack of a harm
beyond that suffered by the general public. Sears, 192 Ariz. at 69–70 ¶¶ 17–22.
¶54 Moreover, while hornbook law identifies three categories of special harm
(personal injury, substantial interference with the plaintiff’s use and enjoyment of their
own land, and pecuniary loss), this classification system is meant to facilitate discussion
and is not exhaustive. See Prosser & Keeton § 90, at 643, 648–50. This Court long ago
recognized that “no general rule can be laid down.” Ariz. Copper, 12 Ariz. at 201. All that
is required, and easily met by the Hopi here, is distinct and tangible harm. Slamming the
courthouse door shut on those whose claims do not involve their own land or money, or
personal injury, is not supported by our caselaw and unduly limits the public nuisance
doctrine.
¶55 Nor is the majority’s new rule supported by the Restatement. Although the
Restatement remarks on the difficulty of line drawing in the public nuisance context,
Restatement § 821C cmt. b., it does not include the limitation on actions the majority
announces today. The majority also misapprehends the significance of comment c to
Restatement § 821C, which observes that a plaintiff “who traverses a road a dozen times
a day…nearly always has some special reason to do so, and that reason will almost
invariably be based on some special interest of [their] own.” Id. cmt. c. The majority
dismisses the Hopi’s interest as based only on the frequency of use, since both the public
and other Indian tribes also rely on the “sanctity and purity of the Peaks.” Supra
¶ 33. What the Hopi actually argue, however, is that their frequent use is indicative of
their special interest - which comports with comment c. That is, that the Hopi so often
visit and traverse the San Francisco Peaks is evidence of how strong their connection to
the area is, and how deeply they are injured by Snowbowl’s use of reclaimed water. That
others may also have interests that are harmed by the use of the wastewater does not
imply that the Hopi’s interest is no different in kind from that suffered by the general
public. See Ariz. Copper, 12 Ariz. at 205–06 (recognizing that farmer using irrigated water
could sue under public nuisance doctrine for defendant’s depositing mining sediment
that damaged alfalfa farming generally in Upper Gila Valley).
IV.
¶56 Based on the allegations of the complaint, Snowbowl’s use of reclaimed
wastewater to create artificial snow will allow it to increase the number of skiers it can
17
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT
CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, Dissenting
accommodate while imposing a nuisance on the public by polluting the land and waters
of the San Francisco Peaks. The Hopi allegedly will face compounded harm, as their
sacred sites, springs, and rituals will be tainted by sewer snow, destroying their religious
and cultural use and forcing the Hopi to relocate their practices beyond their traditional
homes yet again. The majority observes that the Hopi have challenged Snowbowl’s
actions in multiple litigation over many years, but that fact does not suggest that their
claims here fail, as a matter of law, to state a claim for relief. The Hopi may not be able
to prove that the use of the wastewater constitutes a nuisance or that they have suffered
the particular injuries alleged; prior litigation may also have some issue preclusive effect
here. Thus, holding that the Hopi have stated a claim does not mean they will prevail; if
they are to lose, however, it should be on the merits and not by implausibly asserting that
they have alleged an injury no different than that suffered by the general public.
¶57 Ironically, if the Forest Service allowed the Hopi to sell pine boughs, pinon
nuts, or native tobacco collected from the Peaks (it does not), the majority’s holding
would allow the Hopi to bring a public nuisance claim based on injury to their pecuniary
interests. We may live in a material world, but it is a sad comment on our law to suggest
that other interests - such as religious traditions and practices manifest through millennia
and recognized by federal law - cannot support a claim of special injury for purposes of
the public nuisance doctrine. I respectfully dissent.
18