from the Superior Court in Coconino County No.
S0300CV201100701 The Honorable Mark R. Moran, Judge
Hunsucker Goodstein, PC, Washington DC By Michael D.
Goodstein, Anne E. Lynch Co-Counsel for Plaintiff/Appellant.
Campbell Yost Clare & Norell, PC, Phoenix By Martin P.
Clare Co-Counsel for Plaintiff/Appellant.
Tribe Office of General Counsel, Kykotsmovi By Karen
Pennington, Theresa Thin Elk Co-Counsel for
Jennings Strouss & Salmon, PLC, Phoenix By John J.
Egbert, Paul G. Johnson, Scott F. Frerichs Counsel for
Defendant/Appellee Arizona Snowbowl Limited Partnership.
Cook Drury Mesaros, PA, Phoenix By John A. Klecan Co-Counsel
for Defendant/Appellee City of Flagstaff.
Wieneke Law Group, P.L.C., Tempe By Kathleen L. Wieneke
Co-Counsel for Defendant/Appellee City of Flagstaff.
Presiding Judge Kenton D. Jones delivered the Opinion of the
Court, in which Judge Jon W. Thompson and Judge Jennifer M.
This case arises from the sale and use of reclaimed
wastewater to make artificial snow for ski runs on the San
Francisco Peaks (the Peaks) in northern Arizona. The Hopi
Tribe (the Tribe), which opposes the use of reclaimed
wastewater on the Peaks, appeals the dismissal of its
complaint for lack of standing and the award of
attorneys' fees to the City of Flagstaff (the City) and
Arizona Snowbowl Resort Limited Partnership (Snowbowl).
At issue is whether the Tribe sufficiently alleged standing
to maintain a common law public nuisance claim. For a private
party to bring a claim of public nuisance, it must allege
both an interference with a right common to the public and a
special injury different in kind from that of the public. The
parties do not dispute that the Tribe sufficiently alleged
that the use of reclaimed wastewater interferes with the
public's right to use and enjoy the Peaks. Because we
find the Tribe sufficiently alleged the use of reclaimed
wastewater causes its members a special injury, different in
kind than that suffered by the general public, by interfering
with places of special cultural and religious significance to
the Tribe, we reverse the trial court's dismissal, vacate
the orders denying the Tribe's motion to amend the
complaint and awarding Snowbowl and the City attorneys'
fees, and remand for further consideration.
FACTS AND PROCEDURAL HISTORY
The Tribe has contested Snowbowl's presence on the Peaks
for decades, long before Snowbowl considered using reclaimed
wastewater to make artificial snow, and this case is
the latest iteration of that dispute. In 1981, several
plaintiffs, including the Hopi Tribe, challenged the U.S.
Forest Service's approval of upgrades to Snowbowl,
arguing, among other things, that the approval violated the
Free Exercise Clause of the First Amendment. See Wilson
v. Block, 708 F.2d 735, 739 (D.C. Cir. 1983). The
plaintiffs argued the approved upgrades would "seriously
impair their ability to pray and conduct ceremonies upon the
Peaks, and to gather from the Peaks the sacred objects . . .
necessary to their religious practices." Id. at
740. Although noting the proposed upgrades to Snowbowl were
"inconsistent with the plaintiffs' beliefs, and will
cause the plaintiffs spiritual disquiet, " the D.C.
Circuit found the upgrades would not impose a substantial
burden on the exercise of any religious practices and denied
relief. Id. at 742-45.
Thereafter, in 2002, the City contracted to sell reclaimed
wastewater to Snowbowl for the purpose of making artificial
snow. In 2005, the Forest Service approved the use of
reclaimed wastewater for snowmaking on the ski runs at
Snowbowl. Navajo Nation III, 535 F.3d at 1066
(citing Navajo Nation I, 408 F.Supp.2d at 886).
Several tribes, including the Hopi Tribe, challenged the
approval under various federal statutes including the
National Environmental Policy Act (NEPA), the National
Historic Preservation Act, the Endangered Species Act, the
Grand Canyon National Park Enlargement Act, the National
Forest Management Act, and the Religious Freedom Restoration
Act (RFRA). Id. (citing Navajo Nation I,
408 F.Supp.2d at 871). The district court ultimately resolved
all claims in favor of the Forest Service. Navajo Nation
I, 408 F.Supp.2d at 908. The tribes then appealed to the
Ninth Circuit Court of Appeals, which initially reversed the
decision on the tribes' RFRA claim and one alleged NEPA
violation and affirmed judgment in favor of the Forest
Service on the other claims. Navajo Nation v. U.S. Forest
Serv. (Navajo Nation II), 479 F.3d 1024, 1060-61 (9th
Cir. 2007). But, in an 8-3 decision en banc, the
Ninth Circuit affirmed the district court's decision in
all respects. Navajo Nation III, 535 F.3d at 1063.
In 2010, as the City prepared to move forward with the sale
of reclaimed wastewater to Snowbowl, the Tribe filed its
complaint in the present case, alleging, among other claims,
public nuisance. As relevant here, the complaint alleged the
use of reclaimed wastewater to make artificial snow harmed
the environment, and thus the public's use and enjoyment
of the Peaks, because the water "contains recalcitrant
chemical components . . . including pharmaceuticals, personal
care products, legal and illicit drugs, veterinary drugs,
hormones, caffeine, cosmetics, food supplements, sunscreen
agents, solvents, insecticides, plasticizers, detergent
compounds and other chemicals." The Tribe asserted
Snowbowl would not be able to contain the reclaimed
wastewater to the ski area because the runoff would enter ...