Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tribe v. Arizona Snowbowl Resort Limited Partnership

Court of Appeals of Arizona, First Division

February 8, 2018

HOPI TRIBE, Plaintiff/Appellant,
v.
ARIZONA SNOWBOWL RESORT LIMITED PARTNERSHIP, et al., Defendants/Appellees.

         Appeal 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.

          Hopi Tribe Office of General Counsel, Kykotsmovi By Karen Pennington, Theresa Thin Elk Co-Counsel for Plaintiff/Appellant.

          Jennings Strouss & Salmon, PLC, Phoenix By John J. Egbert, Paul G. Johnson, Scott F. Frerichs Counsel for Defendant/Appellee Arizona Snowbowl Limited Partnership.

          Renaud 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. Perkins joined.

          OPINION

          JONES, JUDGE.

         ¶1 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).

         ¶2 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

         ¶3 The Tribe has contested Snowbowl's presence on the Peaks for decades, long before Snowbowl considered using reclaimed wastewater[1] 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.

         ¶4 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.

         ¶5 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.