from the Superior Court in Coconino County The Honorable Mark
R. Moran, Judge No. CV2011-00701.
of the Court of Appeals, Division One 244 Ariz. 259 (App.
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.
G. Johnson, Scott F. Frerichs, John J. Egbert (argued),
Jennings, Strouss & Salmon, P.L.C., Phoenix, Attorneys
for Arizona Snowbowl Resort Limited Partnership.
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.
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,
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.
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
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.
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 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 impacting]"
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.
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. §
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.
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. §
"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
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.
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.
"[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 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").
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.
Although there is" [c]onsiderable disagreement . . .
over the type of injury" that is "sufficient to
distinguish [a] plaintiffs 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,