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Tribe v. Arizona Snowbowl Resort Limited Partnership

Supreme Court of Arizona

November 29, 2018

Hopi Tribe, Plaintiff/Appellant,
Arizona Snowbowl Resort Limited Partnership, et al., Defendants/Appellees.

          Appeal from the Superior Court in Coconino County The Honorable Mark R. Moran, Judge No. CV2011-00701.

         Opinion of the Court of Appeals, Division One 244 Ariz. 259 (App. 2018)

          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.

          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.



         ¶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.


         ¶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 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.

         ¶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.


         ¶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 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.


         ¶13 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, ...

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