Ariz. SC: Using wastewater for fake snow at Snowbowl is not a 'public nuisance'

By Chandra Lye | Dec 13, 2018

PHOENIX (Legal Newsline) – Despite the dissent of two Justices, the Supreme Court of Arizona has upheld a lower court decision over a public nuisance claim filed by the Hopi Tribe against a resort’s use of wastewater for snow making.

“We affirm the trial court’s judgment in favor of (Arizona Snowbowl Resort Limited Partnership) and the city (of Flagstaff) 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,” the Nov. 29 court decision stated.

According to the court opinion, this case was another in the long dispute over using reclaimed wastewater to make snow for the Snowbowl Resort. A debate, the court notes, that has been ongoing for more than 16 years. 

“Over 16 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 (San Francisco) 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 snow making under several federal laws, including the Religious Freedom Restoration Act,” Justice John Pelander wrote.

The Hopi Tribe filed this action in 2011 against the city, alleging the sale of reclaimed wastewater to create fake snow was a public nuisance that would harm the environment and the Tribe, according to the opinion.

“We granted review because whether an alleged special injury sufficiently supports a claim for public nuisance is an issue of statewide importance,” Pelander wrote. 

“Snowbowl contends that the alleged injury here is to the Tribe’s 'desire to enjoy ‘pristine natural surroundings,'" the opinion stated.

Snowbowl said the injury isn't transformed in to "special harm" just because the Tribe's members want to access the Peaks for religious reasons when others' motivations are environmental or recreational.

However, Chief Justice Scott Bales and Justice Clint Bolick dissented. In their opinion, Bales said the quality of the wastewater was in question.

“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 biology of wildlife,” Bales wrote.

“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,” Bales wrote.

“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,” he wrote.

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