Hopi Tribe v. Arizona Snowbowl Resort Ltd. P’ship – 2/9/2018

February 12, 2018

Arizona Court of Appeals Division One holds that allegations of interference with sites of cultural and religious significance are sufficient allegations of “special injury” to establish a tribe’s standing to bring a public nuisance claim.

A city contracted to sell reclaimed wastewater to a ski resort for the purpose of making artificial snow.  After a federal agency approved the resort’s use of the artificial snow, a tribe unsuccessfully pursued federal litigation to reverse the approval.  The tribe then filed suit in superior court, alleging that the use of wastewater was a public nuisance.  The superior court dismissed on grounds of issue and claim preclusion from the federal litigation, and the Court of Appeals reversed without reaching the merits.  On remand, the city and resort argued that the tribe failed to allege a special injury, different in kind from the injury suffered by the general public, and thus lacked standing.  The superior court agreed, and again dismissed.  The tribe appealed.

The Court of Appeals reversed.  In order to have standing to pursue a public nuisance claim, a plaintiff must show both an unreasonable interference with a right common to the public and a special injury different in kind, not merely degree, from that of the public.  All parties agreed that the tribe had sufficiently alleged harm to the general public, leaving only the tribe’s special injury at issue.  The Court of Appeals relied on Beatty v. Kurtz, 27 U.S. 566 (1829) to determine that members of a religious group could show this special injury in a public nuisance suit when the nuisance would desecrate sites the members, but not the general public, considered holy.  The Court of Appeals determined the tribe met its burden by alleging that the artificial snow would necessarily be removed from the ski resort and contaminate tribal holy sites and ceremonial objects.

Judge Jones delivered the unanimous opinion of the court; Judge Thompson and Judge Perkins joined.