In
Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, (AZ Sup. Ct., Nov. 29, 2018), the Arizona Supreme Court in a 5-2 decision, rejected the Hopi Tribe's attempt to invoke public nuisance law to challenge the sale of wastewater to make artificial snow at a ski resort on federal land. The land has been traditionally used by the Hopi for religious and ceremonial purposes. Under Arizona law, a private party can challenge a public nuisance only if the party can show special injury different from that suffered by the public at large. In the latest chapter of the Hopi's long-running attempt to challenge the Snowbowl expansion, the majority held that environmental damage to public land with religious, cultural, or emotional significance to the tribe is not enough to create "special injury." The majority said in part:
because a particular place’s religious importance is inherently subjective, ... courts are ill-equipped to determine whether “one form of incidental interference with an individual’s spiritual activities” should be analyzed differently from that of another....
At its core, the special injury requirement serves a gatekeeping function that prevents courts from deciding issues under the guise of public nuisance claims when such issues are best left to public officials, a pivotal principle in federal cases grappling with religious freedom challenges to public land uses.
Chief Justice Bales, joined by Justice Bolick, dissented, saying in part:
[T]he Hopi face the destruction and desecration of some of their most sacred locations and practices. This is the harm that the majority claims is no different than that suffered by the public at large.... But the general public does not have millennia of religious practice in the area that will be covered in a fine film of reclaimed sewage. Nor does the general public have rights of access and use - rooted in Hopi tradition and cultural practices - recognized by federal statutes.
Arizona Republic reports on the decision.
