430 P.3d 362
Ariz.2018Background
- The City of Flagstaff contracted to sell reclaimed (treated wastewater) to Arizona Snowbowl for snowmaking on the San Francisco Peaks, federal land used and held sacred by the Hopi Tribe and others.
- The U.S. Forest Service and federal courts (including the Ninth Circuit en banc) reviewed and approved the snowmaking project; federal challenges including RFRA claims were unsuccessful.
- In 2011 the Hopi Tribe sued the City in Arizona state court alleging, among other claims, a common-law public nuisance: that reclaimed-water snow would unreasonably harm the environment and the Tribe’s cultural and religious uses of the Peaks.
- The City and Snowbowl moved to dismiss the public-nuisance claim for failure to allege the required “special injury” (harm different in kind, not merely degree, from the public’s). The trial court granted dismissal and awarded fees; the court of appeals reversed.
- The Arizona Supreme Court granted review to decide whether the Tribe’s claimed environmental, cultural, and religious injuries to public land constitute the requisite special injury for a private public-nuisance action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether alleged environmental and religious/cultural harm to public land qualifies as the “special injury” element of a private public-nuisance claim | Hopi: interference with sacred public places and contamination from reclaimed-water snow causes injury qualitatively different from the public’s and thus is "special" | Snowbowl/City: Hopi’s harms are shared rights to pristine public land and differ only in degree; not the property/pecuniary or personal interests historically recognized as "special" | The court held such environmental, cultural, or religious harms to public land are not "special injury" as a matter of law because they are subjective, shared by the public, and best addressed by public officials; dismissal affirmed |
| Whether Beatty or other precedent supports recognizing a "place-of-special-importance" category of special injury | Hopi: Beatty and other authorities show emotional/cultural significance to a place can produce special injury | Defendants: Beatty involved property/easement rights and does not establish a new category; precedent centers on property/pecuniary harms | The court rejected extending special-injury beyond property/pecuniary/personal interests and found Beatty inapplicable |
| Whether degree/frequency of use converts a shared public interest into a special injury | Hopi: frequent, longstanding cultural use shows a special interest distinguishing harm in kind | Defendants: Degree/frequency alone does not convert a common right into a legally different harm | The court held degree/frequency alone is insufficient; same-kind harms to rights common to the public do not meet the special-injury element |
| Whether special-injury requirement is relaxed for injunctive (equitable) relief | Hopi: special-injury should be easier to show for injunctions protecting sacred sites | Defendants: No separate, relaxed standard; Armory Park applied special-injury in equitable context too | The court held no diminished special-injury standard for injunctive claims and noted the Tribe sought damages alternatively |
Key Cases Cited
- Armory Park Neighborhood Ass’n v. Episcopal Cmty. Servs. , 148 Ariz. 1 (Ariz. 1985) (defines private plaintiff’s public-nuisance “special injury” element as harm different in kind, not degree)
- Navajo Nation v. U.S. Forest Serv. , 535 F.3d 1058 (9th Cir. 2008) (federal RFRA/administrative review rejecting plaintiffs’ claims about reclaimed-water snow)
- Lyng v. Northwest Indian Cemetery Protective Ass’n , 485 U.S. 439 (1988) (courts should not adjudicate competing religious claims that would give one group a de facto veto over public land use)
- In re Exxon Valdez , 104 F.3d 1196 (9th Cir. 1997) (cultural/subsistence harms from oil spill were held different in degree, not kind, from harms shared by the public)
- Sears v. Hull , 192 Ariz. 65 (Ariz. 1998) (reliance on Armory Park limits special-injury recognition where alleged harm parallels public harm)
- Spur Industries, Inc. v. Del E. Webb Dev. Co. , 108 Ariz. 178 (Ariz. 1972) (public-nuisance/pecuniary-interest discussion)
- Arizona Copper Co. v. Gillespie , 12 Ariz. 190 (Ariz. 1909) (early discussion of degree vs. kind in special-injury analysis)
- Beatty v. Kurtz , 27 U.S. (2 Pet.) 566 (U.S. 1829) (quiet-title/cemetery case referenced by court of appeals but treated here as involving property interests rather than establishing a public-nuisance special-injury category)