418 P.3d 1032
Ariz. Ct. App.2018Background
- The Hopi Tribe sued the City of Flagstaff and Arizona Snowbowl over the sale/use of reclaimed wastewater to make artificial snow on the San Francisco Peaks, alleging public nuisance among other claims.
- The Tribe alleges reclaimed wastewater contains numerous contaminants and that wind and runoff will spread artificial snow beyond ski runs, contaminating springs, sacred areas, and ceremonial objects.
- Procedural history: tribes previously litigated Forest Service approvals in multiple federal suits (Navajo Nation cases); this state suit was filed in 2010; Snowbowl later purchased reclaimed water and began snowmaking.
- The trial court dismissed the Tribe’s complaint for failure to allege the “special injury” element of a private public-nuisance claim and denied leave to amend; it also awarded attorneys’ fees to Snowbowl and the City.
- On appeal, the Arizona Court of Appeals assumed the public-rights interference element was adequately alleged and addressed whether the Tribe pleaded a special injury different in kind from the public’s harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tribe pleaded a “special injury” to bring a private public-nuisance claim | Tribe: contamination of culturally and religiously significant sites and tainting of ceremonial objects causes injury different in kind from the public’s recreational harms | Defendants: alleged harms are the same in kind as public recreational injuries (recreation/public use); cases like Oppen/Exxon show no special injury | Held: Reversed dismissal — Tribe sufficiently alleged special injury based on interference with places of special cultural/religious significance |
| Whether trial court properly denied leave to amend as futile | Tribe: proposed amendments would cure defects and add claims against Snowbowl | Defendants: amendment would be futile because Tribe cannot allege special injury | Held: Vacated denial of leave to amend (because special-injury requirement met at pleading stage) |
| Whether prevailing-party attorneys’ fees to City and Snowbowl were proper | Tribe: fee award improper because claims are not contract-based; also reversal defeats prevailing-party status | Defendants: sought fees after dismissal under A.R.S. § 12-341.01(A) | Held: Fee award vacated because dismissal reversed and defendants are no longer prevailing parties |
| Whether earlier federal/Navajo litigation precluded the Tribe’s state public-nuisance claim | Tribe: Navajo cases do not preclude this state-law nuisance claim | City: argued claim/issue preclusion barred the suit | Held: Earlier appellate panel already held preclusion did not bar the nuisance claim; this opinion does not reinstate preclusion and proceeds on the merits of special-injury issue |
Key Cases Cited
- Armory Park Neighborhood Ass’n v. Episcopal Cmty. Servs. in Ariz., 148 Ariz. 1 (1985) (defines private plaintiff’s public-nuisance standing and “special injury” requirement)
- Beatty v. Kurtz, 27 U.S. 566 (1829) (allowing suit to enjoin desecration of a cemetery; emotional/cultural injury can support equitable relief)
- Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983) (prior tribal challenge to Snowbowl upgrades concerning religious use of the Peaks)
- Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) (en banc) (federal litigation over Forest Service approval and reclaimed-water use on the Peaks)
- Oppen v. Aetna Ins. Co., 485 F.2d 252 (9th Cir. 1973) (public nuisance claim by boat owners after oil spill held insufficient where injury was no more than occasional recreational loss)
- In re Exxon Valdez, 104 F.3d 1196 (9th Cir. 1997) (addresses alleged subsistence/economic harms of Alaska Natives after oil spill; court treated harm as shared and subject to prior settlement)