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Hopi Tribe Loses in State Supreme Court

Hopi Tribe Loses in State Supreme Court
November 30
08:36 2018

The Hopi Tribe’s lawsuit to stop the Arizona Snowbowl from using reclaimed water on the slopes of San Francisco Peaks went downhill once it reached the state’s Supreme Court. The high court has been considering whether a lower court created a new category of special harm for public nuisance claims. By a 5-2 vote the court all but ended the Hopis fight against the Snowbowl. The Hopi Tribe sued the city of Flagstaff, arguing the city’s sale of wastewater to the Arizona Snowbowl causes a public nuisance.

The state appeals court earlier this year said the tribe distinguished its cultural and religious interest from other recreationists in the area. The appeals court sent the case back to Coconino County Superior Court for a decision on the merits. But no action was taken because the city and the Snowbowl appealed to the Supreme Court. The Hopi Tribe’s lawsuit was originally about the machine-made snow. Its complaint alleged that Snowbowl’s use of treated wastewater to make the snow damaged the San Francisco Peaks, which the tribe considers sacred.

But eight years later, the Arizona Supreme Court ended up weighing a nuanced legal argument: Whether an appeals court created a new category of “special harm” in public nuisance claims. In Arizona, a private party can make a public nuisance claim only if it has suffered damage different from that of general public.

Earlier this year, the Arizona Court of Appeals ruled that the Hopi Tribe could claim that Snowbowl’s use of treated wastewater to make its own snow did cause “a special injury” to the tribe’s cultural and religious traditions. The Supreme Court decided that the tribe’s public nuisance claim was invalid because under its argument anyone visiting the Snowball would suffer the same environmental damage. “As we have said before, while the use of treated wastewater to make snow may provide some commercial benefit to the ski resort, the long-term impact is immeasurable on the natural resources, shrines, and springs on the San Francisco Peaks,” Hopi Chairman Tim Nuvangyaoma said. Many Arizona tribes – including the Hopi and Navajo Nation – consider the San Francisco Peaks as sacred. Tribes have been challenging the Snowbowl since it was founded in 1981.

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