Hopi Tribe v. Az Snowbowl

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

HOPI TRIBE, Plaintiff/Appellant,

v.

ARIZONA SNOWBOWL RESORT LIMITED PARTNERSHIP, et al.,
Defendants/Appellees.

No. 1 CA-CV 16-0521
FILED 2-8-2018

Appeal from the Superior Court in Coconino County
No. S0300CV201100701
The Honorable Mark R. Moran, Judge

REVERSED IN PART; VACATED IN PART; AND REMANDED

COUNSEL

Hunsucker Goodstein, PC, Washington DC
By Michael D. Goodstein, Anne E. Lynch
Co-Counsel for Plaintiff/Appellant

Campbell Yost Clare & Norell, PC, Phoenix
By Martin P. Clare
Co-Counsel for Plaintiff/Appellant

Hopi Tribe Office of General Counsel, Kykotsmovi
By Karen Pennington, Theresa Thin Elk
Co-Counsel for Plaintiff/Appellant
Jennings Strouss & Salmon, PLC, Phoenix
By John J. Egbert, Paul G. Johnson, Scott F. Frerichs
Counsel for Defendant/Appellee Arizona Snowbowl Limited Partnership

Renaud Cook Drury Mesaros, PA, Phoenix
By John A. Klecan
Co-Counsel for Defendant/Appellee City of Flagstaff

Wieneke Law Group, P.L.C., Tempe
By Kathleen L. Wieneke
Co-Counsel for Defendant/Appellee City of Flagstaff

OPINION

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in
which Judge Jon W. Thompson and Judge Jennifer M. Perkins joined.

J O N E S, Judge:

¶1 This case arises from the sale and use of reclaimed wastewater
to make artificial snow for ski runs on the San Francisco Peaks (the Peaks)
in northern Arizona. The Hopi Tribe (the Tribe), which opposes the use of
reclaimed wastewater on the Peaks, appeals the dismissal of its complaint
for lack of standing and the award of attorneys’ fees to the City of Flagstaff
(the City) and Arizona Snowbowl Resort Limited Partnership (Snowbowl).

¶2 At issue is whether the Tribe sufficiently alleged standing to
maintain a common law public nuisance claim. For a private party to bring
a claim of public nuisance, it must allege both an interference with a right
common to the public and a special injury different in kind from that of the
public. The parties do not dispute that the Tribe sufficiently alleged that
the use of reclaimed wastewater interferes with the public’s right to use and
enjoy the Peaks. Because we find the Tribe sufficiently alleged the use of
reclaimed wastewater causes its members a special injury, different in kind
than that suffered by the general public, by interfering with places of special
cultural and religious significance to the Tribe, we reverse the trial court’s
dismissal, vacate the orders denying the Tribe’s motion to amend the
complaint and awarding Snowbowl and the City attorneys’ fees, and
remand for further consideration.

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FACTS AND PROCEDURAL HISTORY

¶3 The Tribe has contested Snowbowl’s presence on the Peaks
for decades, long before Snowbowl considered using reclaimed
wastewater1 to make artificial snow, and this case is the latest iteration of
that dispute. In 1981, several plaintiffs, including the Hopi Tribe,
challenged the U.S. Forest Service’s approval of upgrades to Snowbowl,
arguing, among other things, that the approval violated the Free Exercise
Clause of the First Amendment. See Wilson v. Block, 708 F.2d 735, 739 (D.C.
Cir. 1983). The plaintiffs argued the approved upgrades would “seriously
impair their ability to pray and conduct ceremonies upon the Peaks, and to
gather from the Peaks the sacred objects . . . necessary to their religious
practices.” Id. at 740. Although noting the proposed upgrades to
Snowbowl were “inconsistent with the plaintiffs’ beliefs, and will cause the
plaintiffs spiritual disquiet,” the D.C. Circuit found the upgrades would not
impose a substantial burden on the exercise of any religious practices and
denied relief. Id. at 742-45.

¶4 Thereafter, in 2002, the City contracted to sell reclaimed
wastewater to Snowbowl for the purpose of making artificial snow. In 2005,
the Forest Service approved the use of reclaimed wastewater for
snowmaking on the ski runs at Snowbowl. Navajo Nation III, 535 F.3d at
1066 (citing Navajo Nation I, 408 F. Supp. 2d at 886). Several tribes, including
the Hopi Tribe, challenged the approval under various federal statutes
including the National Environmental Policy Act (NEPA), the National
Historic Preservation Act, the Endangered Species Act, the Grand Canyon
National Park Enlargement Act, the National Forest Management Act, and

1 Reclaimed wastewater is treated sewage effluent, which undergoes
“specific advanced treatment requirements, including tertiary treatment
with disinfection,” and “compl[ies] with extensive treatment and
monitoring requirements under three separate permit programs.” Navajo
Nation v. U.S. Forest Serv. (Navajo Nation I), 408 F. Supp. 2d 866, 887 (D. Ariz.
2006). The reclaimed wastewater used for snowmaking at Snowbowl is
classified as “A+” by the Arizona Department of Environmental Quality,
and is therefore “the highest quality of recycled wastewater recognized by
Arizona law.” Navajo Nation v. U.S. Forest Serv. (Navajo Nation III), 535 F.3d
1058, 1065 (9th Cir. 2008) (en banc). The Arizona Administrative Code
(A.A.C.) allows reclaimed wastewater with a minimum classification of
“A” to be used for, among other purposes, irrigation of food crops,
schoolground landscape irrigation, fire protection systems, and, of specific
interest in the immediate action, making artificial snow. See A.A.C. R18-11-
309 tbl. A (2018).

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the Religious Freedom Restoration Act (RFRA). Id. (citing Navajo Nation I,
408 F. Supp. 2d at 871). The district court ultimately resolved all claims in
favor of the Forest Service. Navajo Nation I, 408 F. Supp. 2d at 908. The
tribes then appealed to the Ninth Circuit Court of Appeals, which initially
reversed the decision on the tribes’ RFRA claim and one alleged NEPA
violation and affirmed judgment in favor of the Forest Service on the other
claims. Navajo Nation v. U.S. Forest Serv. (Navajo Nation II), 479 F.3d 1024,
1060-61 (9th Cir. 2007). But, in an 8-3 decision en banc, the Ninth Circuit
affirmed the district court’s decision in all respects. Navajo Nation III, 535
F.3d at 1063.

¶5 In 2010, as the City prepared to move forward with the sale of
reclaimed wastewater to Snowbowl, the Tribe filed its complaint in the
present case, alleging, among other claims, public nuisance. As relevant
here, the complaint alleged the use of reclaimed wastewater to make
artificial snow harmed the environment, and thus the public’s use and
enjoyment of the Peaks, because the water “contains recalcitrant chemical
components . . . including pharmaceuticals, personal care products, legal
and illicit drugs, veterinary drugs, hormones, caffeine, cosmetics, food
supplements, sunscreen agents, solvents, insecticides, plasticizers,
detergent compounds and other chemicals.” The Tribe asserted Snowbowl
would not be able to contain the reclaimed wastewater to the ski area
because the runoff would enter the water supply and winds would carry
the artificial snow beyond the application area. Therefore, the Tribe alleged
the contamination of the Peaks would interfere with its cultural and
religious practices.

¶6 When the Tribe filed its complaint, Snowbowl had not yet
purchased reclaimed wastewater. The City successfully moved to dismiss
the complaint, arguing it was barred by claim and issue preclusion. On
appeal, another panel of this Court reversed the dismissal, finding the
Navajo Nation cases did not preclude the Tribe’s public nuisance claim, but
declined to consider the merits of the claim. See Hopi Tribe v. City of Flagstaff,
1 CA-CV 12-0370, 2013 WL 1789859, at *8, ¶¶ 34-35 (Ariz. App. Apr. 25,
2013) (mem. decision).

¶7 Since this Court last reviewed the case, significant procedural
developments have occurred. On remand, the City filed a third-party
indemnification claim against Snowbowl. Additionally, Snowbowl has
now purchased reclaimed wastewater from the City and has made artificial
snow on the Peaks. Finally, the Tribe unsuccessfully moved to amend its
complaint to add Snowbowl as a defendant and to add a claim for an

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injunction against Snowbowl’s artificial snowmaking, or, in the alternative,
damages resulting from that activity.

¶8 Snowbowl moved to dismiss the Tribe’s complaint, pursuant
to Arizona Rule of Civil Procedure 12(b)(6), arguing, inter alia, that the Tribe
failed to sufficiently allege the type of damages necessary to maintain a
public nuisance claim. The trial court granted the motion to dismiss and
awarded attorneys’ fees to Snowbowl and the City pursuant to Arizona
Revised Statutes (A.R.S.) § 12-341.01(A).2 The Tribe timely appealed, and
we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1),
(5)(b).3

DISCUSSION

I. Standard of Review

¶9 We review a dismissal for failure to state a claim de novo.
Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). Because Arizona
follows a notice pleading standard, in the course of our review, we “assume
the truth of all well-pleaded factual allegations and indulge all reasonable
inferences from those facts.” Id. at 356, ¶ 9 (quoting Cullen v. Auto-Owners
Ins., 218 Ariz. 417, 419, ¶¶ 6-7 (2008)). Dismissal is proper only if the claim
fails “under any interpretation of the facts susceptible of proof.” Id. at ¶ 8
(quoting Fid. Sec. Life Ins. v. State, Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4 (1998)).
It is not necessary for the plaintiff to prove its case within the complaint; a
plaintiff need only provide a “short and plain statement of the claim
showing that the pleader is entitled to relief” so as to put opposing parties
on notice of the specific nature of the claim against which they must defend.
Ariz. R. Civ. P. 8(a)(2); see also Cullen, 218 Ariz. at 419, ¶ 6 (citing Mackey v.
Spangler, 81 Ariz. 113, 115 (1956)).

II. Standing to Bring Public Nuisance Claim

¶10 The parties dispute whether the Tribe sufficiently alleged the
type of damages necessary to maintain a public nuisance claim. A private

2 Absent material changes from the relevant date, we cite a statute’s
current version.

3 During the course of this appeal, Snowbowl filed two supplemental
citations of legal authority. The Tribe filed a response on January 17, 2018.
A supplemental citation of legal authority is not an invitation for further
argument; nor do the Arizona Rules of Civil Appellate Procedure allow for
response. Accordingly, the Tribe’s response is stricken. See ARCAP 17, 25.

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party pursuing a public nuisance claim must allege: (1) an unreasonable
interference with a right common to the public, and (2) a “special injury”
different in kind, not merely degree, from that of the public. Armory Park
Neighborhood Ass’n v. Episcopal Cmty. Servs. in Ariz., 148 Ariz. 1, 5 (1985)
(citations omitted). The special injury requirement serves an important
purpose:

The rationale behind this limitation [is] two-fold. First, it [is]
meant to relieve defendants and the courts of the multiple
actions that might follow if every member of the public were
allowed to sue for a common wrong. Second, it [is] believed
that a harm which affected all members of the public equally
should be handled by public officials.

Id. at 5 (citing Restatement (Second) of Torts § 821C cmt. a (1979), and Engle
v. Clark, 53 Ariz. 472, 473-74 (1939)). In the present case, the parties do not
dispute the sufficiency of the Tribe’s allegations that reclaimed wastewater
unreasonably interferes with a right common to the public. Accordingly,
we limit our discussion to whether the Tribe sufficiently alleged the second
element — a special injury.

¶11 The contours of a public nuisance claim are imprecise, but the
requisite special injury generally falls into one of three categories:
interference with privately-owned land, pecuniary loss, or personal injury.
See, e.g., Armory Park, 148 Ariz. at 3, 5 (transients trespassing on privately-
owned property); Ariz. Copper Co. v. Gillespie, 12 Ariz. 190, 196, 202 (1909)
(mining debris deposited on privately-owned land); Spur Indus., Inc. v. Del
E. Webb Dev. Co., 108 Ariz. 178, 184 (1972) (odor and flies causing loss of
sales in real estate development); Sullivan v. Am. Mfg. Co. of Mass., 33 F.2d
690, 691 (4th Cir. 1929) (dust and fumes affecting a plaintiff’s health and
property). Few cases address public nuisance claims arising from activities
on public land, and most of those involve commercial fishermen alleging
pecuniary loss from pollution in coastal waters. See, e.g., Burgess v. M/V
Tamano, 370 F. Supp. 247, 249-50 (D. Me. 1973) (finding commercial
fisherman pleaded a special injury, even though “title to . . . coastal waters
and marine life” was vested in the state).

¶12 In an analogous case, the U.S. Supreme Court permitted
members of a religious group to maintain a public nuisance suit to enjoin
the desecration of a cemetery. See Beatty v. Kurtz, 27 U.S. 566, 580 (1829). In
Beatty, members of a Lutheran congregation sought to enjoin the removal
of headstones from a cemetery situated upon land conveyed to the
congregation. Id. The main issue in Beatty was whether the land had been

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properly conveyed to the congregation. Id. at 581-84. The Court held the
conveyance was a “dedication of the lot to public and pious uses.” Id. at
583. However, as a separate issue, the Court addressed whether the church
members could maintain the lawsuit to enjoin a third party from destroying
the cemetery:

This is not the case of a mere private trespass; but a public
nuisance, going to the irreparable injury of the Georgetown
congregation of Lutherans. The property consecrated to their
use by a perpetual servitude or easement, is to be taken from
them; the sepulchres of the dead are to be violated; the
feelings of religion, and the sentiment of natural affection of
the kindred and friends of the deceased are to be wounded;
and the memorials erected by piety or love, to the memory of
the good, are to be removed so as to leave no trace of the last
home of their ancestry to those who may visit the spot in
future generations. It cannot be that such acts are to be
redressed by the ordinary process of law. The remedy must
be sought, if at all, in the protecting power of a court of
chancery; operating by its injunction to preserve the repose of
the ashes of the dead, and the religious sensibilities of the
living.

Id. at 584-85. This emphasis on the emotional, cultural, and religious
significance of the cemetery in Beatty supports the Tribe’s argument here
that interference with a place of special importance can cause special injury
to those personally affected, even when that place of special importance is
upon public land.

¶13 Adopting this position, we find that within its complaint, the
Tribe sufficiently alleges special injury. For example,4 the Tribe alleges:

131. The purity of the ceremonial objects collected by
members of the Hopi Tribe during pilgrimages is of particular
importance. These objects cannot be used for ceremonial
purposes if they become tainted or impure.

138. . . . Natural resources that the Hopi collect, as well as
shrines, sacred areas, and springs on the Peaks will come into

4 The inclusion of these examples is in no way intended to limit the
Tribe’s claims of special injury to the excerpted paragraphs in future
proceedings.

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contact with the blown reclaimed wastewater . . . . This
negatively impacts the Hopi’s use of the Snowbowl Resort
Area, the Wilderness Area, and surrounding areas, and
causes Hopi practitioners to stop using the areas they have
traditionally used.

201. The Hopi Tribe suffers specific injury . . . because the
prevailing winds will blow the artificial snow outside the
boundaries of the application area thus negatively impacting
Hopi’s use of these areas, including for ceremonial
practices . . . .

202. The Hopi Tribe will suffer specific injury . . . because
the artificial snow will blow towards, and melting snow will
runoff into, springs and water bodies the Hopi Tribe uses for
ceremonial and utilitarian purposes.

¶14 We are not persuaded by the City’s reliance upon Oppen v.
Aetna Insurance Co., 485 F.2d 252 (9th Cir. 1973). There, the Ninth Circuit
held that boat owners seeking to recover damages following an oil spill
were not specially injured when “deprived of no more than their occasional
Sunday piscatorial pleasure.” Id. at 253, 260 (internal quotations omitted).
Unlike Oppen, where the boat owners’ loss of navigation rights was no
different in kind from that suffered by the public generally, see id. at 260,
here, the Tribe distinguishes its cultural and religious interest in the Peaks
from the recreational interests of the public at large.

¶15 Snowbowl’s reliance upon In re Exxon Valdez, 104 F.3d 1196
(9th Cir. 1997), is likewise misplaced. In Exxon, the Ninth Circuit held that
a class of Alaska Natives failed to allege a special injury resulting from an
oil spill when the class alleged the spill affected their “subsistence way of
life.” Id. at 1198. A careful reading shows the plaintiffs characterized their
injuries as economic, arguing the damage to natural resources caused by
the oil spill was “inextricably bound up . . . with the exchange, sharing and
processing of those resources as the foundation of an established economic,
social and religious structure.” Id. The Ninth Circuit found this argument
was precluded because all economic claims had been resolved in a prior
settlement. Id. Moreover, the Ninth Circuit relied upon provisions within
the Alaska Constitution reserving the natural resources of the state “to the
people for common use” in concluding “the right to lead subsistence
lifestyles is not limited to Alaska Natives.” Id. (citing Alaska Const. art.
VIII, §§ 3, 15, 17; Gilbert v. State Dep’t of Fish & Game, 803 P.2d 391, 399
(Alaska 1990); and McDowell v. State, 785 P.2d 1, 11-12 (Alaska 1989)).

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Arizona does not have equivalent constitutional provisions, and all people
do not share in the Tribe’s religious and cultural interest in the Peaks.
Accordingly, the court’s reasoning in Exxon is inapplicable here.

¶16 At the pleading stage, the Tribe needs do no more than set
forth facts that, if proven, would warrant relief. See supra ¶ 9. Assuming
the truth of all well-pleaded facts, we find the Tribe has alleged a special
injury sufficient to survive the motion to dismiss. Accordingly, we reverse
the trial court’s dismissal of the complaint and remand for further
proceedings.5 We express no opinion as to the merits of the Tribe’s
underlying claims.

III. Amended Complaint

¶17 The trial court denied the Tribe’s motion to amend after
determining the proposed amended complaint “would be futile, as it fails
to allege the required element of special injury.” Because we find the
Tribe’s allegations are sufficient to survive the motion to dismiss, we vacate
the order denying the motion for leave to amend on this basis. We leave it
to the parties and the court on remand to determine whether the filing of
an amended complaint is necessary and/or appropriate.

IV. Attorneys’ Fees

¶18 The trial court awarded attorneys’ fees to Snowbowl and the
City. The Tribe argues the court erred because the claims did not arise out
of contract. See A.R.S. § 12-341.01(A) (authorizing an award of fees to the
prevailing party in an action arising out of contract). Because we reverse
the dismissal, Snowbowl and the City can no longer be deemed the
successful parties, and the fee award is vacated.

5 After dismissing the complaint for failure to state a claim of special
injury, the trial court declined to address Snowbowl’s other arguments for
dismissal. Because the court did not rule on those issues, we do not address
them. See Twin City Fire Ins. v. Leija, 243 Ariz. 175, 182, ¶ 23 (App. 2017).

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CONCLUSION

¶19 The trial court’s order dismissing the Tribe’s complaint is
reversed. The court’s order denying the Tribe’s motion for leave to file an
amended complaint is vacated. The case is remanded for further action
consistent with this Opinion.

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