Hopi Suit Over Ski Resort’s Wastewater Snow Revived

View of the San Francisco Peaks after the first snow of winter 2016 on Nov. 21, 2016. (Photo by Deborah Lee Soltesz for the U.S. Forest Service)

PHOENIX (CN) – The Arizona Court of Appeals revived a lawsuit Thursday brought by the Hopi Tribe against a northern Arizona ski resort’s use of treated wastewater to make snow on a mountain the tribe considers sacred.

In 2011, the tribe sued the city of Flagstaff in Coconino County Superior Court, claiming the plan to sell treated wastewater to the Arizona Snowbowl ski resort amounted to a public nuisance and would negatively impact people and plants on the San Francisco Peaks. The tribe has contested the resort’s presence on the mountain range for decades, long before it announced in 2002 that it planned to use treated wastewater to extend its ski season.

For the Hopi, the mountain range is a sacred place of worship and is home to kachina spirits integral to the tribe’s religion.

The lawsuit was initially dismissed in 2012, after a superior court judge found the claims had previously been brought by other tribes in federal court and failed.

The Arizona appellate court reversed and sent the public nuisance claim back to the trial court. The judge there dismissed it again in 2016, finding the Hopi failed to prove that the use of wastewater was illegal or unreasonable.

“Given all of the circumstances, the court concludes that the use of reclaimed water by Snowbowl is not unreasonable or illegal under the circumstances, nor is there a likelihood that it will result in irreparable harm to the plaintiff,” Judge Mark Moran wrote in his dismissal.

Writing for a three-judge panel on Thursday, however, Arizona Court of Appeals Judge Kenton Jones found Thursday that the Hopi showed the use of the wastewater caused its members a “special injury” that amounted to a public nuisance.

The special injuries stem from the contact between wastewater and ceremonial objects collected by members of the Hopi during pilgrimages and the effect of the wastewater on the surrounding area.

“Natural resources that the Hopi collect, as well as shrines, sacred areas, and springs on the Peaks will come into contact with the blown reclaimed wastewater,” Jones wrote. “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.”

In 2012, the Ninth Circuit upheld the decision to allow the use of wastewater on the mountain in a challenge from environmentalists. Previously, the federal appeals court had found in a 2008 lawsuit brought by the Navajo, Hopi, and others that it was not a “substantial burden” on the tribes’ religious practices.

Attorneys for the parties did not respond to requests for comment by press time.

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