TUCSON, Ariz. (CN) – Snow made from reclaimed wastewater for an Arizona ski resort won’t cause the Hopi Tribe any nuisance beyond what the general public would suffer despite the presence of sacred sites nearby, the Arizona Supreme Court ruled Thursday.
The ruling overturns a February appeals court decision that found the tribe suffered “special injury” because its sacred sites and objects would be contaminated by compounds left behind in the wastewater. The decision marks the end of a seven-year legal battle between the tribe and the city of Flagstaff and its wastewater customer, Arizona Snowbowl.
“Snowbowl is pleased with the ruling of the Arizona Supreme Court, and looks forward to continuing the current ski season and serving its customers and the community,” the resort’s attorney, John J. Egbert, said in an interview.
The lawsuit stems from a Flagstaff city decision in 2011 to sell treated wastewater to the resort in the San Francisco Peaks mountain range overlooking the town. Under Arizona law, private parties such as the tribe can sue for nuisance only if they suffer harm beyond that of the general public. The tribe argued that its contaminated cultural resources represent that exceptional harm.
But the state’s Supreme Court disagreed.
“Today we hold, as a matter of law, that environmental damage to public land with religious, cultural, or emotional significance to the plaintiff is not special injury for public nuisance purposes,” Justice John Pelander wrote in the 13-page majority opinion, joined by Vice Chief Justice Robert M. Brutinel and Justices Ann A. Scott Timmer, Andrew Gould and John R. Lopez IV.
The tribe argued that runoff, windblown snow, noise and air pollution from the snowmaking would constitute a heightened level of nuisance beyond what the general public would suffer because pharmaceuticals left behind after treatment would contaminate sacred ground and ceremonial plants and water.
The tribe initially lost in Coconino County Superior Court, but an appeals court overturned that decision, noting 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.”
In a dissenting opinion Thursday, Chief Justice Scott Bales wrote that the Supreme Court majority was equating the harm to the Hopi with that suffered by weekend hikers or others who might casually encounter the land.
“The majority fails to appreciate that the wastewater will affect the Hopi’s use and enjoyment of ancestral lands that have played a central role in Hopi culture and religion since before the Coconino National Forest was of concern to the broader public,” Bales wrote.
The mountain range is no ordinary place to the Hopi. It serves as a cardinal point on their tribal compass, and tribe members go there to pray and collect ceremonial plants and water – which will now be contaminated, Bales noted.
“This allegedly will destroy the purity of objects used by the Hopi for their traditional ceremonial practices. In the spring melt, sacred springs will be tainted with the melting wastewater, turning formerly pure ceremonial locations into a secondary sewer,” he wrote.
Justice Clint Bollick joined in the dissent.
A spokeswoman for Flagstaff declined to comment, and attorneys for the Hopi Tribe did not immediately respond to a request for comment.
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