IN THE

SUPREME COURT OF THE STATE OF ARIZONA

HOPI TRIBE,

Plaintiff/Appellant,

v.

ARIZONA SNOWBOWL RESORT LIMITED PARTNERSHIP, ET AL.,

Defendants/Appellees.

No. CV-18-0057-PR

Filed November 29, 2018

Appeal from the Superior Court in Coconino County 

The Honorable Mark R. Moran, Judge

No. CV2011-00701

AFFIRMED

Opinion of the Court of Appeals, Division One

244 Ariz. 259 (App. 2018)

VACATED AND REMANDED

COUNSEL:

Martin P. Clare, Campbell, Yost, Clare & Norell, P.C., Phoenix; and Michael D. Goodstein 

(argued), Anne E. Lynch, Hunsucker Goodstein PC, Washington, DC, Attorneys for Hopi 

Tribe

Paul G. Johnson, Scott F. Frerichs, John J. Egbert (argued), Jennings, Strouss & Salmon,

P.L.C., Phoenix, Attorneys for Arizona Snowbowl Resort Limited Partnership

John A. Klecan (argued), Renaud Cook Drury Mesaros PA, Phoenix; and Kathleen L. 

Wieneke, Wieneke Law Group, P.L.C., Tempe, Attorneys for City of Flagstaff

Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at the Goldwater 

Institute, Phoenix, Attorneys for Amicus Curiae Goldwater Institute
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT

Opinion of the Court

2

JUSTICE PELANDER authored the opinion of the Court, in which VICE CHIEF JUSTICE 

BRUTINEL and JUSTICES TIMMER, GOULD, and LOPEZ joined. CHIEF JUSTICE 

BALES, joined by JUSTICE BOLICK, dissented.

JUSTICE PELANDER, opinion of the Court:

¶1 Private parties may bring public nuisance claims in Arizona if the alleged 

nuisance caused the plaintiff special injury, meaning “damage [that is] different in kind 

or quality from that suffered by the public in common.” Armory Park Neighborhood Ass’n 

v. Episcopal Cmty. Servs. in Ariz., 148 Ariz. 1, 5 (1985). 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.

I.

¶2 The use of reclaimed wastewater for snowmaking on northern Arizona’s

San Francisco Peaks has been extensively debated and litigated. This case is the latest 

chapter of that dispute. Over sixteen years ago, the City of Flagstaff contracted to sell 

reclaimed wastewater to Arizona Snowbowl Resort Limited Partnership (“Snowbowl”)

for artificial snowmaking at its ski area on the Peaks. Because the Peaks are located on 

federal land, this prompted the United States Forest Service to conduct a lengthy

environmental impact inquiry, culminating in that agency’s approval. Thereafter,

various tribes (including the Hopi Tribe), environmental groups, and other interested 

parties unsuccessfully challenged the proposed snowmaking under several federal laws, 

including the Religious Freedom Restoration Act (“RFRA”) of 1993, 42 U.S.C. §§ 2000bb

to 2000bb-4. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) (en banc).

¶3 Following that federal court litigation, Snowbowl, the City, the United 

States Department of Agriculture, and the Hopi Tribe continued to discuss potential 

alternatives to reclaimed water. No agreement was reached, however, and the Tribe 

persistently alleged that no proposed administrative actions “could mitigate the adverse 

effects of using reclaimed wastewater for artificial snowmaking at the Snowbowl.” The 

City also held public hearings on the matter, at which the Tribe and other interested 

parties voiced their opposition to the use of reclaimed wastewater on the Peaks. In 2010, 

the City ultimately voted to proceed with the reclaimed water contract and, after more

public comment, denied a motion to reconsider.

¶4 The Hopi Tribe then filed this action in 2011 against the City on various 

state law grounds, alleging among other things that the City’s “sale of reclaimed 

wastewater to make artificial snow” is a public nuisance that “will result in unreasonable 

harm to the environment and the Hopi Tribe.” As described in the Tribe’s complaint, 

“[r]eclaimed wastewater is water that has been used and circulated through the City’s 
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT

Opinion of the Court

3

municipal water sewer system, has passed through a treatment facility, and meets certain 

standards.” The Tribe further alleged it “has special interests in the environment, 

including the flora and fauna, of the San Francisco Peaks in the immediate vicinity of the 

Snowbowl Resort Area.” The Tribe also claimed it “will suffer specific injury” from the

“runoff, windblown snow, increased unnatural noise, and elevated air pollution [that] 

will pervade beyond the Snowbowl Resort Area” and into areas the Tribe uses “for 

ceremonial practices, hunting[,] . . . the gathering of natural resources[,] . . . and 

utilitarian purposes.” For example, “[n]atural 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,” “negatively impact[ing]” the Tribe’s use of the wilderness and 

surrounding areas. More broadly, the Tribe alleged that “the Snowbowl expansion 

project,” “additional traffic,” and the very “presence of the Snowbowl Resort” itself will 

adversely impact the “natural environment” and unduly interfere with the Tribe’s

cultural use of the public wilderness for religious and ceremonial purposes.

¶5 The City filed a third-party indemnification claim against Snowbowl, which 

then moved to dismiss the Tribe’s public nuisance claim under Arizona Rule of Civil 

Procedure 12(b)(6), arguing the Tribe’s alleged damages do not constitute the “special 

harm” needed to maintain that claim. The City later joined in that motion, and the trial 

court granted it, ruling that the Tribe “failed to satisfy the [special injury] requirement on 

the basis of . . . religious or cultural practices.” (In its ruling, entered in August 2016, the 

trial court noted the uncontested fact that “Snowbowl has used the reclaimed water since 

2012.”) The court also granted Snowbowl and the City’s request for attorney fees under 

A.R.S. § 12-341.01(A).

¶6 The court of appeals reversed, concluding that “the Tribe has alleged a 

special injury sufficient to survive the motion to dismiss” because “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.” Hopi Tribe v. Ariz. Snowbowl 

Resort Ltd. P’ship, 244 Ariz. 259, 263 ¶¶ 12–13, 264 ¶ 16 (App. 2018). To support this 

conclusion, the court relied on Beatty v. Kurtz, 27 U.S. 566 (2 Pet.) (1829), which

purportedly “emphasi[zed] . . . the emotional, cultural, and religious significance of the 

cemetery” at issue in that case. Hopi Tribe, 244 Ariz. at 263 ¶ 12. The court also vacated 

the trial court’s fee award because “Snowbowl and the City can no longer be deemed the 

successful parties.” Id. at 65 ¶ 18.

¶7 We granted review because whether an alleged special injury sufficiently 

supports a claim for public nuisance is an issue of statewide importance. We have 

jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. 

§ 12-120.24.
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Opinion of the Court

4

II.

¶8 “We review the dismissal of a complaint under Rule 12(b)(6) de novo.” 

Zubia v. Shapiro, 243 Ariz. 412, 414 ¶ 13 (2018). In doing so, we assume as true the

complaint’s well-pleaded facts and will affirm only if, “as a matter of law[,] [the] plaintiffs 

would not be entitled to relief under any interpretation of the facts susceptible of proof.” 

Fid. Sec. Life Ins. Co. v. Ariz. Dep’t of Ins., 191 Ariz. 222, 224 ¶ 4 (1998).

¶9 Unlike private nuisances, which “‘affect[] a single individual or a definite 

number of persons in the enjoyment of some private right,’” public nuisances are 

characteristically broad in scope and “encompass[] any unreasonable interference with a 

right common to the general public.” Armory Park, 148 Ariz. at 4 (quoting City of Phoenix 

v. Johnson, 51 Ariz. 115, 123 (1938)); accord Restatement (Second) of Torts (“Restatement”)

§ 821B (Am. Law Inst. 1979). Thus, based on the notion that public rights “are normally 

enforced only by public authorities,” 2 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, 

The Law of Torts § 403, at 639 (2d ed. 2011), the common law precluded private citizens’

actions to abate or suppress public nuisances. Armory Park, 148 Ariz. at 5.

¶10 The modern rule is more relaxed, allowing a private party to make a public 

nuisance claim if his or her “damage [is] different in kind or quality from that suffered 

by the public in common.” Id. This so-called “special injury” requirement serves two 

important functions. First, it “relieve[s] 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.” Id. Second, in keeping with principles of separation of powers and judicial 

restraint, it ensures that “harm[s] . . . affect[ing] all members of the public equally [are]

handled by public officials” rather than by courts in private litigation. Id.; see also Engle 

v. Clark, 53 Ariz. 472, 474 (1939) (rejecting private citizen’s action to enjoin a previously 

declared public nuisance because such duty fell on the state’s attorney general “and the 

other proper public authorities”); Restatement § 821C cmt. b.

¶11 “[T]he question of standing in Arizona is not a constitutional mandate”

because Arizona has “no counterpart to the ‘case or controversy’ requirement of the 

federal constitution.” Armory Park, 148 Ariz. at 6. Nonetheless, both the trial court and

court of appeals framed the special injury issue here as “whether the Tribe sufficiently 

alleged standing to maintain a common law public nuisance claim.” Hopi Tribe, 244 Ariz. 

at 260 ¶ 2. That framing is understandable because this Court has equated the special 

injury requirement with the plaintiff’s “standing to bring an action to enjoin a public 

nuisance.” Armory Park, 148 Ariz. at 5; see also Sears v. Hull, 192 Ariz. 65, 70 ¶¶ 18–19 

(1998). More precisely, however, special injury is a requisite element of a private 

plaintiff’s prima facie public nuisance claim, Armory Park, 148 Ariz. at 5, the other element

being an “unreasonable interference with a right common to the general public” that 

“affect[s] a considerable number of people,” id. at 4. Rather than equating special injury

with standing to sue, it is more apt to say that if that element is not sufficiently alleged or 
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT

Opinion of the Court

5

proven, a private plaintiff’s public nuisance claim fails as a matter of law. Cf. Borton v. 

Mangus, 145 P. 835, 836–37 (Kan. 1915) (stating that, although trial court dismissed public 

nuisance action “on the ground that the plaintiff lacked legal capacity to sue,” he had 

standing but did not establish any “special damage” from obstruction of public highway 

and thus failed to “state facts which constitute a cause of action entitling him to relief”).

¶12 Solely for purposes of their motion to dismiss, Snowbowl and the City 

concede the Tribe adequately alleged a public nuisance. Therefore, without addressing 

that point, we limit our review to whether the Tribe sufficiently alleged special injury for 

an actionable public nuisance claim.

A.

¶13 Although there is “[c]onsiderable disagreement . . . over the type of injury” 

that is “sufficient to distinguish [a] plaintiff’s injuries from those experienced by the 

general public,” Armory Park, 148 Ariz. at 5, generally “[i]t is not enough that [the 

plaintiff] has suffered the same kind of harm or interference but to a greater extent or 

degree,” Restatement § 821C cmt. b; see also Ariz. Copper Co. v. Gillespie, 12 Ariz. 190, 201 

(1909) (stating that special injury is “different in kind, and not merely in degree, from that 

suffered by the public generally”). But “[w]here to draw the line . . . is often a difficult 

task” because “it is often a mere matter of degree . . . between the more immediate 

obstruction or peculiar interference, which is a ground for special damage, and the more 

remote obstruction or interference [that] is not.” Ariz. Copper, 12 Ariz. at 201 (quoting 

Kaje v. Chi., St. Paul, Minneapolis & Omaha Ry. Co., 59 N.W. 493, 493 (Minn. 1894)). The 

issue, then, is where that line falls in this case.

¶14 Primarily relying on In re Exxon Valdez, 104 F.3d 1196 (9th Cir. 1997), 

Snowbowl contends that the alleged injury here is to the Tribe’s “desire to enjoy ‘pristine 

natural surroundings,’” see id. at 1198, which “is a right shared by the public generally.” 

Snowbowl argues that injury is not transformed into “special harm” “[j]ust because [the 

Tribe’s] members . . . wish to access the Peaks for religious reasons” when “others’ 

motivations are environmental or recreational.” The Tribe counters that “the reclaimed 

wastewater has directly and significantly impeded [its] use and enjoyment of a place of 

special importance to the Tribe by thwarting [its] religious practices” on the Peaks. 

According to the Tribe, such “significant interference with its use of sacred places that 

have formed a central component of its cultural and religious life since before recorded 

history” constitutes “injury [that] is clearly different in kind [from] that suffered by the 

public.” The Tribe maintains that recognizing its injury as “special” “fits squarely within 

long-established Arizona and other applicable precedent,” including Armory Park and 
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT

Opinion of the Court

6

Beatty, and supports its public nuisance claim.

1

¶15 We agree with Snowbowl. Contrary to the Tribe’s assertion that the placeof-special-importance form of special injury is consistent with Arizona law, the only

public nuisance cases in which we have recognized special injury involved property or 

pecuniary interests not present here. See, e.g., Armory Park, 148 Ariz. at 3, 5 (involving 

trespass upon and resulting injury to plaintiff’s interest in land, and finding special 

damage because defendant’s patrons’ actions “affected the [plaintiff’s] residents’ use and 

enjoyment of their real property” (emphasis added)); Spur Indus., Inc. v. Del E. Webb Dev.

Co., 108 Ariz. 178, 184 (1972) (injury to plaintiff’s pecuniary interest from loss of sales due 

to defendant’s cattle feedlot operation); Ariz. Copper, 12 Ariz. at 197, 202 (injury to 

plaintiff’s property and pecuniary interests caused by defendant’s depositing of 

sedimentary matter into river system, resulting in “direct individual injury” to plaintiff’s 

irrigated, cultivated lands and crop-raising). In fact, in Sears we relied on Armory Park’s 

property-based description of special injury to conclude that a tribal casino’s allegedly 

substantial, negative impact on the “character and quality of [the plaintiffs’] 

community”—a place of special importance to the plaintiffs—was, “as a matter of law, 

not sufficient to establish . . . any special injury.” 192 Ariz. at 68 ¶ 6, 70 ¶ 22 (internal 

quotation marks omitted). We therefore ordered the trial court to grant the defendant

Tribe’s motion to dismiss the action, including the public nuisance claim. Id. at 68 ¶ 7, 73 

¶ 32.

¶16 The dissent argues that “[t]hese cases do not require that the interest at 

stake be a property or pecuniary interest.” Infra ¶ 52. Perhaps not expressly, but they all 

involved damage to or interference with such an interest and do not support recognizing

a new place-of-special-importance category. And we see good reason for generally

adhering to a property- and pecuniary-interest-based approach because, unlike the 

proposed new category, it comports with the underlying, two-part rationale for the 

special injury requirement. See supra ¶ 10.

¶17 First, because a particular place’s religious importance is inherently 

subjective, see Navajo Nation, 535 F.3d at 1070, courts are ill-equipped to determine 

whether “one form of incidental interference with an individual’s spiritual activities”

should be analyzed differently from that of another, Lyng v. Nw. Indian Cemetery Protective 

Ass’n, 485 U.S. 439, 450 (1988); accord Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 

872, 887 (1990) (“Repeatedly and in many different contexts, we have warned that courts 

 

1 Conduct may constitute “a public nuisance within the concept of tort law, even if that 

conduct is not specifically prohibited by the criminal law.” Armory Park, 148 Ariz. at 10. 

Nonetheless, the Tribe does not allege a public nuisance within the meaning of Arizona 

statutes that expressly address, define, and proscribe “public nuisance[s],” including a 

provision that specifically refers to water. See A.R.S. §§ 13-2917, 36-601(A)(18).
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT

Opinion of the Court

7

must not presume to determine the place of a particular belief in a religion or the 

plausibility of a religious claim.”), superseded by statute on other grounds, RFRA, Pub. L. 

No. 103-141, 107 Stat. 1488, as recognized in Holt v. Hobbs, 135 S. Ct. 853, 859–60 (2015). This 

renders courts unable to comparatively “weigh the adverse effects” of an alleged 

interference with a place of religious importance, Lyng, 485 U.S. at 449, potentially 

allowing “every member of the public . . . to sue for a common wrong” when that is 

precisely what the special injury requirement is meant to prevent, Armory Park, 148 Ariz. 

at 5.

¶18 Second, equally if not more troubling is the effect the place-of-specialimportance category would have on the notion that “invasions of rights common to all of 

the public should be left to be remedied by action by public officials.” Restatement § 821C 

cmt. b; accord Armory Park, 148 Ariz. at 5. At its core, the special injury requirement serves

a gatekeeping function that prevents courts from deciding issues under the guise of 

public nuisance claims when such issues are best left to public officials, a pivotal principle 

in federal cases grappling with religious freedom challenges to public land uses.

¶19 Lyng illustrates this well. There, various parties, including “an Indian 

organization, individual Indians, nature organizations and individual members of those 

organizations, and the State of California,” brought a religious-freedom-based challenge 

to a proposed road upgrade and timber harvesting in California’s Chimney Rock area. 

485 U.S. at 443. The plaintiffs claimed that those projects violated their rights under the 

First Amendment’s Free Exercise Clause and various federal statutes. Id.

¶20 The United States Supreme Court rejected the challenge, id. at 453, despite 

recognizing that “the logging and road-building projects at issue in th[e] case could have 

devastating effects on traditional Indian religious practices” that are “intimately and 

inextricably bound up with the unique features of the Chimney Rock area,” id. at 451. 

Even so, the Court reasoned that “government simply could not operate if it were 

required to satisfy every citizen’s religious needs and desires” because what some 

consider “essential to the[ir] spiritual well-being” will be “deeply offensive, and perhaps

incompatible . . . with the tenets of [others’] religion.” Id. at 452. The Court also 

emphasized that the judiciary “cannot . . . reconcile the various competing demands on 

government, many of them rooted in sincere religious belief, that inevitably arise in so 

diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures 

and other institutions.” Id.

¶21 As the Court in Lyng observed, “[w]hatever rights the Indians may have to 

the use of the area, . . . those rights do not divest the Government of its right to use what 

is, after all, its land.” Id. at 453. Accordingly, the Court declined to give plaintiffs a 

potentially boundless “veto” or “religious servitude” that “could easily require de facto 

beneficial ownership of some rather spacious tracts of public property.” Id. at 452–53; see 

also Navajo Nation, 535 F.3d at 1063–64 (upholding governmental action against citizens’ 
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT

Opinion of the Court

8

“individual veto” based on “religious beliefs, sensibilities, or tastes” because “giving one 

religious sect a veto over the use of public park land would deprive others of the right to 

use what is, by definition, land that belongs to everyone”). Although this case does not 

involve First Amendment or federal statutory claims, it similarly illustrates how the 

place-of-special-importance category the Tribe urges (and the court of appeals embraced)

would essentially empower a lone plaintiff to interfere with decisions by public officials 

(made here after extensive input from interested parties, including the Tribe) concerning 

the best use of public lands. Accordingly, we reject that new category because it would 

contravene, not further, the dual rationales underlying the special injury requirement for 

public nuisance claims.

¶22 The reclaimed water contract at issue here went through a nearly decadelong review process in which the Tribe participated and actively voiced its opposition. 

That process included a series of public hearings at which the City considered alternatives 

to reclaimed water. And after approving the contract with Snowbowl, the City

considered, held public comment on, and ultimately denied a motion to reconsider its 

decision. The U.S. Department of Agriculture and the U.S. Forest Service also conducted 

inquiries under the National Environmental Procedure Act and ultimately approved the 

use of reclaimed water for snowmaking on the Peaks. As noted above, supra ¶ 2, the 

federal courts also rejected the claims of the Hopi Tribe and others that the use of recycled 

wastewater for making artificial snow on the Peaks violates their rights under RFRA and 

other federal statutes. Navajo Nation, 535 F.3d at 1062–63, 1070 (holding that “the 

diminishment of spiritual fulfillment—serious though it may be—is not a ‘substantial 

burden’ on the free exercise of religion,” despite plaintiffs’ claims that use of reclaimed 

water “on a sacred mountain desecrates the entire mountain, deprecates their religious 

ceremonies, and injures their religious sensibilities”).2

¶23 Aside from its disagreement with the outcome, the Tribe does not allege 

that any aspect of this process was procedurally flawed or otherwise defective. And 

despite the Tribe’s insistence that it does not seek a “unilateral veto,” it concedes that its 

claim, if allowed to proceed, would require the trial court to “[weigh and balance the 

equities of] an activity previously approved by other branches of the government.” This 

clearly contradicts the rationale underlying the special injury requirement, and we 

therefore decline the Tribe’s invitation to “[re]consider the benefits and harm” of using 

 

2 Snowbowl and the City do not argue, nor do we hold, that the Tribe’s public nuisance 

claim is barred by issue or claim preclusion principles based on the Tribe’s participation 

in Navajo Nation or prior administrative and other governmental proceedings relating to 

the reclaimed water contract. The court of appeals previously rejected such assertions. 

See Hopi Tribe, 244 Ariz. at 262 ¶ 6. But this history does bear on the rationale for limiting 

the type of special injury that will support such a claim, so as to allow public officials to 

handle claims of harm that affect “rights common to all of the public.” Restatement 

§ 821C cmt. b.
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Opinion of the Court

9

reclaimed water for snowmaking on the Peaks. Because the Tribe has not presented 

sufficient reason for departing from the property- and pecuniary-interest-based approach 

that our case law has followed, we decline to do so here when the Tribe’s alleged injury 

is different in degree, not in kind, and is best addressed by public officials or 

congressional acts governing the Tribe’s use of public lands for religious purposes.

B.

¶24 The law of nuisance is aptly described as an “impenetrable jungle” that has 

been “applied indiscriminately . . . as a substitute for any analysis of a problem.” W. Page 

Keeton et al., Prosser and Keeton on the Law of Torts § 86, at 616–17 (5th ed. 1984). Indeed, 

“some rather fine lines have been drawn” to determine what constitutes special injury, 

id. at 647, often resulting in outcomes that are difficult to reconcile, see Ariz. Copper, 12 

Ariz. at 202; Restatement § 821C cmt. b (discussing the “difficulty or impossibility of 

drawing any satisfactory line” for special injury purposes). Thus, limiting special injury 

to property or pecuniary interests helps prevent “the erosion of any semblance of 

doctrinal consistency in the common law of nuisance.” Overcash v. S.C. Elec. & Gas Co., 

614 S.E.2d 619, 622 (S.C. 2005).

¶25 Although the Tribe does not allege it has a property or pecuniary interest 

in the Peaks or that its open, unfettered access to those public lands has been impaired, it

urges us to expand special injury beyond the types of concrete interests involved in our 

prior cases. To that end, the Tribe contends that Beatty, first raised and heavily relied on 

by the court of appeals, “reveals that special injury may exist where a site with ‘emotional, 

cultural, and religious significance’ is damaged.” See Hopi Tribe, 244 Ariz. at 263 ¶ 12. 

But contrary to the court of appeals’ description of Beatty, that case did not involve “a 

public nuisance suit.” Id. Rather, it was an action to quiet title in land used as a cemetery 

and to enjoin the defendants from “dispossess[ing] the plaintiffs and . . . remov[ing] the 

tomb stones and graves.” Beatty, 27 U.S. (2 Pet.) at 579–80. To be sure, the Beatty Court 

described the defendants’ actions as a “public nuisance,” but it did so only in passing and 

to preface its declaration that the land was “consecrated to [the plaintiffs’] use by a 

perpetual servitude or easement,” id. at 584—a property interest not present here. 

Therefore, unlike the court of appeals, we do not find Beatty “analogous” or “support[ive] 

[of] the Tribe’s argument here.” Hopi Tribe, 244 Ariz. at 263 ¶ 12. Nor, apparently, does 

the dissent.

¶26 Again departing from the court of appeals, we find Exxon Valdez

particularly persuasive in refuting the Tribe’s alleged special injury. See Hopi Tribe, 244

Ariz. at 264 ¶ 15 (finding the Exxon Valdez court’s reasoning “inapplicable”). The 

“determinative issue” in that public nuisance case was “whether cultural damage,” 

meaning “injury to [Alaska Natives’] culture or . . . subsistence way of life,” caused by 

the Exxon Valdez oil spill was different in kind from “that suffered by other Alaskans.” 

Exxon Valdez, 104 F.3d at 1197–98. Although the Ninth Circuit acknowledged that “the 
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Opinion of the Court

10

oil spill affected the communal life of Alaska Natives,” perhaps “more severely than other 

members of the public,” the court nonetheless concluded the Natives’ injury was different 

only in degree because “the right to obtain and share wild food, enjoy uncontaminated 

nature, and cultivate traditional, cultural, spiritual, and psychological benefits in pristine 

natural surroundings is shared by all Alaskans.” Id. at 1198 (internal quotation marks 

omitted).

¶27 Here, the Tribe alleges harm to its “special interests in the environment,” 

including its right to use and enjoy the Peaks in their “unimpaired,” “natural condition.” 

But like the Alaska Natives in Exxon Valdez, the Tribe shares that right with the public.

Indeed, as the Tribe’s complaint acknowledges, Congress protected and preserved the 

land in question “for the use and enjoyment of the American people in such manner as 

will leave [it] unimpaired for future use and enjoyment as wilderness.” 16 U.S.C. 

§ 1131(a); accord, e.g., High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 646 (9th Cir. 2004). 

This at very least shows that the Peaks are a place of special importance to all Americans, 

who are entitled to use and enjoy it in a condition “untrammeled by man.” 16 U.S.C. 

§ 1131(c). And in light of that broad congressional mandate, we find unpersuasive the 

court of appeals’ distinguishing Exxon Valdez based on “the Alaska Constitution 

reserving the natural resources of the state to the people for common use.” Hopi Tribe, 

244 Ariz. at 264 ¶ 15 (internal quotation marks omitted).

¶28 Although the Tribe does not specifically allege any property interest to 

support its public nuisance claim, the dissent finds such an interest in federal law. Citing 

25 U.S.C. § 3054, the dissent asserts that the Tribe has a “special, distinct, tangible status 

recognized by federal law and is not shared by the general public.” Infra ¶ 47. But the 

Tribe does not allege that the City–Snowbowl contract or the authorized use of reclaimed 

wastewater on the Peaks has impaired the Tribe’s federal statutory rights of access or 

privacy for traditional, cultural activities. Moreover, the very statute on which the dissent 

relies provides that “[a]ccess by Indian tribes to National Forest System land under this 

subsection shall be consistent with the purposes of Public Law 95-341 (commonly known 

as the American Indian Religious Freedom Act [(“AIRFA”)]; 42 U.S.C. [§] 1996).” 25 

U.S.C. § 3054(b)(3). In Lyng, the Supreme Court examined AIRFA and its legislative 

history and found no “hint of any intent to create a cause of action or any judicially 

enforceable individual rights.” 485 U.S. at 455. Lyng also noted that Representative

Morris Udall, who sponsored the bill that became AIRFA, “emphasized that [it] would 

not ‘confer special religious rights on Indians,’ would ‘not change any existing State or 

Federal law,’ and in fact ‘has no teeth in it.’” Id. (quoting 124 Cong. Rec. 21,444–45 (1978)).

¶29 Still, the Tribe and the dissent insist that Spur Industries, Arizona Copper, and 

Restatement § 821C make clear that “[d]egree of [h]arm [c]annot [b]e [i]gnored” and

“frequent use of a resource” almost always indicates a “special interest” the public does 

not share. But we have never held that a common injury may become “special” merely

because the party’s use of public property is frequent or the degree of harm alleged is 
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Opinion of the Court

11

substantial. In fact, the only discussion of degree in Spur Industries relates to “[t]he 

difference between a private nuisance and a public nuisance,” not whether degree is 

relevant to the special injury inquiry. 108 Ariz. at 183. As the Tribe points out, our prestatehood court said, “it is often a mere matter of degree . . . which is a ground for special 

damage.” Ariz. Copper, 12 Ariz. at 201. That statement, however, merely referred to the 

difference between “immediate” or “peculiar” harm and that which is “remote.” Id.

¶30 To be sure, Arizona Copper quoted other courts’ indistinct language

suggesting special injury could arise from “personal inconvenience or annoyance,” but 

that case did not extend special injury beyond harm to the plaintiff’s property or person. 

See id. at 201–02 (internal quotation marks omitted) (quoting Wesson v. Washburn Iron Co., 

95 Mass. 95, 103 (1866)). Indeed, we later expressly declined to do so in Sears. 192 Ariz. 

at 70 ¶ 22; cf. Overcash, 614 S.E.2d at 622 (“[T]he special or particular injury 

requirement . . . is satisfied only by injury to the individual’s real or personal property.”). 

To hold otherwise would strike at the special injury requirement’s core.

¶31 The out-of-state cases the Tribe cites to support its special injury allegation 

are inapposite. Unlike those cases, this case does not involve harm resulting from a 

complete blockage of, or substantial interference with, access to a cemetery where a 

plaintiff owns plots or has loved ones buried. See, e.g., Scruggs v. Beason, 20 So. 2d 774, 

775 (Ala. 1945) (stating defendant completely blocked a public road that was “the only 

means of entry to and from the graveyard” where plaintiffs’ relatives were buried, 

depriving plaintiffs of the “right to visit, maintain and beautify the graves”); Connolly v. 

Frobenius, 574 P.2d 971, 979 (Kan. Ct. App. 1978) (“[O]wners of lots in a dedicated 

cemetery . . . [could] seek relief from any unauthorized use to be made of the cemetery.”); 

German Evangelical St. Marcus Congregation of St. Louis v. Archambault, 404 S.W.2d 705, 706–

07 (Mo. 1966) (recognizing right of plaintiffs who had near relatives buried in graveyard 

to prevent cemetery’s abandonment and “removal of remains of persons buried there”).

¶32 The Tribe and dissent’s reliance on Restatement § 821C, and particularly 

that section’s comment c, is likewise misplaced. Infra ¶ 55. That comment observes that 

a plaintiff who “traverses [a] road a dozen times a day . . . nearly always has some special 

reason to do so, and that reason will almost invariably be based upon some special 

interest of his own.” Restatement § 821C cmt. c. But comment c, which has no 

illustrations and cites no supporting case law, simply concludes that “in determining 

whether there is a difference in the kind of harm, the degree of interference may be a factor 

of importance that must be considered.” Id. (emphasis added). The comment’s

unsupported, abstract generalizations are of little help, particularly when the Tribe

(beyond stating that its members go to the Peaks every month for prayers) does not 

specifically allege how frequently it used the Peaks for religious or cultural purposes.

¶33 In addition, the Restatement makes clear that “[i]t is not enough that [the 

plaintiff] has suffered the same kind of harm or interference but to a greater extent or 
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT

Opinion of the Court

12

degree.” Id. cmt. b. That statement, with which we agree, undermines the Tribe’s claim 

of special injury because, as the Tribe’s complaint acknowledges, many people “rely on 

the purity and sanctity of the Peaks,” including “several Indian tribes.” And, as the Tribe 

also alleges, “many others . . . repeatedly and consistently voiced [their] opposition to 

both the sale of reclaimed wastewater and any additional development on the San 

Francisco Peaks.” The Tribe’s alleged injury is therefore different only in degree, which 

does not make it “different in kind or quality from that suffered by the public in 

common.” Armory Park, 148 Ariz. at 5. Indeed, the Tribe’s graphic descriptions of 

reclaimed wastewater and its effects, as detailed in the complaint and repeatedly 

emphasized by the dissent, strongly suggest that anyone and everyone who visits the 

Peaks, not just the Tribe, will suffer substantial environmental harm.

¶34 As explained above, “special injury” in this context is a term of art

describing “harm of a kind different from that suffered by other members of

the public exercising the right common to the general public that was the 

subject of interference.” Restatement § 821C(1); see Armory Park, 148 Ariz. at 5. 

This is different from the colloquial meaning of “special,” which often describes 

something “exceptionally good or precious.” Special, OxfordDictionaries.com, 

https://en.oxforddictionaries.com/definition/us/special (last visited Nov. 26, 2018). 

Thus, declining to recognize alleged harm as “special” does not mean the underlying 

interest is insignificant or unimportant. Contrary to the dissent’s insinuation, we 

emphasize that our legal conclusion neither disregards nor minimizes the authenticity or 

meaningfulness of the Tribe’s culture, ceremonial practices, or religious beliefs. Cf. Lyng, 

485 U.S. at 453 (“Nothing in our opinion should be read to encourage . . . insensitivity to 

the religious needs of any citizen.”).

C.

¶35 The Tribe argues that the special injury requirement applies with less force 

when, as here, the plaintiff seeks to enjoin the alleged public nuisance. We disagree.

¶36 In analyzing public nuisance claims, no Arizona case has distinguished for 

analytical purposes actions seeking damages from those seeking only injunctive relief. In 

fact, in Armory Park the plaintiff sought, and the trial court granted, only injunctive relief. 

148 Ariz. at 2–3, 10. In affirming the trial court’s preliminary injunction, this Court did 

not apply a lower or different standard for establishing special injury and recognized the 

two-fold rationale for that requirement in all public nuisance actions. Id. at 4–5. But even 

assuming that the special injury criteria differ for equitable remedies, those criteria are 

inapposite here—the complaint states that the Tribe is seeking an injunction “or in the 

alternative, damages.”
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT

Opinion of the Court

13

III.

¶37 For the reasons stated above, we affirm the trial court’s judgment in favor 

of Snowbowl and the City on the Tribe’s public nuisance claim, vacate the court of 

appeals’ opinion, and remand the case to the court of appeals to determine whether the 

trial court’s fee award is supportable and appropriate under A.R.S. § 12-341.01(A). In our 

discretion, assuming that statute applies, we decline the City and Snowbowl’s requests

for fees incurred in this Court.
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT

CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, Dissenting

14

CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, dissenting.

¶38 The issue is whether the Hopi have alleged facts that, if proved at trial, 

would entitle them to relief for a claim of public nuisance based on Snowbowl’s use of 

reclaimed wastewater on the San Francisco Peaks. To state a claim, the Hopi need only 

allege that (1) the use of the wastewater is a public nuisance, that is, an “unreasonable 

interference with a right common to the general public,” Armory Park Neighborhood Ass’n 

v. Episcopal Cmty. Servs., 148 Ariz. 1, 4 (1985), and (2) the Hopi suffer a “special injury” 

from the nuisance, “different in kind” from that experienced by the general public. Id.

That the complaint alleges a public nuisance is not disputed.

¶39 Today’s majority holds that the Hopi have failed sufficiently to allege a 

special injury, thus denying them outright an opportunity to prove their claims in court.

In so doing, the majority understates the nature of the alleged public nuisance, largely 

ignores the distinctive harms alleged by the Hopi, and adopts a new rule unduly limiting 

public nuisance claims. I respectfully dissent.

I.

¶40 Neither the majority nor the appellees contest that the Hopi have 

sufficiently alleged that the use of reclaimed wastewater on the San Francisco Peaks 

constitutes a public nuisance. Although the majority gives little attention to this point, 

understanding the purported harm inflicted on the public is essential to understanding 

the particularized harms alleged by the Hopi. In reviewing a ruling on a motion to 

dismiss, we assume the truth of all well-pleaded facts in the complaint. Zubia v. Shapiro, 

243 Ariz. 412, 414 ¶ 13 (2018).

¶41 As to the public nuisance, the material factual allegations can be 

summarized as follows. Due to an ongoing expansion effort, Snowbowl wants to create 

artificial snow to accommodate an uptick in skiers. To produce this artificial snow, 

Snowbowl seeks to use reclaimed wastewater. The term is self-explanatory: water that 

has been through the municipal sewer system is put to a second use. Water coming from 

the sewer system carries what one would normally expect in a sewer, as well as myriad 

components including pharmaceuticals, legal and illicit drugs, veterinary drugs, 

hormones, and insecticides.

¶42 When the wastewater reaches the water treatment center, it is subjected to 

only limited treatment. Some contaminants are removed, but not all, and the process is 

not designed to remove all contaminants. The water is then discharged from the plant 

and put to its destined use - here, the creation of snow. The reclaimed wastewater is nonpotable (that is, the water is unfit for consumption).

¶43 The reclaimed wastewater is treated at the Rio de Flag Treatment Plant.

Studies of reclaimed water from this plant found chemicals that interfere with the basic 
HOPI TRIBE V. ARIZONA SNOWBOWL RESORT

CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, Dissenting

15

biology of wildlife. The wastewater also has elevated nitrogen levels, which contributes 

to the growth of invasive plant life, possibly choking out native flora, impairing soil 

fauna, and otherwise affecting the ecosystem.

¶44 Snowbowl will use this water to create snow for skiers. Winds will blow 

this snow over swaths of land and, come the spring melt, the various compounds in the 

wastewater will percolate into the soil of the San Francisco Peaks. This allegedly 

endangers several species already facing extinction and mars an ecosystem unique in 

Arizona.

II.

¶45 That is the harm allegedly suffered by the general public - the baseline 

against which the Hopi’s harm is measured. The majority finds that the Hopi have failed 

to articulate any harm beyond that suffered by the general public - the harm suffered by 

the Hopi is qualitatively no different than that experienced by a weekend hiker or 

concerned environmentalist. 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.

¶46 The Hopi refer to the San Francisco Peaks as Nuvatukya’ovi and hold them 

out as the single most sacred place in Hopi culture. They are so central to Hopi religious 

beliefs that they mark a cardinal direction in the Hopi universe. Each month, members 

of the Tribe go to the Peaks to pray, and during some months, members collect water, 

herbs, and greens for ceremonial use. These pilgrimages play an essential role in Hopi 

life.

¶47 The U.S. Forest Service has recognized the Peaks as a Traditional Cultural 

Property and determined they are eligible for the National Register of Historic Places. In 

making this determination, the Forest Service recognized that the Peaks contain shrines 

and other ceremonial locations, provide plant and animal resources necessary for 

ceremonial use, and contain places related to the legends of the very origin of the 

Hopi. Further, the Forest Service is required to provide access to National Forest System 

lands to the Hopi for traditional and cultural purposes, 25 U.S.C. § 3054(a), and upon 

request from the Hopi, the Secretary of Agriculture may close to public access specifically 

identified Forest Service land to “protect the privacy of tribal activities for traditional and 

cultural purposes.” 25 U.S.C. § 3054(b)(1). This is a special, distinct, tangible status 

recognized by federal law and is not shared by the general public. This point is not 

answered by observing, supra ¶ 25, that the Hopi are not denied access to the Peaks. Their 

rights of access recognize but do not define the Hopi’s particular interests, rooted in Hopi 

tradition and culture. Additionally, whether Congress has recognized a private cause of 

action or judicially enforceable rights in the American Indian Religious Freedom Act, 
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CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, Dissenting

16

supra ¶ 28, is not relevant, as those issues are distinct from whether the Hopi have alleged 

a special injury for the purposes of a state public nuisance claim.

¶48 Before Snowbowl came into existence, the Hopi frequently traveled to and 

through the area. Now, what the Hopi consider a spiritual birthplace is at the base of ski 

slopes. Snowbowl seeks to introduce snow created from reclaimed wastewater into this 

environment. Moreover, prevailing winds will blow the snow well beyond the 

boundaries of Snowbowl, covering sacred land, shrines, springs, and other natural 

resources with the reclaimed wastewater, including its traces of drugs, nitrogen, and 

other components. 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. Moreover, the myriad chemicals in the water will wreak unknown 

damage on the local ecosystem, further degrading traditional and sacred Hopi resources 

and locations.

¶49 In sum, the Hopi face the destruction and desecration of some of their most 

sacred locations and practices. This is the harm that the majority claims is no different 

than that suffered by the public at large. See supra ¶ 27. But the general public does not 

have millennia of religious practice in the area that will be covered in a fine film of 

reclaimed sewage. Nor does the general public have rights of access and use - rooted in 

Hopi tradition and cultural practices - recognized by federal statutes. The interference 

with the Hopi’s access to and use of the San Francisco Peaks, as well as surrounding lands 

affected by windblown or melting snow, is an injury different in kind from that suffered 

by the public generally.

III.

¶50 In disregarding the Hopi’s claims, the majority creates a new rule, without 

precedent in our jurisprudence. Although this will ease the judiciary’s line-drawing 

problem in future cases, it undermines the purpose of the public nuisance claim.

¶51 At common law, private parties were prohibited from bringing claims for 

public nuisance. Armory Park, 148 Ariz. at 5. Modern law, and our own case law, are 

more forgiving, allowing private parties to bring a public nuisance claim so long as they 

show a special injury - damage “different in kind or quality from that suffered by the 

public in common.” Id. Until today, the requisite special injury could come in various 

forms. The majority, however, declares that, apart from personal injuries, only injuries 

to property or pecuniary interests will suffice. See supra ¶ 23.

¶52 We have long recognized that special injury, required in cases seeking 

either damages or injunctive relief, can take various forms. See, e.g., Sears v. Hull, 192 

Ariz. 65, 70 ¶ 19 (1998); Armory Park, 148 Ariz. at 5; Spur Indus., Inc. v. Del E. Webb Dev. 

Co., 108 Ariz. 178, 184 (1972); City of Phoenix v. Johnson, 51 Ariz. 115, 123–24 (1938); Ariz. 
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CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, Dissenting

17

Copper Co. v. Gillespie, 12 Ariz. 190, 201 (1909). These cases do not require that the interest 

at stake be a property or pecuniary interest.

¶53 To make its nascent view of the special harm inquiry appear more 

established, the majority points to our decision in Sears as an example applying a 

property-based approach. Supra ¶ 15. But such a rule was neither mentioned nor created 

in Sears, and our disposition of the nuisance claim in that case dealt with a combination 

of geographical remoteness (which the Hopi do not have here) and the lack of a harm 

beyond that suffered by the general public. Sears, 192 Ariz. at 69–70 ¶¶ 17–22.

¶54 Moreover, while hornbook law identifies three categories of special harm 

(personal injury, substantial interference with the plaintiff’s use and enjoyment of their 

own land, and pecuniary loss), this classification system is meant to facilitate discussion 

and is not exhaustive. See Prosser & Keeton § 90, at 643, 648–50. This Court long ago 

recognized that “no general rule can be laid down.” Ariz. Copper, 12 Ariz. at 201. All that 

is required, and easily met by the Hopi here, is distinct and tangible harm. Slamming the 

courthouse door shut on those whose claims do not involve their own land or money, or 

personal injury, is not supported by our caselaw and unduly limits the public nuisance 

doctrine.

¶55 Nor is the majority’s new rule supported by the Restatement. Although the 

Restatement remarks on the difficulty of line drawing in the public nuisance context, 

Restatement § 821C cmt. b., it does not include the limitation on actions the majority 

announces today. The majority also misapprehends the significance of comment c to 

Restatement § 821C, which observes that a plaintiff “who traverses a road a dozen times 

a day...nearly always has some special reason to do so, and that reason will almost 

invariably be based on some special interest of [their] own.” Id. cmt. c. The majority 

dismisses the Hopi’s interest as based only on the frequency of use, since both the public 

and other Indian tribes also rely on the “sanctity and purity of the Peaks.” Supra

¶ 33. What the Hopi actually argue, however, is that their frequent use is indicative of 

their special interest - which comports with comment c. That is, that the Hopi so often 

visit and traverse the San Francisco Peaks is evidence of how strong their connection to 

the area is, and how deeply they are injured by Snowbowl’s use of reclaimed water. That 

others may also have interests that are harmed by the use of the wastewater does not 

imply that the Hopi’s interest is no different in kind from that suffered by the general 

public. See Ariz. Copper, 12 Ariz. at 205–06 (recognizing that farmer using irrigated water 

could sue under public nuisance doctrine for defendant’s depositing mining sediment 

that damaged alfalfa farming generally in Upper Gila Valley).

IV.

¶56 Based on the allegations of the complaint, Snowbowl’s use of reclaimed 

wastewater to create artificial snow will allow it to increase the number of skiers it can 
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CHIEF JUSTICE BALES, joined by JUSTICE BOLICK, Dissenting

18

accommodate while imposing a nuisance on the public by polluting the land and waters 

of the San Francisco Peaks. The Hopi allegedly will face compounded harm, as their 

sacred sites, springs, and rituals will be tainted by sewer snow, destroying their religious 

and cultural use and forcing the Hopi to relocate their practices beyond their traditional 

homes yet again. The majority observes that the Hopi have challenged Snowbowl’s 

actions in multiple litigation over many years, but that fact does not suggest that their 

claims here fail, as a matter of law, to state a claim for relief. The Hopi may not be able 

to prove that the use of the wastewater constitutes a nuisance or that they have suffered 

the particular injuries alleged; prior litigation may also have some issue preclusive effect 

here. Thus, holding that the Hopi have stated a claim does not mean they will prevail; if 

they are to lose, however, it should be on the merits and not by implausibly asserting that 

they have alleged an injury no different than that suffered by the general public.

¶57 Ironically, if the Forest Service allowed the Hopi to sell pine boughs, pinon 

nuts, or native tobacco collected from the Peaks (it does not), the majority’s holding 

would allow the Hopi to bring a public nuisance claim based on injury to their pecuniary 

interests. We may live in a material world, but it is a sad comment on our law to suggest 

that other interests - such as religious traditions and practices manifest through millennia 

and recognized by federal law - cannot support a claim of special injury for purposes of 

the public nuisance doctrine. I respectfully dissent.