Sacred Sites and Ski Resorts: The Hopi Tribe and Reclaimed Wastewater

What constitutes a “public nuisance”? And does an injury rooted in religious belief override general public concerns? Those questions arose in a recent Arizona lawsuit, Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, when the Hopi tribe sued a ski resort to challenge the resort’s water reclamation practices. Snowbowl operated a ski resort on the San Francisco Peaks near the city of Flagstaff. For several years, the resort had purchased the city’s reclaimed wastewater to make snow. The Hopi tribe asserts that the Peaks are sacred ground, holding special religious significance for tribe members. The tribe challenged the resort’s use of reclaimed wastewater, claiming among other things that the wastewater contaminated plants and water used for ceremonial purposes. A federal lawsuit under the Religious Freedom Restoration Act failed; the tribe then filed a state action on the grounds that the resort’s snowmaking practices were a public nuisance that would cause unreasonable harm to the Hopi.

Under Arizona law, a public nuisance interferes with the rights of the general public. However, Arizona also permits public nuisance suits if a private party suffers a “special” injury that goes above and beyond the harm suffered by the general public. In this case, the Hopi claimed that not only did the practice of using wastewater to make snow harm the environment in general, it also impeded the tribe’s ability to practice its chosen religion. The Arizona Supreme Court found that, in prior cases, special injuries were almost always pecuniary; that is, because of the defendants’ interference, the plaintiffs lost money or were unable to use property that they owned. In this case, the majority ruled that because the tribe did not own the Peaks, the Hopi had not suffered a pecuniary loss. Further, the mountain range’s religious significance was too tenuous and subjective to support a finding of special injury. The court suggested that it would be hard to determine what a sacred site truly meant to members of a religion and worried that any member of the public could bring a suit based on offenses to his or her religious faith. According to the court, “environmental damage to public land with religious, cultural, or emotional significance to the plaintiff is not special injury for public nuisance purposes.” The court seemed to value financial concerns over the tribe’s religious practice. While the court’s analysis seems linked to a specific place and a specific set of beliefs, it raises questions about how religious belief is measured and how (and whose) religious freedom is protected.

Kathleen Davies is a Staff Writer for GetLegal.com. She is a graduate of the University of Michigan Law School and has practiced law and taught legal writing and advocacy.