The City of Flagstaff contracted to sell reclaimed wastewater to a ski resort for making artificial snow. Various tribes, environmental groups, and other parties unsuccessfully challenged the snowmaking under several federal laws including the Religious Freedom Restoration Act. The Hopi Tribe later filed this action on state-law grounds including public nuisance. The resort is located on the San Francisco Peaks, and the Tribe alleged that the use of reclaimed wastewater interferes with its use of the area for religious and ceremonial purposes.
Public nuisance claims require the plaintiff to allege a “special injury” that is “different in kind or quality from that suffered by the public in common.” Defendants moved to dismiss, arguing that the Tribe’s alleged damages do not constitute a special injury. The trial court granted the motion on that basis, but the Court of Appeals reversed, holding that “interference with a place of special importance can cause special injury.” The Arizona Supreme Court granted review on whether the Tribe sufficiently alleged special injury.
In a 5-2 decision, the Court held that as a matter of law the Tribe’s allegations did not meet the special injury requirement for a public nuisance claim. Suffering the same kind of harm or interference to a greater extent or degree does not create a special injury. The general public’s desire to enjoy pristine natural surroundings is not transformed into a special injury because the Tribe’s motivation to visit the place is religious rather than environmental or recreational. Instead the Tribe’s alleged injury is different in degree, not in kind.
The two-part rationale for the special injury requirement is: (1) to prevent multiple actions by every member of the public over a common wrong; and (2) to allow public officials to handle harms affecting all members of the public, thus preserving the separation of powers and judicial restraint. The majority opinion held that special injuries are limited to cases where the plaintiff has a property or pecuniary interest at stake. Allowing a new category of claims based on “place of special importance” does not comport with the rationales for the special injury requirement. Religious importance is inherently subjective, and the injury here should be addressed by public officials or legislative acts and not by a unilateral religious veto in the courts.
The dissent contended that this creates a new rule that unduly limits public nuisance claims. Previous Arizona cases and other authorities have not limited special injuries to those involving pecuniary or property damages. The dissent believes that the Tribe’s allegations should have survived the motion to dismiss. The Tribe’s millennia of religious practice in the area and its unique rights under federal statutes to access and use the area for those purposes should support a claim of special injury different in kind than that suffered by the public generally.
Justice Pelander authored the majority opinion, joined by Vice Chief Justice Brutinel and Justices Timmer, Gould, and Lopez. Chief Justice Bales authored the dissent, joined by Justice Bolick.
Posted by: Brian K. Mosley