PHOENIX -- Attorneys for Snowbowl are warning the Arizona Supreme Court that if they don't overturn a ruling allowing the Hopi Tribe to sue over artificial snow they are opening the door to a flood of litigation.
In legal filings with the state's high court, the lawyers contend the Court of Appeals effectively created a new law -- one they claim has no precedent -- by permitting the tribe to claim it is suffering a "special harm'' from allowing the use of treated effluent on the site owned by the U.S. Forest Service. That February ruling, unless overturned, gives the tribe a chance to make their case to a jury.
But John Egbert, the lead attorney for the resort, wants the justices to preclude that option, clearing what could be the last of a series of legal hurdles for the snowmaking.
The tribe has tried to block both expansion of the resort and the artificial snow for years, making various arguments on how the use of treated effluent would violate their religious freedom because it would impair their ability to pray and conduct ceremonies on the San Francisco Peaks outside of Flagstaff. There also were environmental claims.
All have been rejected by federal courts.
What that left the tribe is its bid to claim the artificial snow is a "public nuisance.''
A trial judge threw out that case, saying only those who have suffered an injury different than that of the general public have a right to sue.
But Judge Kenton Jones, writing for the Court of Appeals, said that is precisely what the tribe is claiming.
For example, he said, one allegation is that the artificial snow will end up in springs and water bodies the Hopi tribe used for ceremonial and utilitarian purposes.
There also is a claim that the treated effluent will affect the purity of ceremonial objects collected by tribal members during pilgrimages. Tribal attorneys said these objects "cannot be used for ceremonial purposes if they become tainted or impure.''
All that, Jones said, creates a "special injury different in kind ... from that of the public.'' And he said that is enough to take the case to trial.
Egbert said that ruling, if allowed to stand, could open the floodgates for all sorts of individuals and organizations to file their own public nuisance lawsuits.
"Jut as the Hopi Tribe claims the San Francisco Peaks as having a special importance to its members, other tribes make similar claims, and, for a variety of reasons, so do environmentalists, outdoor enthusiasts and others,'' he wrote.
Egbert said that is why nuisance claims have been limited to situations where the general public is being harmed, versus the appellate court's conclusion that a "special harm'' to any group entitles it to seek legal relief.
"That new category potentially applies to a broad spectrum of individuals who may consider a place to have 'special importance,' and whose interests in the place will often be inconsistent and incompatible,'' the attorney wrote. "It is simply not possible to fully accommodate all of these competing interests.''
And Egbert said that is why balancing of various competing interests "is more appropriately handled through the procedures of the legislative and executive branches'' versus the courts "which is, by design, the least representative branch.''
In fact, he argued, that already has happened, saying public authorities already considered and approved the use of artificial snow for skiing on the government's own land.
"The U.S. Forest Service already considered the public rights at issue and weighed and balanced all the competing interests of the disparate stakeholders, including the Hopi Tribe and others who view the Peaks as having 'special importance,' '' Egbert said. The final result, he said, was government approval to use artificial snow "on a small portion of the government's land for the public benefit.''
It isn't just Snowbowl that wants the appellate court decision reversed. So does Flagstaff, which has the contract with the company to sell its treated effluent.
In his own legal filings with the Supreme Court, John Klecan, representing the city, said any "injury'' caused by the use of treated effluent on the mountain is not unique to the tribe and its members but is "common to all of the public who frequent or utilize the area for many different purposes.'' And that, he said, makes it improper to allow the tribe to claim it has a special interest allowing it to pursue a nuisance claim.
"While members of the public may have different reasons for wanting to use or visit public land, their motivation or reasons do not change the fact that the common injury to all is environmental damage,'' Klecan wrote.
The justices have not yet set a date to consider whether they even want to review the appellate court decision, much less overturn it.
Two employees of Hilltop Townhomes were greeted with a bloody scene and a deceased student on March 21 when they entered an apartment at the complex as part of a regular inspection.
Northern Arizona University Police are still listing the case as an undetermined death and have assured students that there is no threat to them.
According to a report from the Northern Arizona University Police Department, the two employees told officers that they opened the room to one of the apartments and found a marijuana bong and some blood on the kitchen counter. They found a trail of blood leading to the bedrooms upstairs. Inside one bedroom they found a bloody comforter. In one bathroom they found the bathtub with about 2 to 3 inches of bloody water in it.
They followed the trail to another bedroom. When the two employees opened the door they found the nude body of Joseph Bock, 21. One of the employees called out to Bock but didn’t receive a response. They described Bock’s skin as discolored and a foul odor in the room. Thinking that Bock might be deceased they called NAU PD, exited the apartment and locked the door.
In his report, an officer later described Bock as lying face down and partially on his side. Another officer described Bock has having injuries to his stomach. Officers described finding a significant amount of blood on various surfaces in the bathroom and that the toilet lid had been ripped off and was on the floor in front of the toilet.
According to the report, multiple officers noted blood throughout the apartment but there were no signs of forced entry or blood outside of the apartment. The apartment was locked from the inside and the last key fob record showed that Bock was the last person to enter the apartment around 5:30 p.m. on March 20. The next person to key into the apartment were the two employees doing the inspection at around 1 p.m. March 21.
Officers spoke with a third Hilltop Townhome employee who said he had talked with Bock between 8 and 8:30 p.m. on March 20 about a package that Bock was expecting.
Officers also spoke with a person who worked with Bock at rehabilitation facility. She said she had received information from two other people she knew from working at the rehabilitation facility that Bock may have been partying and using drugs with another person around 1 a.m. on March 21.
The woman said that Bock had never exhibited any suicidal tendencies or attempted to hurt himself around her. However, he had exhibited aggression toward others in the past.
According to the NAU PD report, Bock had allegedly threatened a previous roommate with a knife in February. Bock was moved from that apartment in order to avoid further conflict and into the one in which he was found.
Officers have requested the cellphone logs of at least seven people whose names were redacted. They collected clothing from two other people.
Officers have also attempted to speak with another Hilltop Townhome resident but the student’s parents at first declined officer’s requests. It is unclear from the report if officers were eventually successful in talking to the student.
AUSTIN, Texas (AP) — Arizona and Texas announced Friday that they were preparing to deploy National Guard members to the U.S.-Mexico border in response to President Donald Trump's call for more border security.
Arizona Gov. Doug Ducey said about 150 Guard members would deploy next week. And the Texas Military Department, the umbrella agency over the Texas National Guard branches, said on its Twitter account that it would hold a Friday night news conference on its preparations, though further details were not immediately available.
Trump told reporters Thursday that he wants to send between 2,000 and 4,000 National Guard members to the border to help fight illegal immigration and drug trafficking.
New Mexico Gov. Susana Martinez's office said Friday that it had not yet deployed any Guard members. The office of California Gov. Jerry Brown did not respond to questions about whether it would deploy troops.
That would be lower than the roughly 6,000 National Guard members that former President George W. Bush sent in 2006 during another border security operation, though more than the 1,200 Guard members President Barack Obama sent in 2010.
A spokesman for Ducey said Friday that the deployment would be funded under a federal law called Title 32. Under that law, the National Guard remains under the command and control of each state's governor, but receives federal pay and benefits. The deployments under Bush and Obama also occurred under Title 32.
Trump signed a proclamation Wednesday blaming "the lawlessness that continues at our southern border." Earlier, he said he wanted to use the military to secure the southern border until his proposed border wall was built. Congress has largely refused to fund Trump's full request for the wall.
After plunging at the start of his presidency, the numbers of migrants apprehended at the southwest border have started to rise in line with historical trends. The Border Patrol said it caught around 50,000 people in March, more than three times the number in March 2017. That's erased a decline for which Trump repeatedly took credit. Border apprehensions still remain well below the numbers when Bush and Obama deployed the Guard to the border.
News reports of a caravan of Central American migrants passing through southern Mexico also sparked angry tweets from the president. The caravan of largely Central American migrants never intended to reach the U.S. border, according to organizer Irineo Mujica. But Trump has repeatedly cited it as an example of what he called America's weak immigration laws.
Department of Homeland Security officials have said Guard members could support Border Patrol agents and other law enforcement agencies. DHS Secretary Kirstjen Nielsen said this week that guard members could "help look at the technology, the surveillance," and that the department might ask for fleet mechanics. Federal law restricts the military from carrying out law enforcement duties.
From 2006 to 2008, the Guard fixed vehicles, maintained roads, repaired fences and performed ground surveillance. Its second mission in 2010 and 2011 involved more aerial surveillance and intelligence work.
Former Texas Gov. Rick Perry, now Trump's energy secretary, also sent about 1,000 Guard members to the border in 2014 in response to a surge in the number of unaccompanied immigrant children crossing the Rio Grande, the river that separates the U.S. and Mexico in the state.
About 100 Guardsmen remain deployed as part of that existing state mission.