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Snowmaking

Snowmaking at Arizona Snowbowl.

Oral arguments in the Hopi Tribe’s lawsuit against Arizona Snowbowl’s snowmaking practices were heard by the Arizona Supreme Court’s panel of seven justices on Tuesday, Sept. 4.

In February, the Arizona Court of Appeals revived the question of whether Snowbowl's snowmaking with reclaimed wastewater causes “special injury” to Hopi religious and cultural sites. The case was originally filed in the Coconino County Superior Court for the issue rooted on the San Francisco Peaks just outside of Flagstaff’s city limits. This is the third case the Hopi Tribe has brought against the ski resort.

In his opening statement, John Egbert, counsel for Snowbowl, alleged that the appellate court mischaracterized the issue in its ruling and ended up creating a new category for special injury. He said that the appellate court’s ruling allows any interference of a location believed to be of special importance to any person would constitute a special injury.

“It undermines the very purposes of the special harm requirement,” Egbert said.

Justice Clint Bolick quickly disagreed with the idea that the appellate court meant to create a new category. He pointed out that the precedent in this case illustrates that all matters of special harm should be dealt with on a “case-by-case” basis, as opposed to by separate categories.

Egbert went on to say that if the Supreme Court ruled in favor of the tribe in this case, there would essentially be a slippery slope leading to anyone being able to claim special harm on public land.

“If we recognize [the tribe’s claim] as a special harm, there’s no ending point to that,” Egbert said. “Because others also can articulate some sort of harm to their use of the land as well.”

To help understand the issue at hand, Chief Justice Scott Bales used a metaphor from a past case to explain the way he understood special interest, which must exist to find a special harm and injury.

“The person who traverses the road a dozen times a day nearly always has a special reason to do so, and invariably that would be based in a special interest of its own,” Bales said.

Both Bolick and Bales also brought up that federal statutes instruct the United States Forest Service to give access to Native American tribes to gather items on their land for traditional and cultural reasons, illustrating the special interest the Hopi Tribe has to the land.

The Snowbowl’s counsel did not deny that special interest. Instead, they responded by saying that access had not been officially denied by the Forest Service. Bales then offered an idea in rebuttal — in tune with the Court of Appeal’s ruling — that the snowmaking practices could have effectively blocked the Hopi from their cultural and religious experience.

The justices did not exclusively reserve their questioning for Snowbowl’s representatives. They repeatedly brought the question before the Hopi’s counsel, Michael Goodstein: if they ruled in the Hopi Tribe's favor, where can the justices draw the line on special injury?

“The Court of Appeals said there’s special injury here ... based on interference with a place of special importance,” Bales said. “That language seems very broad to me. Comparing the impact on the members of the Hopi Tribe to the public in general, I can imagine how many people in the public in general regard the San Francisco Peaks as a place of special importance.”

The justices created many examples of situations where a person besides the Hopi Tribe might consider the peaks to be a place of special importance.

Justice John Pelander offered an example of a hiking club that had been around the peaks for generations. Justice Ann Scott Timmer created the possibility of a person who deeply cares about the Peaks and scattered their loved one’s ashes on the Peaks.

But Goodstein doubled down and focused on the type of use.

“We focus specifically on the use. A special use is protected under Arizona law,” Goodstein said. “It’s recognized as a special injury if it’s a special use.”

Pelander took a particularly strong stance against the Hopi’s claim, focusing on the almost 40 years of history on the issue.

“I’m having a hard time seeing how your claim is anything other than kind of a repackaged First Amendment, free exercise [claim],” Pelander said.

According to the oral argument case summary, the first legal challenge to Snowbowl’s activity started in 1981, when the Hopi Tribe and several other plaintiffs sued the Forest Service for allowing Snowbowl upgrades. The lawsuit was filed as a violation of the Free Exercise Clause of the First Amendment, but was found not to burden any religious practices.

In 2002, several tribes challenged Flagstaff’s decision to sell reclaimed wastewater to Snowbowl. The Ninth Circuit eventually affirmed a decision resolving the claims.

This most recent filing started in 2010, where the tribe alleged a claim of public nuisance. This claim was eventually dismissed by Coconino County Court Superior Court Judge Mark Moran. On appeal, the Court of Appeals ruled that the use of reclaimed wastewater caused the tribe a special injury.

Now that opening arguments have concluded, the case will now be deliberated by the justices and is pending a final ruling.

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Scott Buffon can be reached at sbuffon@azdailysun.com, on Twitter @scottbuffon or by phone at (928) 556-2250.

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Senior Reporter - Cops, Environment

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