The Hopi Tribe can proceed with its legal bid to halt snowmaking with reclaimed wastewater on the San Francisco Peaks after the Arizona Supreme Court sided with it Tuesday.
In a procedural victory, the tribe has won the right to proceed with its lawsuit against the city of Flagstaff challenging the city’s 2002 decision to sell reclaimed wastewater to the Arizona Snowbowl ski area, on assertions that the water sale works against the public’s interests.
Judges at the Arizona Court of Appeals last April had overturned a 2011 ruling by former Coconino County Superior Court Judge Joe Lodge.
The city had asked the supreme court to review the appeals court ruling, but the petition was denied Tuesday.
The Appeals Court ruled that the tribe can raise questions about whether making snow causes a public nuisance — or something that “interferes with the comfortable enjoyment of life or property by an entire community or neighborhood or by a considerable number of persons,” in the eyes of the law.
Further, the court found the tribe was actually a little too early in filing its lawsuit against the city of Flagstaff in 2011 (before snowmaking had started in December 2012), and that it was raising new arguments not heard before in other lawsuits intended to bar snowmaking.
“The Hopi Tribe, as well as many others, has always maintained that snowmaking with reclaimed wastewater on the San Francisco Peaks is simply wrong. Using wastewater harms the use and enjoyment of these areas and degrades the pristine nature of the Kachina Peaks Wilderness Area,” said Hopi Chairman LeRoy Shingoitewa last April. “We look forward to presenting our environmental and public health evidence to the court.”
Previous lawsuits raised questions about whether snowmaking would harm Native American religious ceremonies and whether the U.S. Forest Service had adequately weighed the environmental impacts of using reclaimed wastewater on mountains feeding two Arizona watersheds.
This lawsuit seeks to persuade judges that the city of Flagstaff’s 2002 decision to sell reclaimed wastewater to Arizona Snowbowl was not in the public’s best interest.
Lodge ruled in December 2011 that these issues had already been considered and that the tribe was too late in raising them.
“The plaintiff was clearly on notice in March 2002 that the city of Flagstaff intended to contract with Snowbowl to purchase reclaimed wastewater to be used for snowmaking at the Snowbowl ski area,” Lodge wrote in his 2011 ruling.
Separately, the Appeals Court stated that this case shouldn’t have any bearing on another long-running legal case bearing on tribal water rights.