The Hopi Tribe may have hit on a successful strategy to oppose snowmaking with reclaimed sewage on the sacred San Francisco Peaks, near Flagstaff, Arizona.
The Hopi Tribe had originally filed suit in Coconino County Superior Court, in Flagstaff, in February of 2011. Among other claims, they said Flagstaff’s contract to sell reclaimed water to Arizona Snowbowl, the ski resort, for snowmaking equates to a “public nuisance,” meaning it significantly imperils the right of members of the public to enjoy life or property – in this case, the unspoiled San Francisco Peaks.
The trial court denied the tribe’s right to sue on the nuisance claim by saying, first, that the claim had already been raised in previous failed court challenges against Snowbowl by the Navajo and other tribes, and secondly that they filed suit after a statute of limitations had passed.
But on April 25, the Arizona Court of Appeals reversed the lower court ruling on both of those counts. The Court of Appeals didn’t make a ruling on whether the city’s contract to sell the water actually constitutes a public nuisance; it just gave the green light for the tribe to take its claim back to Coconino County Superior Court.
“We’ll get our day in court now,” said an excited Hopi Chairman, LeRoy Shingoitewa, on April 29. The tribe was denied the right to sue on two other claims for unrelated reasons, decisions which the appeals court has upheld. (Related story: Hopi Tribe Issues Latest Challenge for the San Francisco Peaks)
The Court of Appeals ruling is significant because it suggests that courts haven’t yet considered the effects of the snowmaking on the environment or the public interest.
“The core issues raised by the tribe’s public nuisance claim – environmental harms expected and benefits associated with the city’s sale of reclaimed wastewater for use in snowmaking at Snowbowl … were not actually litigated or decided in the Navajo Nation litigation,” the Court of Appeals opinion states. “As described above, the federal NEPA claims, for example, did not directly address the environmental costs or economic benefits associated with the sale and use of reclaimed wastewater on the Peaks; the court only decided that the Forest Service had complied with its obligations under the Federal Administrative Procedure Act to consider the underlying environmental issues.”
The Hopi Tribe has actually filed two lawsuits in the past several years related to Arizona Snowbowl’s snowmaking. Last spring, the tribe filed a lawsuit compelling the U.S. Forest Service and the U.S. Fish and Wildlife Service to take a closer look at the effects of the sprayed wastewater on an endangered, high-altitude plant. The agencies did re-open their consultations, last fall.
“We’ve withdrawn [that lawsuit] right now pending the remainder of the study, and more than likely it will come up again,” Shingoitewa said.