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High court rules against Hopi Tribe in snowmaking challenge

November 29, 2018

FILE - In this file photo taken on March 3, 2014, snowmaking supervisor Carl McKenna explains the features of a snowmaking machine at the Arizona Snowbowl near Flagstaff, Ariz. The Arizona Supreme Court is scheduled to rule on the Hopi Tribe's challenge to snowmaking at a northern Arizona ski resort. The decision is expected mid-morning Thursday, Nov. 29, 2018. The high court has been considering whether a lower court created a new category of special harm for public nuisance claims. (Jake Bacon/Arizona Daily Sun via AP, File)

FLAGSTAFF, Ariz. (AP) — The Hopi Tribe has lost a legal battle against snowmaking on a northern Arizona mountain where tribal members made frequent pilgrimages to gather plants and water for ceremonial use long before a ski resort existed.

The Arizona Supreme Court ruled Thursday the tribe’s emotional, spiritual and cultural connection to the San Francisco Peaks doesn’t establish a special category of harm under a claim that artificial snow made with reclaimed wastewater causes a public nuisance.

The split decision overturns one earlier this year by the state Court of Appeals, which revived the lawsuit the Hopi Tribe filed against the city of Flagstaff in 2011. The Arizona Snowbowl later was wrapped into the case.

The appellate court said the tribe had distinguished its interest in the area from the interests of the general public, such as skiers, hikers and other recreationists. But the high court said it wouldn’t stray from case law that ties special injury to property or monetary interests.

Justice John Pelander, writing for the majority, said the tribe’s alleged injury is different in degree, not in kind.

“At its core, the special injury requirement serves as a gatekeeping function that prevents courts from deciding issues under the guise of public nuisance claims when such issues are best left to public officials, a pivotal principle in federal cases grappling with religious freedom challenges to public land uses,” Pelander wrote.

The city of Flagstaff declined comment on the ruling. An attorney for Snowbowl, John J. Egbert, said the ski resort is pleased and looks forward to continuing to serve its customers and the community.

The resort outside Flagstaff began spraying artificial snow on its slopes in 2012 because natural snow wasn’t always plentiful for skiing and snowboarding. It operates on 777 acres under a permit from the U.S. Forest Service.

The Hopis aren’t denied access to the area.

The Hopi Tribe argued in the latest challenge that objects Hopis gather could become contaminated with chemicals in the wastewater and could no longer be used in ceremonies. Wastewater also could blow on shrines, springs and other sacred areas outside the boundaries of the ski resort, negatively impacting them in an immeasurable way, Hopi Chairman Tim Nuvangyaoma said.

Hopi tradition holds that Hart Prairie at the base of the ski resort is the spiritual birthing place of the Kachina, which brings the world water, snow and life.

The high court’s decision means the Hopi won’t have a chance to try to prove its claims at the trial court.

“I’m disappointed and I’m frustrated,” said Leigh Kuwanwisiwma, who retired as the Hopi’s longtime cultural preservation director last year and was heavily involved in the case. “But I think indigenous people like Hopi people are always going to be at a legal disadvantage when they put something like that in a white man’s court.”

At least 13 tribes consider the mountain on public land sacred. The courts previously have ruled that the tribes’ religious rights wouldn’t be violated by snowmaking and that using treated wastewater to make snow wouldn’t make anyone sick.

Still, tribal members protest every year on Snowbowl’s opening day.

In a dissenting opinion, Chief Justice Scott Bales said the court has long recognized that special injury can extend beyond property and monetary rights. He said it’s ironic that if the Hopi sold pine boughs or pinon nuts gathered from the mountain, the majority would allow a special injury claim.

“The general public does not have millennia of religious practice in the area that will be covered in a fine film of reclaim sewage,” Bales wrote. “Nor does the general public have rights of access and use, rooted in Hopi tradition and cultural practices, recognized by federal statutes.”

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