By Timothy Sandefur
May 30, 2018
What is a “public nuisance”? The answer is simple: Nobody knows. The standard legal textbook on tort law says that the term “has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition.” Legal experts have described it as a “wilderness,” an “impenetrable jungle,” a “mystery,” and even a “legal garbage can.” The California Supreme Court once said it “does not have a fixed content,” and U.S. Supreme Court Justice Harry Blackmun said that courts have “searche[d] in vain” for “anything resembling a principle in the common law of nuisance.”
But that doesn’t stop lawyers from using the theory of “public nuisance” to sue people. On the contrary, because the idea is so vaguely defined, it’s possible to file such lawsuits over all sorts of things, and creative lawyers have done so: In California—which has a particularly bad lawsuit-abuse problem—creative lawyers have sued gun makers for making guns, on the theory that it contributes to violence and that the state then has to pay for emergency services when people get shot. They’ve also sued paint manufacturers for making and selling lead paint—even though lead paint was legal at the time—on the theory that houses that were painted with lead paint and now have fallen into disrepair are dangerous to the environment. Some people have even tried suing McDonald’s for selling fast food on the theory that it’s a “public nuisance” that makes people fat.
These kinds of lawsuits raise prices for everyone—because the lawyers have to be paid for their work—and make it risky to do business. Who wants to run a company when you could be sued at any time simply because people dislike what you’re doing?
That’s why it’s significant that the Arizona Supreme Court announced recently that it would be hearing arguments in a public nuisance case brought by the Hopi Tribe against the Snowbowl, a company in Flagstaff that runs a ski slope. The Snowbowl sometimes makes artificial snow, and it uses recycled water to do so—which is legal and safe; it’s the same water that’s used to water plants in school playgrounds and public parks. But the Hopi Tribe argues that the mountain is sacred, and that the artificial snow creates a spiritual impurity that infringes on their religious practices.
There’s no denying that the Hopi Tribe’s religious concerns are real ones deserving of consideration, but they can’t justify a court shutting down the legal activities of the Snowbowl. As we argue in a friend-of-the-court brief that we filed yesterday, the “public nuisance” theory is just too vague to satisfy the requirements of due process of law—which require that people be able to tell ahead of time what is and is not legal. And legal activities, such as the Snowbowl’s manufactured snow, can’t be a nuisance simply because they offend a person’s religious sensibilities. Courts said long ago that, for example, running businesses on Sundays could not constitute a public nuisance, even though it interfered with the religious beliefs of strict Sabbatarians, because otherwise, courts would be buried under lawsuits “beneath the weight of which no court could stand.” Lawful activities that aren’t unreasonable—such as loud noises or offensive smells—can’t qualify as nuisances just because those activities cause another to take extra steps to ensure spiritual purity.
You can read the brief here.
Timothy Sandefur is the vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.