by Timothy Sandefur

The Arizona Supreme Court ruled yesterday morning that the Hopi Tribe could not bring a “public nuisance” lawsuit against the Arizona Snowbowl ski resort for using recycled water to create artificial snow for skiers in the San Francisco Mountains. The tribe argued in their lawsuit that the use of this water—which is safe and nonpolluting but is made out of cleansed wastewater—was a nuisance because the tribe regards the mountains as sacred. The Goldwater Institute filed a brief arguing that the legal concept of “public nuisance” is unconstitutionally vague—no lawyer knows what a “public nuisance” is—and that it would be a dangerous idea to allow people to bring such lawsuits solely on the basis that activity that offends their religious sensibilities is going on.

Yesterday’s 5-2 decision agreed that the lawsuit should be dismissed, although for somewhat different reasons than we recommended. “A particular place’s religious importance is inherently subjective,” wrote the justices, so “courts are ill-equipped to determine whether ‘one form of incidental interference with an individual’s spiritual activities’ should be analyzed differently from that of another.” And the justices held that because the forest where the Snowbowl is located is protected for the benefit of all persons—not just the tribe—it would circumvent the limits on nuisance lawsuits to allow the tribe to assert a special, unique interest here. That special interest requirement is a “gatekeeping function that prevents courts form deciding issues under the guise of public nuisance claims when such issues are best left to public officials,” the court explained—and allowing such religiously based lawsuits would open those gates too widely.

But Chief Justice Scott Bales and Justice Clint Bolick disagreed and thought the case should be allowed to go forward. They pointed out a paradox in the ruling: The court said it would allow public nuisance cases to proceed if they involved “property or pecuniary interests”—just not religious ones. This struck the dissenters as “ironic.” “If the Forest Service allowed the Hopi to sell pine boughs, pinon nuts, or native tobacco collected from the Peaks (it does not), the majority’s holding would allow the Hopi to bring a public nuisance claim based on injury to their pecuniary interests,” they wrote. “We may live in a material world, but it is a sad comment on our law to suggest that other interests—such as religious traditions and practices manifest through millennia and recognized by federal law—cannot support a claim of special injury for purposes of the public nuisance doctrine.”

That’s a legitimate point, but as we argued in our brief, whatever room there may be in nuisance law for religiously motivated claims, they shouldn’t be allowed to work as a “heckler’s veto” over activities that are otherwise lawful. That point was put well by the Pennsylvania Supreme Court in an 1867 case where a group of religious believers sued a railroad for operating on Sundays, because they found it offensive for a business to operate on the Sabbath. “Were we to extend equity jurisdiction to such cases as this,” said that court, “we should soon probably be engaged in hearing cases against…every other case of threatened or alleged infraction of the Sunday law, and soon possess ourselves of a jurisdiction beneath the weight of which no court could stand.”

The problem with “public nuisance” is much deeper even than this, however. The problem is simply that “public nuisance” is too vague a concept to satisfy our conception of legal fairness, at least without certain limiting principles that courts have fashioned from time to time. Future cases must put some limits and definition into that term so that people can know ahead of time whether what they’re doing qualifies or not.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.