NEWPORT NEWS, Va. - The Mattaponi Indian Tribe will file another appeal, now that a Virginia judge dismissed its 1998 lawsuit against a state agency for issuing a permit that would allow construction of a 1,500-acre reservoir next to the tribe's reservation.
Judge Robert Curran of the Newport News Circuit Court mailed his June 28 opinion, which supports the Virginia State Water Control Board's 1997 issuance of a permit to the city of Newport News.
"The court held that the state agency's actions were supported by the record and entitled to deference," said David Bailey, the Virginia attorney for the Mattaponi Indians. "The judge further found no violations of law and dismissed the case from the docket. The tribe is expected to appeal."
Curran's opinion also dismissed a lawsuit filed by several environmental groups represented by the Southern Environmental Law Center.
"The tribe was disappointed because it has always believed and continues to believe that both the administrative record and the pertinent law make it clear that the State Water Control Board's decision was arbitrary and capricious," said Michael Beach, attorney with the Institute for Public Representation at Georgetown University and Mattaponi attorney.
The bulk of the Mattaponi's case rested with the interpretation of a 1677 treaty, which protects the tribe from movement on or near its reservation. But in March, Curran ruled that the treaty was between the tribe and the state and not reviewable by state court, Bailey said.
"In other words, he ruled the tribe had no right to judicial review," Bailey said. "That's kind of earthshaking in the world of Indian law. Because they have a treaty, but it can't be enforced."
The Mattaponi's appeal when it is filed will involve both the treaty and permit issues, Bailey said.
A few days before Curran issued his opinion, Newport News filed a lawsuit against the Virginia Marine Resource Commission for denying the city a formal hearing and a necessary permit to build the reservoir. The tribe plans to intervene in Newport News' appeal of the VMRC's decision, Bailey said.