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Judge makes no decision in appeal of Newport News reservoir issue

NORFOLK, Va. - Plans for the construction of a 1,524-acre reservoir adjacent to the Mattaponi Indian Reservation remain in limbo - at least until after the New Year.

A Norfolk Circuit Court judge made no decision, Dec. 8, in an appeal filed by the city of Newport News, who proposed the reservoir, against a state agency that halted the project earlier this year. Judge Mark Jacobson also denied the Mattaponi Indian Tribe and the Southern Environmental Law Center attorneys the right to speak at the hearing.

"I think they expect us to go away," said David Bailey, Virginia attorney representing the Mattaponi Indian Tribe.

Newport News attorneys maintain that the Virginia Marine Resources Commission, which denied the city a necessary permit for the project in May this year, owes the city a formal hearing.

In a two-count appeal filed in June, the city argues it is entitled to a formal hearing and has asked the courts to overturn the VMRC's decision not to grant the city one.

But the Virginia Attorney General's Office, which is representing the VMRC, maintains that the city isn't entitled to this formal hearing because a formal hearing is "discretionary," according to state statutes, and that the VMRC acted within its authority in not granting the hearing. It has also asked the judge to dismiss the appeal.

With the twists and turns the fight over the reservoir has taken, Bailey said it is possible the case could continue for another year.

Jacobson will make a decision in January on count one of the appeal, the request for a formal hearing. The judge denied in September the tribe's motion for intervention, which would have allowed the tribe to assist the VMRC in its case with the city of Newport News. But in October, he allowed the tribe to file briefs outlining its concerns. At that hearing, he also said he might allow the tribe to speak at the December hearing - an action he later denied.

"If he denies the city's request for a formal hearing, then he'll move to count two," Bailey said. "This is a review of the agency's decision already made on the record."

A crucial issue for the Mattaponi tribe rests with the loss of shad spawning beds that would harm the tribe's shad fish hatchery operated on the Mattaponi River. Each year for centuries, the Mattaponi has practiced replenishing the river of shad that the tribe catches. Also, the reservoir, if constructed, would flood sacred and religious sites of both the Mattaponi and Pamunkey Indians, and the Mattaponi tribe's plans to expand its reservation would also be affected.

Newport News, which has spent millions of dollars on the proposed reservoir, wants to construct the reservoir, even though the Army Corps' Norfolk, Va., district office, recommended denial of the project in 2001. When the project was forwarded to the Army Corps' North Atlantic Division in New York, the division office in 2002 allowed the city to revise its plan and seek the necessary permits for the reservoir's approval.