WASHINGTON - The Mattaponi Indian Tribe has agreed to dismiss its lawsuit against the city of Newport News, Va., over a reservoir the city plans to construct near the tribe's reservation.
To offset future limitations on the tribe's 1677 Treaty at Middle Plantation, which a Virginia Circuit Court ruled provides the tribe with protections, the Mattaponi has agreed not to bring further action in Virginia courts against the city.
In the joint settlement, Newport News has agreed to pay the Mattaponi tribe $650,000.
''One of the tribe's reasons for not going forward in the suit is the treaty belongs to all of the Virginia tribes, not just the Mattaponi, and they were afraid the lawsuit would affect the treaty adversely,'' said Emma Garrison, Mattaponi attorney with the Georgetown University Law Center's Institute for Public Representation. ''There's always a chance a judge could interpret the treaty, limiting treaty protections. They wanted to make sure the treaty remained protected and intact.''
In February, Virginia Circuit Court Judge Charles Poston set a precedent by ruling that the Winter's Doctrine provided non-federally recognized tribes as well as tribes east of the Mississippi River reserved water rights. The Mattaponi and Newport News were set to go to trial, regarding the tribe's reserved water rights, in June.
''One thing we're pleased to have gained is the precedential ruling on the reserved water rights,'' Garrison said. ''The agreement that we reached preserves the tribe's ability to continue in the lawsuit filed in federal court, challenging the federal permit for the reservoir.''
Randy Hildebrandt, Newport News city manager, said the city is pleased to reach an accommodation with the tribe over the state lawsuit and issues related to the treaty of 1677.
''The settlement agreement also establishes a process for us to resolve future disagreements with aspects of the project that might come up without resorting to litigation,'' Hildebrandt said. ''We would rather invest this money by providing resources for the tribe to pursue their goals as a tribal council, rather than just spending this money on litigation.''
An appreciation exists between the city and the tribe that the two parties have differences over the project, Hildebrandt said.
''But we understand that each party is acting in good faith, trying to accomplish their objectives, and ours is trying to secure water for the community in the future, and theirs is to pursue tribal goals they have and the viability of their tribe in the future,'' Hildebrandt said. ''I don't think there's any ill will between the city and the tribe on any level.''
The settlement agreement explains that Newport News will notify the tribe about any changes that would alter existing reservoir permits. The Mattaponi also retain the right to participate in Virginia administrative proceedings that relate to the reservoir, according to the agreement.
''If Newport News were to go back and revamp the project, double the size of the reservoir or increase the water withdrawal amount, then this agreement doesn't prevent the Mattaponi from challenging the project in court,'' Garrison said. ''The tribe still is concerned about the impact the reservoir will have on the Mattaponi River and the tribe's fishing, cultural and religious practices. That's why we've retained the right to challenge the federal permit in federal court.''
The Mattaponi joined several environmental groups in November in a lawsuit filed in U.S. District Court for the District of Columbia against the Clear Water Act Section 404 permit, also referred to as the federal wetlands permit, issued by the U.S. Army Corps of Engineers. This permit ultimately granted approval of the reservoir project.
''This lawsuit was originally filed by several environmental groups in July last year,'' Garrison said. ''We moved to intervene in November.''
The federal lawsuit involves an agency record review against the Army Corps and the Environmental Protection Agency.
''The Mattaponi tribe still opposes the reservoir project,'' Garrison said. ''The tribe has had multiple opportunities to educate the public and Virginia's governmental agencies about the Virginia Indian tribes. This is another aspect along with the ruling on the Winter's Doctrine that the tribe is proud to have accomplished.''