RICHMOND, Va. - A decision by the Court of Appeals of Virginia in a few
weeks could add yet another twist in the fate of the King William
A three-member panel of judges May 25 gave each side 20 minutes to explain
why the Mattaponi Indian Tribe along with a group of environmental
organizations should or shouldn't be allowed to assist in an appeal against
a state agency that halted construction plans of a 1,524-acre reservoir.
The Mattaponi's attorney argued that the Virginia Marine Resources
Commission's denial of a necessary permit to the city of Newport News one
year ago protected the tribe's interests. But when the city of Newport News
filed an appeal last year against the VMRC for rejecting the city's request
for a formal hearing, its action once again placed the tribe's reservation,
livelihood and culture in jeopardy, said Eric Albert, Mattaponi attorney.
"The tribe's very existence is at stake," Albert said.
To protect its interests, the tribe filed a motion to intervene last year,
but Judge Marc Jacobson of the Norfolk Circuit Court denied that request,
in January. Along with that denial, Jacobson sent the city's request for a
formal hearing back to the VMRC, ordering the agency to grant the city a
With the hearing having been set for Aug. 11 - 12, Judge D. Arthur Kelsey
of the Court of Appeals of Virginia asked Albert why the tribe's
intervention was necessary, especially if its participation wouldn't have
permitted the tribe to preclude any decision of the VMRC.
Albert argued, however, that the U.S. Supreme Court allows for third party
intervention when its rights are "inextricably" affected. And the tribe's
rights are affected, he said. A 1677 treaty protects the tribe from
encroachment on or near its reservation. The tribe also depends on the
river for its livelihood and cultural existence.
"This issue isn't moot," Albert said.
But with the issue being sent back to the VMRC for a new hearing and a
hearing date having been set, the issue in appeals court wasn't necessary,
said Chief Judge Johanna L. Fitzpatrick, who presided over the hearing.
Not so, Albert argued. The VMRC's original decision in May 2003 to deny the
city a permit to place an intake pipe in the Mattaponi River protected the
tribe's rights. But with a new hearing being set, Albert said the city has
the opportunity to correct mistakes and change plans.
What remains at stake is the construction of a 1,524-acre reservoir,
proposed by the city of Newport News, which would pump 75 million gallons
of water a day from the Mattaponi River to the structure adjacent to the
tribe's reservation. This river supports a shad fishery that has been the
livelihood of the Mattaponi tribe for centuries, and the pumping could
endanger the hatchery, the salinity of the river, the shad spawning and the
tribe's cultural practices.
For the public and environmentalists, the destruction of wetlands for the
reservoir and the potential loss of the endangered shad in the Mattaponi
River stand as other factors why the reservoir shouldn't be built. But the
State Attorney General's Office argued that these factors don't give the
Mattaponi or environmental groups the right to work alongside the VMRC in
"This case is gone; this case is done," said John Byrum of the State
Attorney General's Office.
Still, Judge Kelsey asked, "The point is do they have a legally viable
right to upset the train when it is going down the track?"
But for a settlement in the appeal, Judge Fitzpatrick added that an
intervention order would be a temporary decree for the Mattaponi in the
In support of Jacobson's January decision, the State Attorney General's
Office maintains that state statutes allow circuit courts to remand agency
decisions, Byrum said. The state also maintains that the Mattaponi and the
environmentalists can pursue action in court, instead of seeking to
participate alongside the VMRC in defending itself against Newport News'
appeal, he said.
Byrum then called the Mattaponi's actions the equivalent of getting on the
train without a ticket and ending up with greater rights than the original
parties involved. George A Somerville, attorney with Troutman Sanders LLP,
representing Newport News, said the Mattaponi's rights can't be
"adjudicated" by the VMRC. He argued that if the issue were about a VMRC
decision for granting the city a permit, the Mattaponi "wouldn't be parties
The Mattaponi also asked the VMRC if it could assist the agency during the
hearing. However, the VMRC has taken no action on the tribe's request.
The U.S. Army Corps of Engineers' Norfolk District Office recommended
denial of the reservoir project in 2001. When former Virginia Gov. James
Gilmore asked the office to change its decision, the project was forwarded
to the North Atlantic Division Office in New York. A year later, the
district office's decision was reversed, giving the city another chance.