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Mattaponi await judge's decision on water rights claim

WASHINGTON - The Mattaponi Indian Tribe is awaiting a judge's decision on its claim of water rights based on a U.S. Supreme Court decision made nearly a century ago.

At a December hearing, a Virginia Circuit Court judge ruled on several motions filed by the city of Newport News in an attempt to dismiss the tribe's claims - one being tribal water rights protected through the ''Winter's Doctrine'' - in a lawsuit the tribe filed against the city.

The Winter's Doctrine came into existence when the U.S. Supreme Court ruled an Indian reservation could protect future water rights based on when the tribe's reservation was established. Mattaponi attorneys have said the doctrine gives the tribe first rights to water in the Mattaponi River, and protects it from the city's plans to pump water to a reservoir proposed near the tribe's reservation.

However, Newport News attorneys moved to have the claim dismissed, said Emma Garrison, Mattaponi attorney with Georgetown University Law Center's Institute for Public Representation. However, Judge Charles Poston, a Norfolk Circuit Court judge presiding over the case in Newport News Circuit Court, hasn't made a ruling yet, she said.

Since the doctrine's establishment almost 100 years ago, it has applied, so far, to tribes in the West.

''Newport News raised the points that the tribe wasn't federally recognized and the tribe is east of the Mississippi River,'' Garrison said.

Poston, however, dismissed several motions filed in September by various parties involved in the lawsuit the tribe has pursued against the cities of Newport News and Williamsburg as well as the counties of King William, York, James City and New Kent. A trial in the case is scheduled in late June.

For about 20 years, the tribe has fought the construction of a reservoir in King William County by Newport News, which would draw water from the Mattaponi River to fill its reservoir. The water would serve residents living on the Peninsula, a section of the Hampton Roads metropolitan area.

But the Mattaponi Tribe has operated a shad hatchery on the Mattaponi River for centuries, and each year the tribe replenishes the river with the now-endangered fish. In addition to its economic ties to the river, the tribe uses the river for cultural and religious practices.

The Mattaponi and environmental organizations also have argued that withdrawal of water from the river will harm the spawning of shad, disrupt wetlands and take away from the tribe's uses of the river.

At the December hearing, the judge also denied Newport News' motion to dismiss the tribe's treaty claims that the reservoir would interfere with the tribe's fishing rights, which include cultural and religious practices as well as the tribe's shad hatchery operation, Garrison said.

King William County had filed a motion that the county should be removed from the lawsuit because it has sovereign immunity, but the judge denied the county's motion.

The tribe's struggle against the King William Reservoir continues to provide disappointment and surprises. In September, the tribe found some relief when the State Water Control Board, a Virginia regulatory agency, denied Newport News an extension on a necessary reservoir permit that was scheduled to expire in 2007.

But in early December, the SWCB reversed its decision after Newport News requested a formal hearing, granting the city an extension on the permit.

''We're disappointed,'' Garrison said. ''I'm not sure there's a legal basis for the [State Water Control Board] to reverse their decision the way they did.''

Garrison said the SWCB is not allowed to grant extensions to projects when the projects have changed as significantly as the King William reservoir project has.

In a Dec. 4 letter sent to the SWCB opposing the agency's decision to reconsider its decision on the permit extension denial, Garrison wrote that the SWCB's decision to reconsider a prior decision ''is inconsistent with the Virginia Administrative Code.''

The agency provided Newport News with two ''avenues of relief,'' which included ''a judicial appeal to the circuit court or a formal hearing before the Board,'' Garrison wrote. ''Granting an extension is not appropriate here because the scope and nature of the activity has changed significantly since the permit was originally issued.''

One of the changes Garrison noted was the size of the project, which has increased from the 1,526 acres initially proposed.

The SWCB wrote the Mattaponi attorneys, stating that the board had consulted the Virginia Attorney General's Office, which indicated the board was within its authority to reconsider its decision.

''Procedurally, there's not a mechanism in the Virginia Administrative Code to allow them to just reverse their decision like that,'' Garrison said. ''This time, Newport News asked the board to reconsider its decision based on the existing record, rather than taking evidence, which is what happens at a formal hearing.''