Mattaponi continue the fight against proposed reservoir

NEWPORT NEWS, Va. - The Mattaponi Indian Tribe, whose members are descendants of Pocahontas, continues to fight the proposed construction of a 1,500-acre reservoir adjacent to their reservation.

The tribe on Sept. 9, appealed a Newport News Circuit Court June decision upholding a state agency's approval of a permit to pump water from the Mattaponi River to the reservoir once it is constructed in King William County.

The permit, approved by the Virginia State Water Control Board in 1997, is one of several the city of Newport News needs in order to receive final approval from the U.S. Army Corps of Engineers to build the reservoir.

"The judge held at that time that the State Water Control Board had acted properly," said David Bailey, the Mattaponi Tribe's attorney. "He also said the tribe has no judicial rights of its 1677 treaty."

The tribe had sought protection from a treaty that protected it from encroachment. The reservoir, if constructed, would be located between both the Mattaponi and the Pamunkey Indian reservations.

But the tribe isn't the only entity to appeal actions made in the reservoir project. In June, Newport News appealed the Virginia Marine Resource Commission's decision to deny the city a formal hearing. This request came after the VMRC voted to deny Newport News a permit, which would allow the city to place an intake pipe in the Mattaponi River to pump water from the river to the reservoir.

The date for the city's appeal has been on hold, pending a Newport News Circuit Court decision on whether the Mattaponi Indian Tribe and several environmental groups will be allowed to intervene on behalf of the VMRC in the city's appeal, Bailey said.

"If the judge denies the tribe the right to intervene in the appeal Newport News has filed with the VMRC, the judge will be denying the tribe once again an opportunity to protect its interests."

State Attorney General Jerry W. Kilgore, who will represent the VMRC in the appeal, has been criticized for advising the VMRC in June to give Newport News the formal hearing it wanted.

Del. Harvey B. Morgan, R-Gloucester, in a July 29 letter asked Kilgore to recuse himself from representing the VMRC and to appoint outside counsel to represent the Commission.

"It appears to me that this position [to grant the formal hearing] is wholly at odds with the Commission's decision, making it difficult, if not impossible, for the Commonwealth and the Commission to receive the full and best representation in this case from the Office of the Attorney General," Morgan wrote.

Tim Murtaugh, spokesman for the State Attorney General's Office, said there is no reason why the Attorney General's Office shouldn't defend the VMRC.

"The lawyers in this office heed the client's wishes," Murtaugh said. "Clients do not always take our advice. That doesn't mean we cannot go into court and forcefully represent them. We have a duty to uphold the Commonwealth.

No matter what the issue is, we have a duty to uphold and defend the law."

The Mattaponi Tribe has argued that the Attorney General's Office doesn't represent the tribe's interests, and that the Attorney General's Office in the past has made decisions adverse to the tribe's interests, Bailey said.

The dam proposed for construction for the reservoir would be built on Cohoke Creek, a tributary, Bailey said. The city would fill Cohoke Creek Dam with pumped water from the Mattaponi River, and the water would then be pumped to Newport News, Bailey said. At present, there are restrictions from the State Water Control Board when water can be withdrawn from the Mattaponi River. Because the Mattaponi River is tidal, scientists with the Corps of Engineers have noted concerns with the potential for increased salinity, if water is withdrawn from the river.

"If the salt-water ledge moves up the river, they can't withdraw water because there will be too much salinity in the river," Bailey said.

Another factor of concern is the endangered shad, a fish the Mattaponi and Pamunkey Indians rely on for sustenance. Newport News in a final proposal to the VMRC in May agreed to halt water withdrawal from the river during shad spawning season. The VMRC still denied the city's request for a permit.

If the reservoir is constructed, the tribe's treaty rights are adversely affected, the operation of the Mattaponi and Pamunkey Indian tribes' shad hatcheries could be adversely affected, and the Mattaponi's use of the Mattaponi River is directly affected, Bailey said.

Although the final approval of the King William reservoir rests with the Army Corps of Engineers, it can't act on the project if Newport News has no permit from the VMRC.

In 2001, the Army Corps' Norfolk, Va., district office, recommended denial of the reservoir project. But the project approval was moved to the Army Corps' North Atlantic Division in New York once Virginia's former governor, James Gilmore, disagreed with the Norfolk office's opinion. The New York office in October 2002 gave Newport News another chance to obtain necessary permits for the reservoir's approval.