NEWPORT NEWS, Va. - The Mattaponi Indian Tribe has made yet another move to fight a lawsuit seeking to revive construction plans for a 1,500-acre reservoir that would harm the tribe's reservation, shad fishery and way of life.
On July 18 in Newport News Circuit Court, the Mattaponi Tribal Council filed a motion to intervene in a suit filed by Newport News against the Virginia Marine Resources Commission for denying the city a permit to place an intake pipe in the Mattaponi River in King William County.
"The tribal council has asked the court to permit them to participate as a direct party in the appeal in support of the VMRC's decision," said David Bailey, Virginia attorney for the Mattaponi Tribe.
Newport News filed its appeal in June after the VMRC denied the city a formal hearing as well as a permit, which would have allowed placement of an intake pipe in the Mattaponi River to pump water to the proposed reservoir.
So far, no court date has been set in the city's appeal and no judge has been appointed to hear the case, according to Wilford Kale, VMRC spokesperson and senior staff advisor.
"The only thing I know is that the judge has to be appointed," Kale said. "All the judges in Newport News Circuit Court recused themselves."
The VMRC in May denied the city a permit based on research showing that the location of the intake pipe would be in the heart of the spawning beds of the shad, an endangered fish. The intake pipe would allow the city to withdraw up to 75 million gallons of water a day from the river to be pumped to the reservoir.
The tribe, which operates a hatchery to support itself, has argued for years that the proposed reservoir and pumping of water each day from the Mattaponi River would harm the tribe's shad hatchery, its culture and it religious practices on the river.
The tribe filed a lawsuit in 1998 against the Virginia Water Control Board for granting the city a necessary permit for the reservoir. Although a judge dismissed this suit last month, the tribe intends to file an appeal in August. The tribe has argued that a 1677 treaty protects it from unwanted encroachment on or near its reservation, but the judge has ruled that its treaty isn't reviewable by state court.
"Their treaty rights are adversely affected, the operation of the shad hatchery could be adversely affected, and their use of the Mattaponi River is directly affected," Bailey said.
The final approval of the King William reservoir rests with the U.S. Army Corps of Engineers. However, without the VMRC permit, one of several Newport News must have, the Army Corps of Engineers can't act on the project.
In 2001, the Army Corps' Norfolk, Va., district office, recommended denial of the reservoir project. If the city acquires necessary permits, however, the final approval now would come from the Army Corps' North Atlantic Division in New York.
The New York office received the project for review after Virginia's former governor, James Gilmore, disagreed with the Norfolk office's opinion. In October 2002, the New York office gave the city one more chance to obtain necessary permits for the project.