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New judge denies Mattaponi Tribe right to fight city lawsuit over reservoir

NORFOLK, Va. - Pocahontas' people won't give up when it comes to fighting construction of a reservoir next to their reservation - the massive project would flood sacred and religious grounds and violate a 1677 treaty that protects the tribe.

The Mattaponi Indian Tribe, one of only two reservation tribes left in Virginia, received yet another blow to its attempts to halt the construction of a 1,524-acre reservoir. Judge Mark Jacobson of the Norfolk Circuit Court, who was assigned to the reservoir cases once Newport News Circuit Court judges recused themselves, denied the tribe's request Sept. 25 to assist the Virginia Marine Resources Commission in a lawsuit filed by the city of Newport News.

"What the tribe is going to do is seek a direct appeal of the denial of intervention," said David Bailey, the Mattaponi Indian Tribe's attorney. "The tribe's rights are going to be trampled on."

Bailey, on behalf of the Mattaponi, asked the Norfolk judge to grant a stay on the case until a decision is made in the tribe's intervention appeal. The court has until Oct. 16 to rule on the tribe's request for a stay. If no decision is made, the request for a stay is automatically denied, Bailey said.

Both the Mattaponi Indian Tribe and several environmental groups filed separate intervention motions in June once the city of Newport News filed suit against the VMRC. The city's actions resulted from the state agency's decision in May to deny Newport News a water intake pipe permit to be placed in the Mattaponi River. Newport News attorneys, however, had opposed the intervention motions.

"We asked the judge to deny intervention," said M. Scott Hart, attorney with Troutman Sanders LLP, who is representing Newport News. "We also oppose the tribe's request for a stay."

Hart said the city doesn't want to see any further delays in the case.

The judge's decision to deny the intervention motions, Hart said, is consistent with Jacobson's decision in an earlier but unrelated VMRC permit case in which motions for intervention had been filed.

The city was also pleased with Judge Robert Curran's decision in September to uphold the State Water Control Board's 1997 approval of a water withdrawal permit to the city.

"We think his decision was correct, of course," Hart said.

With the intervention motions denied, a hearing date for Newport News' appeal with VMRC can be set. So far, no date has been set, according to Norfolk Circuit Court where Jacobson serves as judge and where the case most likely will be heard.

Among the twists and turns the fight for and against the reservoir has taken, the latest denial to the tribe stands as one of many disappointments.

Newport News argues the King William County property between the Mattaponi and Pamunkey Indian reservations is the only location available for a reservoir and the water for the peninsula is necessary. But the VMRC voted against approving the city's request for the intake pipe permit. Its main reason for the denial rested with the fact that the intake pipe would be in the heart of the endangered shad fish's spawning beds in the Mattaponi River.

At the VMRC May hearing, the Mattaponi Indians argued that by reducing the number of shad, it would reduce the tribe's livelihood. Both the Mattaponi and Pamunkey Indian tribes operate shad hatcheries to replenish both the Mattaponi and Pamunkey rivers of the shad the tribes catch each year.

Several other problems with the reservoir that opponents have made include the fact that the massive structure stands to flood 1,524 acres of land where the Mattaponi and the Pamunkey Indian tribes have historic and sacred sites. The city, in testing the area, admits it has found Colonial and American Indian historic sites. Also, in order for the city of Newport News to build the reservoir, it would have to withdraw water from the Mattaponi River, which could increase salinity levels of the tidal river and kill not only the shad but other fish as well. Both the U.S. Army Corps of Engineers' Norfolk District office, which first recommended denial of the project, and the VMRC staff noted this in their reports.

The tribe, which lost its first appeal against the Virginia State Water Control Board for issuing Newport News a permit to withdraw water from the Mattaponi River, lost its second appeal of that permit last month. That permit, first granted to the city in 1997, was also needed before the U.S. Army Corps of Engineers can grant final approval of the project.

Because the Virginia Attorney General's Office represented the State Water Control Board against the tribe in the appeal, the Mattaponi has said the Attorney General's Office can't "aggressively" represent the VMRC in a lawsuit filed by Newport News.

Others have argued the same thing. In July, a state delegate from Gloucester asked Attorney General Jerry Kilgore to recuse himself from the case because Kilgore had asked the VMRC to grant Newport News a formal hearing in June. The VMRC elected not to offer the formal hearing, and Newport News then sued.

Once the hearing is set, Kilgore's office will represent the VMRC against Newport News, and this is where some critics, including the Mattaponi, say the Attorney General's Office can't be fair. It can't defend state agencies supporting the reservoir project and then fight for state agencies that don't support the reservoir project, Bailey said.

"What worries the tribe the most is Kilgore signed a letter to the VMRC urging [the commission] to grant a formal hearing to the city of Newport News," Bailey said. "Now, the attorney general has to defend the VMRC decision not to file a formal hearing. This public letter was signed by the attorney general himself. I think it seriously compromises the attorney general's ability to defend the VMRC."

But a spokeswoman for the Attorney General's Office said this isn't the case.

"The court has ruled before that these groups do not have legal standing in these types of cases, and we certainly encourage them and want them to participate in the process and will seek ways for them to do so," said spokeswoman, Carrie Cantrell with the State Attorney General's Office. "It is our obligation and our duty to defend these agencies and the Attorney General expects the attorneys to vigorously defend the case."

In 2001, the Army Corps' Norfolk, Va., district office, recommended denial of the reservoir project. But the project was then moved to the Army Corps' North Atlantic Division in New York. This office, in 2002, gave Newport News another chance to obtain necessary permits for the reservoir's approval.