NORFOLK, Va. - The Mattaponi Indian Tribe may get the chance after all to help defend a state agency that ended plans in May for construction of a 1,524-acre reservoir next to its reservation.
In a short hearing in Norfolk Circuit Court Oct. 27, Judge Mark Jacobson said he would allow the tribe and the Southern Environmental Law Center, counsel for environmental groups also opposed to the reservoir construction, the right to submit arguments, outlining their concerns with the reservoir.
"I'm going to have to decide if I'm going to accept their arguments," Jacobson said during the hearing.
The judge also denied the Mattaponi's request for a stay in the appeal filed by the city of Newport News against the Virginia Marine Resources Commission, which had denied the city a permit and a formal hearing afterwards. However, Jacobson may allow the tribe to speak Dec. 8, which is when he'll decide on the first count of the city's appeal.
"We felt it was important to consider the stay," said David Bailey, Mattaponi attorney.
In Newport News' appeal, the city argues that it should have been allowed a formal "evidentiary" hearing by the VMRC, and the VMRC made the wrong decision when it denied the city the right to a formal hearing, said M. Scott Hart, attorney with Troutman Sanders LLP, representing the city in the case.
"The city wants the formal hearing," Hart said.
Newport News sought a formal hearing after the VMRC denied the city a permit to place a water intake pipe in the Mattaponi River. This would have allowed the city to pump water from the river to the reservoir.
But the VMRC staff had recommended denial of the permit because of evidence that showed the pipe would be located in the heart of spawning beds of the endangered shad fish.
Bailey has filed a motion to dismiss the city's request for a formal hearing in its appeal.
"We did this because the statute provides for the granting or denial of a formal hearing," Bailey said. "In other words, the action the VMRC made is discretionary."
Bailey said the Mattaponi also disagrees with the city's second count to its appeal.
"The state Attorney General's Office alleges that the city failed to properly plead or state a violation of law in its appeal," he said. "The VMRC has a duty to act in the best interest of the public trust and Virginia Constitution. The state also says the city did not allege in its petition that the VMRC violated the public trust."
Instead, the Attorney General's Office, which is defending the VMRC, is asking that the suit should be dismissed.
For the Mattaponi Indians, loss of shad spawning beds would harm the tribe's shad fish hatchery operated on the Mattaponi River. Each year for centuries, the Mattaponi have practiced replenishing the river of shad that the tribe catches. The reservoir, if constructed, would flood sacred and religious sites of both the Mattaponi and Pamunkey Indians.
In October, Jacobson denied the tribe's motion for intervention, which would have allowed the tribe to assist the VMRC in its case with the city of Newport News. When the judge denied the request, the Mattaponi then requested a stay in the city's case.
Newport News continues to fight to construct the reservoir even though the Army Corps' Norfolk, Va., district office, recommended denial of the project in 2001. The project was then moved to the Army Corps' North Atlantic Division in New York. This office, in 2002, allowed the city to revise its plan and seek the necessary permits for the reservoir's approval.