Virginia Supreme Court grants Mattaponi appeal in reservoir case

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RICHMOND, Va. - The Mattaponi Indian Tribe may yet get its day in court.

In its continued fight against the proposed construction of a 1,524-acre
reservoir adjacent to the tribe's reservation in King William County, Va.,
the tribe will now present its claims before the Virginia Supreme Court.

On March 11, the state Supreme Court granted the Mattaponi an appeal
against the state Court of Appeals, which said in an August opinion that a
state agency here issued a valid permit for the reservoir and that the
appeals court didn't have jurisdiction to review the tribe's treaty claims,

Although a hearing date hasn't been set, the Mattaponi will argue before
the Supreme Court that the State Water Control Board (SWCB) failed to
consider the tribe's shad hatchery operation, cultural and religious uses
of the Mattaponi River when it issued a permit to the city of Newport News
in 1997. The tribe will also argue that the 1677 Treaty of Middle
Plantation protects the tribe from encroachment on or near its reservation.

"The Supreme Court has agreed that the issues are important enough to be
heard," said David Bailey, Mattaponi Indian Tribe attorney. "It's
significant in the sense that if the Supreme Court had refused to hear
this, the lower courts' decisions would have stood. If that had happened,
the tribe would have had a right to go to federal court."

The tribe filed a lawsuit against the SWCB in 1998 when it first issued a
permit in 1997 to the city of Newport News, which has proposed the
construction of the reservoir. The permit gives the city the right to
withdraw water from the Mattaponi River for the reservoir.

The tribe's lawsuit was dismissed and its appeals denied by the Newport
News Circuit Court and the Virginia Court of Appeals. But the Virginia
Supreme Court in 2001 said the tribe still had standing and sent the
tribe's suit back to the circuit court, said Eric Albert, Mattaponi
attorney with the Georgetown University Law Center's Institute for Public
Representation in Washington, D.C.

In 2003, the tribe's suit again was dismissed by the circuit court judge,
who said the lower court didn't have jurisdiction to enforce the tribe's
treaty rights. The tribe again appealed the case to the Court of Appeals.

In September 2004, the Mattaponi Indians asked the Supreme Court to review
its case after the Court of Appeals in August issued an opinion stating the
SWCB issued a valid permit and didn't have to consider the tribe's uses of
the Mattaponi River or its treaty claims. The Court of Appeals then
transferred questions regarding the tribe's treaty claims to the state
Supreme Court.

"The Supreme Court's decision to hear the tribe's claims means the
enforceability of the tribe's treaty rights is going to be decided by the
highest court in Virginia," Albert said.

According to the Mattaponi Tribe's request to the Supreme Court, the Court
of Appeals erred on five counts when it said:

That the SWCB treated "proposed domestic uses [of the Mattaponi River] as
the highest priority, without first protecting all existing beneficial uses
of the tribe;

"The SWCB is not required to consider the project's impacts on the tribe's
treaty-protected rights when issuing a Virginia Water Protection Permit;

"The tribe's archaeological sites in the Cohoke Mill Creek Valley do not
constitute a 'beneficial use' of water under Virginia code;

"It found that the record, containing no evidence that the board considered
the tribe's religious or gathering uses or the culturally unique aspects of
the tribe's fishing uses, sufficiently demonstrated both consideration and
protection of the tribe's culturally unique existing beneficial uses; and

"It held that it had no jurisdiction to review the trial court's decisions
as to the tribe's treaty-based claims."

Although the state Supreme Court agreed to review the tribe's claims, that
doesn't stop the city of Newport News from moving forward with the
reservoir project, Bailey said.

"The tribe can't get an injunction and the lower courts have held in the
city's favor," Bailey said.

Last year, Newport News received a permit from the Virginia Marine
Resources Commission to place an intake pipe in the Mattaponi River along
With state coastal consistency certification under the federal Coastal Zone
Management Act guidelines for the project. But it still needs to complete
wetlands and historic resources mitigation along with compensation to the
Mattaponi, Upper Mattaponi and Pamunkey Indian tribes before the U.S. Army
Corps of Engineers can grant final approval on the project.