The Mattaponi Indian Tribe v. Com.

• Decision Date: 31 August 2004
• Docket Number: Record No. 2469-03-1.,Record No. 2338-03-1
• Citation: 601 S.E.2d 667,43 Va. App. 690
• Court: Virginia Court of Appeals
• Parties: THE MATTAPONI INDIAN TRIBE, Carl T. Lone Eagle Custalow, Assistant Chief v. COMMONWEALTH of Virginia DEPARTMENT OF ENVIRONMENTAL QUALITY, EX REL. STATE WATER CONTROL BOARD, Robert G. Burnley, Director & Executive Secretary, and City of Newport News. Alliance to Save the Mattaponi, Chesapeake Bay Foundation, Inc., Mattaponi and Pamunkey Rivers Association, Sierra Club, Paulette P. Berberich and Warren Mountcastle v. Commonwealth of Virginia, Department of Environmental Quality, ex rel. State Water Control Board Robert G. Burnley, Director & Executive Secretary, and City of Newport News

601 S.E.2d 667

43 Va. App. 690

THE MATTAPONI INDIAN TRIBE, Carl T. Lone Eagle Custalow, Assistant Chief v. COMMONWEALTH of Virginia DEPARTMENT OF ENVIRONMENTAL QUALITY, EX REL. STATE WATER CONTROL BOARD, Robert G. Burnley, Director & Executive Secretary, and City of Newport News.

Alliance to Save the Mattaponi, Chesapeake Bay Foundation, Inc., Mattaponi and Pamunkey Rivers Association, Sierra Club, Paulette P. Berberich and Warren Mountcastle v. Commonwealth of Virginia, Department of Environmental Quality, ex rel. State Water Control Board Robert G. Burnley, Director & Executive Secretary, and City of Newport News

Record Nos. 2338-03-1, 2469-03-1.

Court of Appeals of Virginia, Chesapeake.

August 31, 2004.

David S. Bailey, Manassas (Curtis Berkey, Washington, DC; Hope M. Babcock; Eric D. Albert; Saikat Chatterjee, Law Student Intern; Charles Beene, Law Student Intern; David S. Bailey, P.L.L.C.; Georgetown University Law Center Institute for Public Representation, on briefs), for appellant The Mattaponi Indian Tribe, Carl T. Lone Eagle Custalow, Assistant Chief.

Deborah M. Murray (Southern Environmental Law Center, on briefs), for appellants Alliance to Save the Mattaponi, Chesapeake Bay Foundation, Inc., Mattaponi and Pamunkey Rivers Association, Sierra Club, Paulette P. Berberich, and Warren Mountcastle.

Rick R. Linker, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Roger L. Chaffe, Senior Assistant Attorney General, on briefs), for appellee Commonwealth of Virginia, Department of Environmental Quality, ex rel., State Water Control Board, Robert G. Burnley, Director & Executive Secretary.

M. Scott Hart, Virginia Beach (James E. Ryan, Jr., George A. Somerville, Richmond; Stuart E. Katz, City Attorney; Allen L. Jackson, Chief Deputy City Attorney; Troutman Sanders, L.L.P., on briefs, Virginia Beach), for appellee City of Newport News.

Present: Chief Judge FITZPATRICK, Judge KELSEY and Retired Judge STEPHENS.¹.

D. ARTHUR KELSEY, Judge.

Newport News requested and received a permit from the State Water Control Board (SWCB) to go forward with the proposed King William Reservoir, a large-scale water supply project that principally relies on freshwater withdrawals from the Mattaponi River. The Mattaponi Indian Tribe and Alliance to Save the Mattaponi, et al. filed separate chancery actions seeking to overturn the permit decision under the Virginia Administrative Process Act (VAPA), Code §§ 2.2-4026, 62.1-44.29. In addition to its VAPA challenge, the Tribe also sought declaratory and injunctive relief alleging a freestanding claim under the 1677 Treaty at Middle Plantation.

After a successful appeal to the Virginia Supreme Court to establish their standing, Mattaponi Indian Tribe v. Commonwealth, 261 Va. 366, 541 S.E.2d 920 (2001), the Tribe and Alliance returned to circuit court to press their claims on the merits. On remand, the circuit court affirmed the SWCB's permit decision under the VAPA and dismissed the non-VAPA treaty claim on the ground that one of the treaty provisions required all treaty disputes to be resolved by the Governor without access to later judicial review.

The Tribe and Alliance again appeal. In response, the Commonwealth moves to dismiss both appeals on sovereign immunity grounds. Rejecting the sovereign immunity defense, we agree that the SWCB's decision should be affirmed under the VAPA. We express no opinion, however, on the circuit court's dismissal of the Tribe's non-VAPA treaty claim. Because our appellate jurisdiction over this case extends only to the VAPA issues, we transfer the non-VAPA portion of this appeal to the Virginia Supreme Court pursuant to Code § 8.01-677.1.

Several localities on Virginia's Lower Peninsula have engaged in nearly three decades of study, administrative proceedings, and litigation to solve what they believe to be an impending water shortage. The proposed King William Reservoir has itself been the subject of litigation in various judicial forums since 1997 and the object of on-going study for almost two decades.

In 1987, three localities (Newport News, Williamsburg, and York County)² created the Regional Raw Water Study Group (the Study Group) to address critical water shortages and to respond to the Virginia Department of Health's order to seek out additional water sources.³ The Study Group retained Malcolm Pimie, Inc. to prepare a raw water study plan to estimate water needs over a fifty-year period from 1990 through 2040.

Projecting a 35 million gallon per day (mgd) deficit by the year 2040, Malcolm Pimie, Inc. published an initial report evaluating thirty-one options to provide the region with additional raw water supplies. Of those alternatives, ten involved long-term options with safe yields of raw water exceeding 20 mgd. Of those ten, five were later deemed to be "not permittable" based on comments or past action by various state and federal agencies.⁴

Of the five remaining long-term options, the Study Group found Lake Gaston to be impracticable based on Virginia Beach's already protracted legal battle to obtain water from that source. A desalinization plant on the York River was also rejected as economically prohibitive. Three remaining alternatives — reservoirs on Black Creek with a pumpover from the Pamunkey River, Ware Creek with a pumpover from the Pamunkey River, and Cohoke Mill Creek (King William Reservoir) with a pumpover from the Mattaponi River — were deemed practical.

Noting host approval issues and problems associated with draining water from the already taxed Pamunkey River, the Study Group turned its focus primarily to the King William Reservoir alternative in conjunction with other short-term projects. In 1993, Newport News, as the lead municipality for the Study Group, applied for a state permit under the State Water Control Law, Code § 62.1-44.2 et seq. and a federal permit under the Clean Water Act, 33 U.S.C. § 1251 et seq. After conducting public hearings, receiving written recommendations from state and federal agencies, reviewing draft and final environmental impact statements, and reviewing public comments, including comments submitted by the Tribe and Alliance, the SWCB in 1997 issued a Virginia Water Protection Permit to Newport News pursuant to Code § 62.1-44.15:5.

During the administrative process, the Tribe argued that the SWCB should interpret and enforce provisions of the 1677 Treaty at Middle Plantation. Entered into shortly after Bacon's Rebellion, the treaty between the "Dread Sovereign" King Charles II and the "Kings and Queens" of several Indian tribes sought to establish "a good Peace with the Neighbour Indians" and the English settlers. One provision of the 1677 treaty states that "no English shall Seat or Plant nearer than Three miles of any Indian Town; and whosoever hath made, or shall make any Incroachment upon their Lands, shall be removed from thence...." Another provision allows "Indians" to hunt, fish, and gather vegetation not "useful to English" on English land provided they obtain a "certificate" from a magistrate. Finally, Article XVIII of the treaty includes what appears to be a form of dispute resolution provision:

That upon any Discord or Breach of Peace happening to arise between any of the Indians in Amity with the English, upon the first appearance and beginning thereof, and before they enter into any open Acts of Hostility or War one against another, they shall repair to His Majesties Governour, by whose Justice and Wisdom it is concluded such Difference shall be made up and decided, and to whose final Determination the said Indians shall submit and conform themselves.

The Tribe first presented its treaty claim to the Virginia Attorney General seeking a response on behalf of the Commonwealth as successor to King Charles II. In reply, the Attorney General opined that the relevant portions of the treaty had been abrogated by implication. The three-mile area around the Mattaponi reservation, the Attorney General observed, had been developed over many years with more than 150 structures "including numerous homes and dependent buildings, several churches, a school, and the King and Queen County courthouse." There were also "some thirteen public highways, ten millponds, several boat landings, many fields under cultivation, cemeteries, a gravel pit, and a landfill situated within the buffer." Determining that the 1677 treaty established the three-mile zone as a buffer to prevent violence between the "English" and the "Indians" and that the provision had been impliedly abrogated by large-scale, non-tribal ownership, the Attorney General concluded that the Tribe had no enforceable legal rights arising out of the treaty that would preclude the proposed water project.

Though aware of the Attorney General's position, the SWCB refused to adjudicate the treaty dispute in the permit action or to enforce any justiciable rights of action allegedly arising out of the treaty. The SWCB, however, did consider evidence of the Tribe's traditions and cultural interests (such as traditional fishing, gathering, religious practices, and archeological sites) and took them into account as decisional factors. The SWCB also considered Alliance's challenge to the project's impact on wetlands, the effect on salinity levels in the Mattaponi River, and the allegedly overstated need for drinking water supply. Finding the evidentiary record sufficiently complete to make a prudent decision, the SWCB issued the permit and attached various conditions to ensure its continuing authority to mitigate any unforeseen environmental harms.

Both the Tribe and Alliance filed separate actions in the Newport News Circuit Court to challenge the SWCB's decision to issue the permit. Alliance limited its suit to an administrative appeal of the SWCB's decision under the VAPA. The Tribe filed a VAPA appeal, but also sought declaratory and injunctive relief asserting separate, non-VAPA claims under the 1677...