Mattaponi Indian Tribe v. Commonwealth

Present: Carrico, C.J., Lacy, Keenan, Koontz, and Kinser, JJ.,
and Compton, S.J.

MATTAPONI INDIAN TRIBE, ET AL.

v. Record No. 000509

COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL QUALITY,
EX REL. STATE WATER CONTROL
BOARD, ET AL. OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
March 2, 2001
ALLIANCE TO SAVE THE
MATTAPONI, ET AL

v. Record No. 992575

COMMONWEALTH OF VIRGINIA,
EX REL. STATE WATER CONTROL
BOARD, ET AL.

FROM THE COURT OF APPEALS OF VIRGINIA

In this environmental litigation arising under laws dealing

with the quality of state waters, the sole question presented in

these appeals is whether certain protesters to state action have

standing to seek judicial review of such action in a state

court.

In July 1993, the City of Newport News applied to the State

Water Control Board (the Board) for a Virginia Water Protection

Permit (the state permit) for the City's proposed King William

Reservoir public water supply project. This application was

filed pursuant to § 401 of the federal Clean Water Act (the

federal Act), 33 U.S.C. § 1341, and Va. Code § 62.1-44.15:5, a
part of the State Water Control Law, Code §§ 62.1-44.2 through -

44.34:28 (the Virginia Act). The Board issued the state permit

to be effective in December 1997 for a term of ten years.

In February 1998, two proceedings seeking review of the

Board's decision were instituted in the Circuit Court of the

City of Newport News by petitions in chancery filed in

accordance with Rule 2A:4. In one proceeding, the petitioners

included four organizations and two individual riparian owners,

that is, Alliance to Save the Mattaponi; Chesapeake Bay

Foundation, Inc; Mattaponi and Pamunkey Rivers Association;

Sierra Club; Paulette P. Berberich, and Warren Mountcastle

(hereinafter collectively, the Alliance). Respondents in that

proceeding included the Commonwealth of Virginia, ex rel. State

Water Control Board, and the City of Newport News. The other

proceeding was instituted by The Mattaponi Indian Tribe, Carl T.

Lone Eagle Custalow, Assistant Chief (hereinafter, the Tribe),

against the Board and the City.

The circuit court sustained demurrers filed by the Board

and the City, and entered final judgments against the Alliance

and the Tribe dismissing the proceedings for lack of standing to

sue.

Subsequently, the Court of Appeals of Virginia affirmed the

judgments of the circuit court in separate appeals. Alliance to

Save the Mattaponi v. Commonwealth, 30 Va. App. 690, 519 S.E.2d

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413 (1999), and Mattaponi Indian Tribe v. State Water Control

Board, 31 Va. App. 472, 524 S.E.2d 167 (2000). Among other

rulings, the Court of Appeals decided that the Alliance and the

Tribe lacked standing to institute the circuit court

proceedings.

In these cases originating before an administrative agency,

we determined that the decisions of the Court of Appeals involve

matters of significant precedential value. See Code § 17.1-

410(B). Thus, we took jurisdiction of the cases, awarded the

Alliance and the Tribe separate appeals, and consolidated them

for hearing upon the question of standing.

Because the circuit court decided the matters upon

demurrer, we shall recite the facts alleged, and all reasonable

inferences flowing from those facts, as though they are true, in

accordance with settled principles of appellate review. There

is very little difference between the respective allegations of

the Alliance and the Tribe. Actually, the factual allegations

merely serve as a background for resolution of a pure question

of law.

The City's proposed King William Reservoir project is a

regional undertaking sponsored by a coalition of local

governments (York County and the Cities of Williamsburg and

Newport News) that was formed to identify and develop a water

supply to meet the region's long-term public water supply needs.

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The project will also supply water to consumers in the Cities of

Hampton and Poquoson, and the Counties of James City, King

William, and New Kent. The City of Newport News acts for the

coalition because the coalition has no corporate existence or

authority to obtain permits or to build and operate a water

supply system.

The project will include a water intake and pumping station

on the Mattaponi River at Scotland Landing in King William

County. Up to 75 million gallons of water per day (mgd) will be

withdrawn from the River. The project will also involve a

reservoir impoundment created by a new 78-foot-high dam on

Cohoke Mill Creek, a tributary of the Pamunkey River located

between the Pamunkey and Mattaponi Rivers. The dam, 1700 feet

long, will cause the inundation of 437 acres of wetlands, 21

miles of perennial and intermittent streams, and 875 acres of

upland wildlife habitat, and additional alteration of 105 acres

of downstream wetlands — which allegedly will be harmful to fish

and wildlife in the York River watershed. The Tribe asserts

that of the many acres flooded in the Cohoke Mill Creek Valley,

532 acres will encroach upon lands reserved for use by the Tribe

under a 1677 treaty.

Additionally, the project will include construction of two

pipelines — one to convey water from the Mattaponi River to the

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reservoir and another to carry water from the reservoir to the

City's existing Diascund Creek Reservoir in New Kent County.

Because the dam will be constructed by a "discharge of

dredged or fill material" into Cohoke Mill Creek, a construction

permit (federal permit) from the United States Army Corps of

Engineers (Corps) is required under § 404 of the federal Act, 33

U.S.C. § 1344(a). But § 401(a) of the federal Act provides that

federal agencies may not issue permits for activities like this

unless "a certification from the State in which the discharge

originates or will originate" is provided. 33 U.S.C. § 1341(a).

Code § 62.1-44.15:5(A) provides that "issuance of a

Virginia Water Protection Permit shall constitute the

certification required under § 401 of the" federal Act. The

statute further provides that the State Water Control Board

shall issue such a state permit "for an activity requiring § 401

certification if it has determined that the proposed activity is

consistent with the provisions of the [federal Act] and will

protect instream beneficial uses." Code § 62.1-44.15:5(B).

The statute further declares: "The preservation of

instream flows for purposes of the protection of navigation,

maintenance of waste assimilation capacity, the protection of

fish and wildlife resources and habitat, recreation, cultural

and aesthetic values is a beneficial use of Virginia's waters."

Id.

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 During consideration of the City's application, public

hearings were held, environmental impact studies were conducted,

and public comment was received by the Virginia Department of

Environmental Quality and the Board. As we have said, the Board

issued the state permit in December 1997. The permit

authorized, with certain special conditions, the City to

withdraw water from the Mattaponi River for the reservoir and

certified that the proposed reservoir would meet all

requirements of state law. To date, according to the

allegations, the Corps has not issued a federal permit and,

thus, the project has not been finally approved.

In the petitions filed in the circuit court, the Alliance

and the Tribe made a number of allegations to support their

conclusions that the state permit was issued contrary to law.

They asked that the matters be remanded to the Board for

reconsideration of its decision to grant the permit.

Initially, the petitions identified the several parties and

their claimed injury in order to support their standing to sue.

For example, the Alliance to Save the Mattaponi, a 1,100-member

unincorporated association, claims that the permit allowing

construction of the project "will threaten irrevocable harm to

the ecosystems of the Mattaponi River and Cohoke Creek region —

irreplaceable natural resources which its members use for

boating, fishing, recreation and water supply." The Chesapeake

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Bay Foundation, Inc., a Maryland nonprofit corporation and a

"regional conservation organization with approximately 23,000

members residing in Virginia," claims that the project will

"injure its members who regularly use and enjoy the Mattaponi

River, a tributary of the Bay[,] for swimming, boating,

kayaking, canoeing, sport fishing, hunting, beach walking,

snorkeling, and other educational and recreational pursuits."

The other two organizations make similar allegations of injury

resulting from the decision to award the state permit.

Berberich alleges she is a landowner on Cohoke Mill Creek

and will lose 15-20 acres of her property and possibly her home

adjacent to the proposed reservoir. She also will be "harmed by

loss of wildlife habitat on her land and her enjoyment of its

use." Mountcastle, a riparian landowner on the Mattaponi River

adjacent to the location of the water intake pipe, uses the

river for swimming, fishing, hunting, and photography. He

claims "his enjoyment of these uses would be injured by the

location [of] the pipe and the noise from the intake."

The Tribe alleges it is a state-recognized tribe that

maintains a sovereign government occupying Mattaponi Indian Town

located along the Mattaponi River. Among other allegations, the

Tribe claims that the project "directly injures" it "by

sub[s]tantially interfering with the Tribe's capacity to

continue to exist as a tribe as it has from since before

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recorded history, will interfere with the Mattaponi's

traditional way of life, and will prevent the Tribe from

maintaining its cultural and spiritual connections to the

Mattaponi River, Cohoke Mill Creek, together with its adjacent

wetlands and adjacent archaeological sites, and Cohoke Mill

Creek Valley." Further, the Tribe asserts that the "project

intake structure in the Mattaponi River will desecrate and

insult the Mattaponi culture, dishonor the Tribe's ancestors,

jeopardize the Tribe's historic dependence on the river for

hunting and fishing, and impair the river's cultural and

spiritual resources."

All of the foregoing parties participated, either in person

or by comment, in the public comment process related to the

decision to grant the state permit.

In the circuit court petitions, the petitioners assigned

errors allegedly committed by the Board. The Alliance

generally asserts "that the Board refused to consider

substantial evidence in the record relating to cultural and

aesthetic instream beneficial uses; the reasonableness of the

amounts of water withdrawal; and the impact of the water

withdrawal, especially in relation to salinity intrusions and

wetlands losses on water quality and instream beneficial uses.

Thus, the Board erred as a matter of law in failing to follow

8
the requirements of the [federal] Act, the State Water Control

Law, and the regulations promulgated under these statutes."

The Tribe, among other claims, generally asserts that the

Board in issuing the state permit failed to consider and

evaluate certain treaty rights, "cultural values and resources

of the Mattaponi River and Cohoke Mill Creek, together with its

associated wetlands and adjacent archaeological sites, in

violation of Virginia State Water Law."

The Board's and the City's demurrers, insofar as pertinent

to the issue presented in these appeals, relied upon a statute

that is central to our ruling here, that is, Code § 62.1-44.29,

a part of the Virginia Act governing judicial review of a final

decision of the Board to issue a Virginia Water Protection

Permit. ∗

As pertinent, § 62.1-44.29 provides that any owner

aggrieved, or any person who has participated, in person or by

submittal of written comments, in the public comment process

*In one of the cases on appeal here, the Court of Appeals
decided that the foregoing statute, before its amendment in
2000, and other provisions of state law, contained a waiver of
sovereign immunity from suit against the Board arising from
issuance of the state permit. Alliance to Save the Mattaponi,
30 Va. App. at 696-701, 519 S.E.2d at 415-18. That issue was
eliminated from this appeal by denial of the Board's assignment
of cross-error. As amended in 2000, the statute now contains an
express waiver of such immunity from suit against the Board
arising from issuance of such a permit, as the result of
insertion of "62.1-44.15:5" in the first sentence of § 62.l-
44.29. Acts 2000, ch. 1032 at p. 2465; ch. 1054 at p. 2569.

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related to a final decision of the Board to issue a Virginia

Water Protection Permit is entitled to judicial review thereof

if such person meets the standard for obtaining judicial review

of a case or controversy under Article III of the United States

Constitution.

The statute goes on to establish the criteria for standing

that are at the core of these appeals:

"A person shall be deemed to meet such standard if (i)
such person has suffered an actual or imminent injury
which is an invasion of a legally protected interest
and which is concrete and particularized; (ii) such
injury is fairly traceable to the decision of the
Board and not the result of the independent action of
some third party not before the court; and (iii) such
injury will likely be redressed by a favorable
decision by the court."

In its demurrers, the Board, among other contentions,

asserted that the state permit does not, of itself, authorize

the reservoir project, pointing out that the "permitting

authority" for the project belongs to the Corps. According to

the Board, any injury resulting to the Alliance or the Tribe

from the project is as a result of the City's action following a

decision made by the Corps. Therefore, said the Board, the

protestants fail to meet the standing requirements of § 62.1-

44.29.

In its demurrers, the City also attacks the protesters'

standing to sue. Advancing arguments similar to those of the

Board, the City contended the Alliance and the Tribe failed to

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meet statutory criteria (i) (actual or imminent injury) and (ii)

(causation). The City said that any injury suffered is not

caused by the Board's decision to issue the state permit, but

only results from the Corps' decision to award a federal permit.

In sustaining the demurrers, the circuit court ruled

without elaboration that the protesters lacked standing to

maintain the suits.

Affirming the judgment of the circuit court in the Alliance

suit, the Court of Appeals said that "the construction and

operation of the King William Reservoir project is contingent

upon the Corps' issuance of a § 404 permit for the discharge of

fill material into Cohoke Creek." Alliance to Save the

Mattaponi, 30 Va. App. at 706, 519 S.E.2d at 421. Continuing,

the Court of Appeals noted that "[u]nder the applicable

statutory scheme, the Corps has exclusive authority to issue

such a permit upon finding that the project and its intended use

comply with the guidelines implementing the policies of the

[federal Act] and comport with the public interest. The Board's

issuance of a [state permit] does not compel the Corps to issue

a § 404 permit." Id. at 706-07, 519 S.E.2d at 421.

Therefore, the Court ruled, the protesters failed to

satisfy the second prong of the statutory test for standing; it

held that the protesters' "alleged injuries are the result of

the independent action of the Corps upon its authorization of

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the discharge of fill material into Cohoke Creek pursuant to

§ 404 of the [federal Act]." Id. at 707, 519 S.E.2d at 421.

In affirming the circuit court's judgment in the Tribe's

suit, the Court of Appeals adopted its reasoning in Alliance to

Save the Mattaponi, and held that the Tribe also lacked standing

to sue. Mattaponi Indian Tribe, 31 Va. App. at 476-77, 524

S.E.2d at 169-70.

The central question for our decision then becomes: Did

the Court of Appeals err in holding that the protesters' alleged

injuries are not "fairly traceable to the decision of the

Board," but will be "the result of the independent action" of

the Corps, a third party not before the circuit court?

On appeal, the Board and the City contend the Court of

Appeals correctly affirmed the circuit court judgments. The

Board urges, "Manifestly, the petitioners have made no claim of

injury that does not depend upon the award of the federal

permit. The State action does not compel or authorize the

proposed Project; it merely allows the federal permitting

process to proceed." Asserting that any injury does not stem

from the Board, it argues, "The alleged injuries will arise, if

at all, from the Project. The Corps of Engineers authorizes the

Project and the City of Newport News will construct it."

The City urges that while § 401 of the federal Act

"provides that federal permits cannot be issued without State

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certification, . . . it does not require that a federal permit

must be issued if the State does grant certification. Section

401 affords States the opportunity to veto or condition federal

permits, but it gives the States no power to authorize a project

over the objection of the federal permitting agency. The

federal agency must conduct its own review and make its own

decision, pursuant to applicable laws." Continuing, the City

argues that if and when the Corps issues a permit to build the

project, protesters can then litigate the issues raised here,

because the project construction and any resulting injuries will

then be "fairly traceable" to the Corps' decision.

We do not agree with either the Board or the City. We hold

that the Alliance and the Tribe have standing under Code § 62.1-

44.29, and that the Court of Appeals erred in ruling to the

contrary.

The language of Code § 62.1-44.29 tracks the statements by

the United States Supreme Court about standing requirements

imposed by the "case" or "controversy" provisions of Article III

of the U.S. Constitution. The standing doctrine requires (1)

that the plaintiff has suffered an "injury in fact," an invasion

of a judicially cognizable interest that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) that there be a causal connection between the

injury and the conduct complained of, that is, the injury must

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be fairly traceable to the challenged action of the defendant,

and not the result of independent action of some third party not

before the court; and (3) that it be likely, not merely

speculative, the injury will be redressed by the court's

favorable decision. Bennett v. Spear, 520 U.S. 154, 167 (1997).

Pertinent to these appeals, the Supreme Court has said that

the "fairly traceable" prong does not mean that "the defendant's

actions are the very last step in the chain of causation."

While there is no standing if the injury complained of is the

result of "independent" action of some third party not before

the court, that prong does not exclude injury produced by the

effect of action of someone else. Id. at 168-69.

However, "[w]hen the suit is one challenging the legality

of government action . . . , the nature and extent of facts that

must be averred . . . in order to establish standing depends

considerably upon whether the plaintiff is himself an object of

the action . . . at issue. If he is, there is ordinarily little

question that the action . . . has caused him injury, and that a

judgment preventing . . . the action will redress it." Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). But when a

plaintiff's asserted injury arises from allegedly unlawful

regulation of someone else, "much more is needed. . . . Thus,

when the plaintiff is not himself the object of the government

action . . . he challenges, standing is not precluded, but it is

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ordinarily 'substantially more difficult' to establish." Id. at

562.

In the present appeals, we conclude that the injuries

alleged by the Alliance and the Tribe meet the "causation" prong

of the standing criteria, that is, the injuries alleged are

"fairly traceable" to the decision of the Board to award the

state permit, and are not the result of the independent action

of the Corps, a third party not before the circuit court. In

other words, there is a causal connection between the injuries

and the conduct complained of.

The federal Act requires the state § 401 certification to

ensure that the proposed activity will meet state water quality

standards and applicable effluent limitations. 33 U.S.C.

§ 1341(a)(1). The Commonwealth uses the state permit as the

vehicle for the § 401 certification.

The certification is issued if the proposed project "is

consistent with the provisions of the [federal Act] and will

protect instream beneficial uses." Code § 62.1-44.15:5(B).

Beneficial use of Virginia's waters includes the preservation of

instream flows for purposes of the protection of fish and

wildlife resources and habitat, recreation, cultural, and

aesthetic values. Id. The state permit establishes instream

flow conditions, that is, "conditions that limit the volume and

rate at which water may be withdrawn at certain times." 9 VAC

15
25-210-110(1). See Code § 62.1-44.15:5(B). Thus, the Board

alone must insure that the reservoir's operation does not

violate state water quality standards and will protect all

existing beneficial uses of the waters.

The Alliance and the Tribe challenge the state permit,

alleging that the Board disregarded the law and its own rules,

and did not adequately protect the foregoing interests.

Therefore, under the statutory scheme, the state permit,

while a condition precedent to issuance of the federal permit,

has its own existence, is separate from the federal permit, and

can cause injury. The state permit is more than a mere step in

the federal application process; it has a life of its own, being

issued for a ten-year term and, more importantly, providing for

withdrawal of up to 75 mgd from the Mattaponi.

And, by no means are the alleged injuries the result of

independent action of the Corps. The adjective "independent"

means "[n]ot dependent or contingent on something else."

Black's Law Dictionary 774 (7th ed. 1999). Manifestly, the

federal permit is "contingent" upon issuance of the state

permit.

Moreover, no federal court or agency can review the state

permit. U.S. v. Marathon Dev. Corp., 867 F.2d 96, 102 (1st Cir.

1989) (defects in a state's § 401 certification can be redressed

only in state court, rather than federal court); see Am. Rivers,

16
Inc. v. FERC, 129 F.3d 99, 110-11 (2nd Cir. 1997) (same as to

federal agencies). Accordingly, Virginia state courts are the

only forum in which the Alliance and the Tribe can seek redress

of their injuries.

Having determined that the protesters' allegations satisfy

the "causation" prong of the standing statute, we also conclude

that the remaining statutory requirements have been established

by the allegations. The Alliance and the Tribe plainly are

"persons" who participated in the public comment process. See

Code § 62.1-44.3, defining "person."

We reject the Board's contention that the Tribe sues to

represent the interests of other persons and thus lacks standing

to bring suit in a representative capacity. The Tribe is not

claiming in a representative capacity. Rather, it possesses in

its own right justiciable interests in the subject matter of the

litigation, see Board of Supervisors v. Fralin & Waldron, Inc.,

222 Va. 218, 223, 278 S.E.2d 859, 862 (1981), and sues through

its Assistant Chief as authorized by the Tribal Council, the

"governmental body" of the sovereign Tribe. See § 62.1-44.3.

And, it is unnecessary to restate the protesters'

allegations to demonstrate they clearly establish the "injury in

fact" prong of the statute as well as the "redressibility"

prong, compliance with which the City has not challenged.

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 Finally, we have considered all the remaining arguments of

the City and the Board and find them to be without merit.

Consequently, we will reverse the judgments appealed from

and will remand the cases to the Court of Appeals with direction

that they be remanded to the circuit court for trial upon the

merits of the protesters' claims.

Record No. 000509 — Reversed and remanded.
Record No. 992575 — Reversed and remanded.

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