COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia
THE MATTAPONI INDIAN TRIBE AND CARL T.
LONE EAGLE CUSTALOW, ASSISTANT CHIEF
OPINION BY
v. Record No. 2963-98-1 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL QUALITY,
ex rel. STATE WATER CONTROL BOARD,
AND THE CITY OF NEWPORT NEWS
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
David S. Bailey (David S. Bailey, L.L.C.;
Hope M. Babcock; Jeffrey C. Nelson; Sandra
Franco, Law Student Intern; Stephanie Tai,
Law Student Intern; Institute for Public
Representation, Georgetown University Law
Center, on briefs), for appellants.
Deborah Love Feild, Assistant Attorney
General (Mark L. Earley, Attorney General;
Roger L. Chaffe, Senior Assistant Attorney
General, on brief), for appellee Commonwealth
of Virginia, Department of Environmental
Quality, ex rel. State Water Control Board.
George A. Somerville (James E. Ryan, Jr.;
Matthew M. Farley; M. Scott Hart; Stuart E.
Katz, City Attorney; Allen L. Jackson, Deputy
City Attorney; Mays & Valentine, L.L.P., on
brief), for appellee City of Newport News.
On December 16, 1997, the State Water Control Board
("Board") issued Virginia Water Protection Permit number 93-0902
to the City of Newport News ("City"), as authorized by Code
§ 62.1-44.15:5. The Mattaponi Indian Tribe, Carl T. Lone Eagle
Custalow, Assistant Chief, filed a notice of appeal to the
Circuit Court of the City of Newport News on January 14, 1998.
The Commonwealth and the City demurred to the Tribe's appeal,
and on August 7, 1998, the circuit court sustained the demurrers
on various grounds. A final order dismissing the Tribe's case
was entered on November 30, 1998. The Tribe then noted its
appeal to this Court.
The Tribe and Chief Custalow ("appellants") raise three
issues in this appeal. They are 1) whether appellants have
standing to challenge the proposed King William Reservoir water
supply project ("Project") under Code § 62.1-44.29; 2) whether
appellants sufficiently pled that the Commonwealth breached the
1677 Treaty at Middle Plantation ("Treaty"); and 3) whether
appellants sufficiently pled that the Commonwealth has violated
Title VI of the federal Civil Rights Act.
BACKGROUND FACTS
In July, 1993, the City applied to the Board for a Virginia
Water Protection Permit ("VWPP") for its Project. The King
William Reservoir project is a regional undertaking sponsored by a
coalition of local governments, including Newport News,
Williamsburg and York County, for the purpose of identifying and
developing a regional water supply to meet projected needs through
the year 2040. Once completed, the reservoir will comprise a
1,526 acre impoundment created by a new dam across Cohoke Creek, a
small tributary of the Pamunkey River located between the Pamunkey
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and Mattaponi Rivers in King William County. The project would
also entail the construction of a water intake and pumping station
to withdraw water from the nearby Mattaponi River and convey it to
the reservoir.
Because the dam will be constructed by "the discharge of
dredged or fill material" into Cohoke Creek, § 404 of the federal
Clean Water Act ("CWA") requires the City, as the lead agency of
the coalition governments, to obtain a construction permit from
the United States Army Corps of Engineers ("Corps"). See 33
U.S.C. § 1344(a),(d). Under § 401(a) of the CWA, the Corps may
not issue a permit for an activity resulting in a discharge into
wetlands unless the state where the discharge takes place
certifies that the discharge will comply with "applicable
provisions" of the CWA or until the state waives such
certification. See 33 U.S.C. § 1341(a)(1).
The Corps may not issue a permit "if certification has been
denied by the [s]tate. . . ." Id. Furthermore, under § 401(d) of
the CWA, "any effluent limitations and other limitations, and
monitoring requirements" that are included in the state's
certification "shall become a condition on any Federal license or
permit. . . ." 33 U.S.C. § 1341(d).
In Virginia, Code § 62.1-44.15(5) of the State Water Control
Law ("SWCL") authorizes the Board to issue certificates for the
alteration of the physical, chemical or biological properties of
state waters. The SWCL further designates the VWPP as "the
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certification required under Section 401" of the CWA. Code
§ 62.1-44.15:5(A). "The Board shall issue a [VWPP] for an
activity requiring § 401 certification if it has determined that
the proposed activity is consistent with the provisions of the
[CWA] and will protect instream beneficial uses." Code
§ 62.1-44.15:5(B). "Conditions contained in a [VWPP] may include,
but are not limited to, the volume of water which may be withdrawn
as a part of the permitted activity." Id.
On December 16, 1997, the Board issued a VWPP to the City.
The VWPP contained a number of "Special Conditions" establishing
various limitations and monitoring requirements for the Project.
Thereafter, the City, appellants, and various other petitioners
appealed the Board's decision. Both the Board and the City
demurred to appellants' petition for appeal on grounds
substantially similar to those raised before this Court. At the
parties' request, the circuit court heard oral argument on both
demurrers at the same time, sustaining the demurrers on August 7,
1998 in a document entitled, "Case Under Advisement." Without
elaborating upon the grounds for its decision, the court wrote
that appellants "lack standing to maintain [their] suit." The
court entered a final order dismissing appellants' appeal on
September 11, 1998. This appeal followed.
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ANALYSIS
I. STANDING UNDER CODE § 62.1-44.29
On demurrer, the court need only determine the legal
sufficiency of the pleadings and take as true all of the facts
alleged by the plaintiff. See Runion v. Helvestine, 256 Va. 1,
7, 501 S.E.2d 411, 415 (1998); W. S. Carnes, Inc. v. Bd. of
Supervisors of Chesterfield County, 252 Va. 377, 384, 478 S.E.2d
295, 300 (1996).
Appellants' claim under Code § 62.1-44.29 is governed by
our recent decision in Alliance to Save the Mattaponi, et al. v.
Commonwealth of Virginia, ex rel. State Water Control Board, et
al., 30 Va. App. 690, 519 S.E.2d 413 (1999). 1 We held in
Alliance that the appellants there lacked standing to appeal the
Board's issuance of the VWPP because they failed to satisfy the
second prong of the statutory test for Article III standing,
viz. an injury to a legally protected interest that is fairly
traceable to the defendant and not the result of the independent
action of some third party not before the court. 2 See id. at
1
In addition to arguing that they have standing pursuant to
Code § 62.1-44.29, appellants also contend that they have
standing under the Virginia Administrative Process Act ("VAPA").
As we noted in Alliance to Save the Mattaponi, 30 Va. App. at 701
n.7, 519 S.E.2d at 418 n.7, however, the SWCL provides expressly
for judicial review of the agency action at issue, and therefore
we need not look to the provisions of VAPA in order to determine
whether appellants have standing to challenge the Project.
Consequently, that question will not be addressed here.
2
In Alliance, we identified the statute's requirement of
harm as 1) an actual or imminent injury which is an invasion of
a legally protected interest and which is concrete and
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706-07, 519 S.E.2d at 421. As in Alliance, appellants here
cannot establish standing to challenge the Project "because the
injuries alleged in their petition for appeal will result from
the independent action of the [Army Corps of Engineers], a third
party not before the circuit court." Id. at 702, 519 S.E.2d at
419. We find the trial court did not err in sustaining the
demurrer on this ground.
II. CLAIM CONCERNING THE TREATY AT MIDDLE PLANTATION
Appellants allege that the Treaty creates a duty on the
Commonwealth to protect the Tribe from any encroachments within
three miles of the Mattaponi Reservation. Appellants further
allege that by the Board's issuance of the VWPP, the
Commonwealth has breached this duty.
The Treaty language cited by appellants in support of their
claim reads as follows:
For prevention of . . . Injuries and evil
consequences . . . for time to come; It is
hereby Concluded and Established, That no
English shall Seat or Plant nearer then
[sic] Three miles of any Indian Town; and
whosoever hath made, or shall make any
Incroachment upon their Land shall be
removed from thence, and proceeded against
as by the former Peace made, when the
Honourable Colonel Francis Morison was
Governour . . . .
Treaty at Middle Plantation, art. IV (1677), in 4 Early American
Indian Documents: Treaties and Laws, 1607-1789, 82-87 (Alden T.
particularized; 2) an injury fairly traceable to the defendant;
and 3) an injury likely to be redressed by a favorable decision
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Vaughan and W. Stith Robinson, eds. 1983). Appellants claim
that flooding associated with the Project will inundate a
portion of the land described in Article IV and that as a result
harm will accrue to their interest in the land established in
the Treaty. They equate flooding with "mak[ing] any
Incroachment" as stipulated in Article IV. Appellees counter
that the land described in Article IV was never conveyed to the
Tribe and instead constituted a buffer zone between the formerly
warring colonists and the Tribe.
We decide this case without resolving the question of
whether the Tribe was granted ownership rights to the property
in question. As we held in Alliance to Save the Mattaponi, the
issuance of the VWPP by the Board does not constitute an
imminent threat or danger to anyone, because, unless the Corps
issues a § 404 permit, the Project will never proceed. See
Alliance, 30 Va. App. at 701, 519 S.E.2d at 419. Thus, if any
harm shall accrue to lands in which appellants assert an
interest, such harm will arise, if at all, from the acts of a
third party at some future time. See id. Therefore, we find
that appellants have failed to allege an actual violation of
property rights, even assuming the claimed rights exist under
the Treaty. Accordingly we affirm the trial court's order
sustaining appellees' demurrer on this ground.
III. APPELLANTS' CLAIM UNDER TITLE VI
of the court. See id. at 701-02, 519 S.E.2d at 418-19.
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Title VI of the Civil Rights Act of 1964 provides that
"[n]o person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance."
42 U.S.C. § 2000d. Appellants allege that the Board receives
such federal assistance and that, as a result, the Board is
bound by Title VI. Further, they allege that the Board
discriminated against the Tribe, a racially and culturally
distinct people, by failing to adequately consider appellants'
cultural and religious uses of the Mattaponi River and its
tributaries and that by its issuance of the VWPP, the Board
violated Title VI.
We find no merit in appellants' Title VI claim. A party
seeking redress under the auspices of Title VI must meet the
Article III requirements of standing, and a failure to do so
nullifies his claim. See, e.g., Dekalb County School Dist. v.
Schrenko, 109 F.3d 680, 689 (11th Cir. 1997). As noted earlier,
appellants lack Article III standing. See Alliance to Save the
Mattaponi, 30 Va. App. 701-02, 519 S.E.2d at 418-19. Appellants
have thus failed to state a claim in their pleadings that
entitles them to redress under Title VI of the Civil Rights Act.
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For the foregoing reasons, we affirm the trial court's
order sustaining appellees' demurrer. 3
Affirmed.
3
Because we have resolved the issues in the appeal on the
grounds stated, we do not reach the Commonwealth's claims of
multifariousness and improper pleading of the federal claims.
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