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August 1, 2007 - Great News (Reprinted by permission):

Tribe can sue EPA

Tidewater Review Staff Write

KING WILLIAM – A judge recently ruled that the Mattaponi Indian Tribe can move forward in its case against the Environmental Protection Agency (EPA) for not stepping in and revoking Newport News’ federal permit to build the reservoir.
“The judge said we could in fact sue the EPA for acting arbitrarily and capriciously by failing to veto the city’s permit,” said Emma Garrison, an attorney representing the tribe.
Last week, the tribe filed an amendment to its original complaint to include the EPA. Garrison said the filing was a part of an ongoing lawsuit in the federal court in Washington D.C. that was initially filed by three environmental groups against the Army Corps of Engineers last year.
The tribe and the environmentalist groups argue that the Army Corps violated the Clean Water Act and the National Environmental Policy Act by issuing a permit for the King William Reservoir in late 2005. Garrison said since the EPA has the right to veto the permit, they are also in violation of both acts.
“Our argument is that this project so clearly violates the Clean Water Act and adversely affects the environment that the EPA should have invoked its veto,” Garrison said.
On May 20, 2007, Judge Henry H. Kennedy, Jr. issued an order denying the United States’ motion to dismiss EPA as a defendant and allowing the tribe and environmental groups to sue EPA for its failure to use its authority under the Clean Water Act, Garrison explained. The judge subsequently denied the EPA’s motion to reconsider and ordered the tribe to amend its complaint consistent with the court’s ruling.
“Last week’s filing is in response to the Court’s order,” Garrison said. “The substantive briefing of the case will begin this fall and the parties are currently working together to decide on a schedule.”
Earlier this year, the tribe reached a settlement agreement in the amount of $650,000 in a related lawsuit, which was pending in the Norfolk division of the Virginia Circuit Court against the City of Newport News and alleged violations of state law and the Treaty at Middle Plantation of 1677.
“The Tribe has no intention of settling the federal lawsuit, however, and its opposition to the King William Reservoir remains strong,” Garrison assured. “The Tribe chose to enter into a settlement agreement with the City of Newport News because, as the case approached trial, it became an increasing distraction for the Chief and Tribal Council and was a significant drain on the tribe’s time and resources.”
The state lawsuit also involved claims that the reservoir would violate the 1677 Treaty at Middle Plantation.
“The Treaty belongs to all of Virginia’s Indian Tribes, not just the Mattaponi, and the Mattaponi Tribe was uneasy about risking an adverse decision that would affect other tribes,” Garrison said.
Attorneys will submit briefs to the federal court in the fall on the case against the Corps and EPA. Garrison expects oral arguments to take place some time next year.

Courtesy the Tidewater Review.  The Tidewater Review is a newspaper in West Point, Virginia and has been in publication for 118 years, covering the counties of King William, King & Queen, New Kent, and the Town of West Point.

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