Alliance to Save the Mattaponi v. Commonwealth ( 2005 )

PRESENT: All the Justices
ALLIANCE TO SAVE THE MATTAPONI, ET AL.
v. Record No. 042196
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL QUALITY,
EX REL. STATE WATER CONTROL BOARD, ET AL.
MATTAPONI INDIAN TRIBE, ET AL.
v. Record No. 042198 OPINION BY
JUSTICE BARBARA MILANO KEENAN
November 4, 2005
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL QUALITY,
EX REL. STATE WATER CONTROL BOARD, ET AL.
MATTAPONI INDIAN TRIBE, ET AL.
v. Record No. 042826
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL QUALITY,
EX REL. STATE WATER CONTROL BOARD, ET AL.
FROM THE COURT OF APPEALS OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge Designate
In this consolidated appeal, we consider questions relating
to a Virginia Water Protection Permit (the permit) issued by the
State Water Control Board (the Board) to the City of Newport
News (the City) for construction of the King William Reservoir.
This appeal raises two distinct sets of issues. The first
set of issues is based on an appeal from the Court of Appeals
under the Virginia Administrative Process Act (the APA), Code
§ 2.2-4000 et seq., requiring us to consider whether the Board
violated any of its statutory mandates under the State Water
Control Law (Water Control Law), Code § 62.1-44.2 et seq., by
issuing the permit to the City.
The second set of issues, transferred to us from the Court
of Appeals without decision, involves a collateral attack on the
Board’s action based on the 1677 Treaty at Middle Plantation
(the Treaty) entered into by King Charles II and ancestors of
the Mattaponi Indian Tribe (the Tribe). The Tribe contends that
the Board’s issuance of the permit violated certain provisions
of this Treaty.
I.
FACTUAL BACKGROUND
In 1987, the City, York County, and the City of
Williamsburg created the Regional Raw Water Study Group (the
Regional Study Group) to examine the water supply needs of the
Lower Peninsula area of southeastern Virginia. Anticipating
growth in the area’s population from about 400,000 residents in
1990 to about 636,000 residents in 2040, the Regional Study
Group commissioned a raw water study plan to estimate future
water needs. The Group projected that by 2040, the three
localities would experience a water deficit of 39.8 million
gallons per day (mgd).
2
The Regional Study Group identified 31 different options
for providing additional water to the region. After considering
these options, the Group proposed a combination of alternatives
to solve the projected water deficit, including the
implementation of new water conservation measures and use
restrictions, the development of fresh groundwater sources, and
construction of the King William Reservoir. The King William
site was preferred over other potential reservoir sites for both
practical and environmental reasons.
In 1993, the City, acting as the “lead” locality for the
Regional Study Group, filed an application for a permit to build
the King William Reservoir project (the project) in compliance
with the Water Control Law and the Clean Water Act, 33 U.S.C.
§ 1251 et seq. (1988 & Supp. IV 1993). As finally proposed, the
King William Reservoir would be located on Cohoke Creek and
would employ a “pumpover” from the Mattaponi River. The project
would include the construction of a 75 mgd supply intake
structure and pumping station, and a 1.5-mile pipeline from
Scotland Landing to the Reservoir site.
The Reservoir and dam across Cohoke Creek would create an
impoundment of 1,526 acres. The project would have an
additional pumping station capable of pumping 50 mgd, and also
would provide a pipeline extending 11.7 miles from the King
William Reservoir to Beaverdam Creek in New Kent County.
3
The project would supply water to consumers in the Cities
of Newport News, Hampton, Poquoson, and Williamsburg, and the
Counties of James City, King William, New Kent, and York. The
average water withdrawal rate would be about 20 mgd.
In December 1997, the Board issued the City a permit to
build the Reservoir. The Board took this action after
conducting several public hearings, reviewing various
environmental impact statements and scientific reports, and
receiving public comments and written recommendations from both
state and federal agencies.
II.
THE PARTIES AND THE PROCEDURAL HISTORY OF THE CASE
The Tribe and the Alliance to Save the Mattaponi were among
the parties participating in the public comment process before
the Board issued the permit. The Tribe is recognized by the
Commonwealth of Virginia but not by the United States.1 Of the
1
Federal recognition, which can arise from legislation or
Department of the Interior administrative decisions, is most
commonly accomplished though a regulatory process overseen by
the Office of Federal Acknowledgement in the Office of the
Assistant Secretary for Indian Affairs. The Assistant Secretary
makes a proposed finding regarding recognition based on staff
recommendations that is subject to a period of public comment.
After the staff reviews the comments, the Assistant Secretary
makes his final ruling, which is subject to reconsideration by
the Interior Board of Indian Appeals. 25 C.F.R. § 83.1 et seq.
(2005).
Recognition by the Commonwealth of Virginia can only be
accomplished through legislation. A tribe must demonstrate to
the Virginia Council on Indians in the Secretariat of Natural
Resources that it has met requirements substantially similar to
4
450 members enrolled in the Tribe, 65 members currently live on
the Tribe’s reservation, which is located along the Mattaponi
River. The Tribe considers the Mattaponi River the center of
its cultural heritage and the base of its spiritual identity and
economic livelihood. The Tribe opposed construction of the
project, asserting that it would encroach on lands bordering the
Tribe’s reservation and would impair the Tribe’s “right to hunt,
fish, and gather” secured by the Treaty.
The Alliance to Save the Mattaponi and the Sierra Club, two
organizations devoted to environmental preservation, also
opposed issuance of the permit. These groups submitted written
comments during the administrative process, arguing that the
permit application should be denied because of incomplete
scientific data accompanying the application and the potential
adverse environmental impact on the Mattaponi River and
surrounding areas.
After the Board issued the permit, the Tribe, and a group
of organizations led by the Alliance to Save the Mattaponi,
filed separate petitions for appeal under the APA in the Circuit
Court of the City of Newport News (the circuit court)
challenging the Board’s decision. The Alliance to Save the
Mattaponi was joined in its petition by the Chesapeake Bay
those necessary for federal recognition. The Council then makes
its recommendation to the Governor and General Assembly. Code
§ 2.2-2629.
5
Foundation, Inc., King and Queen County, the Mattaponi and
Pamunkey Rivers Association, the Sierra Club, and certain
individual riparian owners (collectively, the Alliance). The
Alliance asserted in its petition that the Board’s decision to
issue the permit was made prematurely and was not supported by
substantial evidence in the record.
The Alliance primarily alleged that the Board failed 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.” The Tribe’s separate petition
included an appeal under the APA, and other claims for
injunctive and declaratory relief for alleged violations of the
Treaty.
The Commonwealth and the City demurred to both petitions
for appeal, asserting that the Alliance and the Tribe lacked
standing under the APA to challenge the Board’s decision to
issue the permit and that the separate Treaty claims were
multifarious, improperly pled, and failed to state a claim on
which relief could be granted. The Commonwealth also asserted
that the appeals were barred under the doctrine of sovereign
immunity.
6
The circuit court dismissed both APA appeals, holding that
they were not barred under the doctrine of sovereign immunity
but that the Alliance and the Tribe lacked standing to assert
those claims under the APA. The circuit court also dismissed
the Tribe’s separate Treaty claims on the basis that they failed
to state a claim on which relief could be granted, were
multifarious, and were improperly pled.
The Court of Appeals affirmed the circuit court’s judgment
that the Commonwealth was not immune from suit on the APA claims
but that the Alliance and the Tribe lacked standing to assert
those claims.2 Mattaponi Indian Tribe v. Commonwealth, 31 Va.
App. 472, 524 S.E.2d 167 (2000); Alliance to Save the Mattaponi
v. Commonwealth, 30 Va. App. 690, 519 S.E.2d 413 (1999). We
reversed the Court of Appeals’ judgment that the Alliance and
the Tribe lacked standing. Mattaponi Indian Tribe v.
Commonwealth, 261 Va. 366, 541 S.E.2d 920 (2001). We concluded
that they had standing to challenge the Board’s decision because
there was a “causal connection” between their alleged injuries
and the Board’s action. Id. at 376-77, 541 S.E.2d at 925. We
remanded the cases for trial in the circuit court.3 Id. at 378,
541 S.E.2d at 926.
2
The Court of Appeals did not address the circuit court’s
holding regarding the Tribe’s separate Treaty claims.
3
Although the Commonwealth raised the issue of sovereign
immunity before us, we did not directly address that issue or
7
On remand in the circuit court, the Alliance did not amend
its petition. The Tribe filed an amended petition alleging that
the Board’s decision to issue the permit violated Articles IV
and VII of the 1677 Treaty at Middle Plantation.4 The Tribe also
alleged that the United States was the successor-in-interest to
the British Crown and that the Commonwealth was bound, as a
matter of federal law, by the obligations owed to the Tribe
under the Treaty.
Article IV of the Treaty provides:
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 Lands shall be removed from thence . . . .
Treaty at Middle Plantation With Tributary Indians After Bacon’s
Rebellion, May 29, 1677, reprinted in 4 Early American Indian
Documents: Treaties and Laws, 1607-1789, at 83 (Alden T. Vaughan
& W. Stitt Robinson, eds. 1983).
Article VII of the Treaty provides:
That the said Indians have and enjoy their wonted
conveniences of Oystering, Fishing, and gathering
Tuchahoe, Curtenemons, Wild Oats, Rushes, Puckoone, or
any thing else (for their natural support) not useful
to the English, . . . Always provided they first
the Court of Appeals’ holding rejecting the Commonwealth’s
position on this point.
4
The circuit court overruled the Commonwealth’s and the
City’s objections to the Tribe’s motion for leave to amend,
holding that the joinder of the APA claims and the separate
Treaty claims in a single chancery action was not multifarious.
8
repair to some Publick Magistrate . . . who shall not
refuse them a Certificate . . . .
1677 Treaty at Middle Plantation, 4 Early American Indian
Documents, supra, at 84.
The Tribe alleged that the permit violated Article IV
because the project would flood about 532 acres of land in the
three-mile “buffer zone” surrounding the reservation. The Tribe
further asserted that the permit violated Article VII because
the Tribe’s shad fishing and hatchery operation would be
endangered due to the flooding of wetlands near the reservation
and the alteration of the River’s salinity. Additionally,
citing the Water Control Law, the Tribe alleged that the Board’s
decision erroneously failed to consider the Tribe’s Treaty
rights, cultural values, and the existing beneficial uses of the
River.5
The Commonwealth and the City filed demurrers and summary
judgment motions seeking dismissal of all claims asserted by the
Alliance and the Tribe. The circuit court granted the summary
judgment motions, holding that the Board’s decision was
supported by substantial evidence in the administrative record
and that the issuance of the permit did not violate any state or
federal law.
5
The Tribe made two additional assignments of error in the
circuit court that are not before us in this appeal.
9
The circuit court also held that the separate Treaty claims
were a matter of Virginia law, but that the court did not have
jurisdiction to decide these issues under the terms of the
Treaty. The circuit court entered final judgment approving the
Board’s decision and dismissing the Tribe’s separate Treaty
claims. The Alliance and the Tribe appealed.
After rejecting the Commonwealth’s plea of sovereign
immunity, the Court of Appeals affirmed the circuit court’s
decision on the APA claims and transferred the Tribe’s separate
Treaty claims to this Court. Mattaponi Indian Tribe v.
Commonwealth, 43 Va. App. 690, 601 S.E.2d 667 (2004). The Court
of Appeals concluded that neither the Board, nor the circuit
court in its capacity as an appellate tribunal, had jurisdiction
to review the Treaty claims asserted under the APA. Id. at 709-
10, 601 S.E.2d at 676-77. Addressing the remaining APA claims,
the Court of Appeals held that the Board acted within its
discretion and that substantial evidence in the agency record
supported the Board’s decision. Id. at 723, 601 S.E.2d at 684.
Finally, upon holding that it lacked subject matter jurisdiction
to consider the Tribe’s separate Treaty claims asserted under
the circuit court’s general equity jurisdiction, the Court of
10
Appeals transferred those claims to this Court under Code
§ 8.01-677.1.6 Id. at 710, 601 S.E.2d at 677.
The Tribe and the Alliance each filed a petition for appeal
to this Court. We granted the petitions and consolidated the
cases along with the Tribe’s separate Treaty claims transferred
to us from the Court of Appeals.
III.
APA CLAIMS
Commonwealth’s Plea of Sovereign Immunity
Before considering the merits of the parties’ claims in the
APA appeals, we first address the Commonwealth’s motion to
dismiss these appeals based on its plea of sovereign immunity.7
Initially, the Commonwealth acknowledges that both the APA and
the Water Control Law provisions of Code § 62.1-44.29 create an
express waiver of the Commonwealth’s immunity from suit.
Nevertheless, the Commonwealth argues that Code § 2.2-
4002(B)(3), which exempts from judicial review the “location,
design, specifications or construction of public buildings or
6
Because the Court of Appeals determined that it did not
have jurisdiction over the Tribe’s separate Treaty claims, the
Court “express[ed] no opinion” on the issue whether the doctrine
of sovereign immunity barred those claims. Mattaponi Indian
Tribe v. Commonwealth, 43 Va. App. 690, 706 n.7, 601 S.E.2d 667,
675 n.7 (2004).
7
While the Commonwealth and the City filed joint briefs in
the three cases, the City did not join the portion of the briefs
asserting the Commonwealth’s immunity. Instead, the City
opposed the Commonwealth’s sovereign immunity defense.
11
other facilities,” applies as an exception to those express
waiver provisions.
The Commonwealth asserts that the Reservoir is a “public
facility” within the meaning of Code § 2.2-4002, and that the
Board’s permit decision concerns the “location, design,
specifications [and] construction” of the Reservoir. Therefore,
the Commonwealth concludes, the Board’s decision to issue the
permit is not subject to judicial review.
We disagree with the Commonwealth’s analysis of this issue.
In conducting our review of the relevant statutes, we follow
established principles of statutory interpretation. Courts are
bound by the plain meaning of statutory language. Horner v.
Dep’t of Mental Health, 268 Va. 187, 192, 597 S.E.2d 202, 204
(2004); Woods v. Mendez, 265 Va. 68, 74-75, 574 S.E.2d 263, 266
(2003); Earley v. Landsidle, 257 Va. 365, 370, 514 S.E.2d 153,
155 (1999). Thus, if the language of a statute is unambiguous,
courts may not interpret statutory language in a way that
effectively holds that the General Assembly did not mean what it
actually expressed. Horner, 268 Va. at 192, 597 S.E.2d at 204;
Mozley v. Prestwould Bd. of Dirs., 264 Va. 549, 554, 570 S.E.2d
817, 820 (2002).
When one statute addresses a subject in a general manner
and another addresses a part of the same subject in a more
specific manner, the two statutes should be harmonized, if
12
possible, and when they conflict, the more specific statute
prevails. Capelle v. Orange County, 269 Va. 60, 65, 607 S.E.2d
103, 105 (2005); Frederick County Sch. Bd. v. Hannah, 267 Va.
231, 236, 590 S.E.2d 567, 569 (2004); County of Fairfax v.
Century Concrete Servs., 254 Va. 423, 427, 492 S.E.2d 648, 650
(1997).
Code § 62.1-44.29 expressly provides for judicial review of
all final decisions of the Water Control Board relating to the
issuance of water protection permits. Under the statute, any
aggrieved owner or person participating in the public comment
process related to a final decision of the Board under Code
§ 62.1-44.15:5 is entitled to judicial review under the APA,
provided that such person also qualifies for standing under
Article III of the United States Constitution. Code § 62.1-
44.29.
Among the various exemptions to the provisions of the APA
is Code § 2.2-4002(B)(3), which exempts from that Act review of
agency actions involving the “location, design, specifications
or construction of public buildings or other facilities.” This
statutory exemption, on its face, applies generally to agency
actions relating to the development of public buildings and
other facilities.
By contrast, the relevant portions of Code § 62.1-44.29
specifically address appeals of final decisions of the Board
13
issuing or denying a water protection permit, such as the appeal
before us. Notably, this statute does not remove from judicial
review any final decisions of the Board involving the issuance
or denial of such permits. Instead, the statute restricts only
the potential parties who may challenge such decisions by
establishing standing requirements for bringing an appeal.
We also observe that judicial review of Board decisions
under Code § 62.1-44.29 is not limited in scope to a review of
the location, design, specifications, or construction of public
facilities. This statute provides for review of the Board’s
final decisions issuing or denying water protection permits, as
well as review of its final decisions involving certain
certificates, special orders, and other types of action that the
Board is authorized to take. See, e.g., Code § 62.1-44.15(5),
(8a)-(8c).
A water protection permit, in addition to specifying the
water resources infrastructures that may be built for any new
project, includes many provisions regarding the alteration and
withdrawal of state waters. The terms of a permit also impose
numerous mitigation requirements for the protection of water
quality, water content, affected wetlands, and various natural
resources. Therefore, we conclude that Code § 62.1-44.29
provides a comprehensive mechanism for review of certain final
decisions of the Board, including final decisions issuing or
14
denying water protection permits, manifesting a legislative
intent to subject such decisions to review in the circuit and
appellate courts of this Commonwealth. Accordingly, we hold
that to the extent that these specific provisions may conflict
with the general exemption provision of Code § 2.2-4002(B)(3),
the more specific provisions of Code § 62.1-44.29 are
controlling here.
Our conclusion in this regard also avoids the illogical
consequences of the Commonwealth’s contrary position. The
Commonwealth’s interpretation of Code § 2.2-4002(B)(3) would
effectively nullify much of the judicial review procedures of
Code § 62.1-44.29 by exempting from review any permit involving
a project in which a “public facility” is to be constructed. In
addition, the Commonwealth’s position would create a conflict
with the terms of the Clean Water Act, which require that each
state provide a mechanism for judicial review of state
administrative agency decisions issuing or denying environmental
permits. See 33 U.S.C. § 1369(b)(1)(F) (2000); 40 C.F.R.
§ 123.30 (2005). Therefore, we hold that Code § 62.1-44.29 is
an express waiver of the Commonwealth’s immunity from judicial
review of final decisions of the Water Control Board issuing or
denying water protection permits.8
8
Based on this holding, we do not reach the Tribe’s
argument that the Board’s Executive Secretary would not be
immune from suit even if this Court sustained the Commonwealth’s
15
Burden of Proof and Standard of Review
The Alliance and the Tribe, as the parties complaining of
the Water Control Board’s action, bear the burden of proving an
error of law on the issues whether the Board complied with
statutory authority, and whether there is substantial evidence
to support the Board’s decision. Code § 2.2-4027; Aegis Waste
Solutions, Inc. v. Concerned Taxpayers of Brunswick County, 261
Va. 395, 403, 544 S.E.2d 660, 665 (2001); State Bd. of Health v.
Godfrey, 223 Va. 423, 432-33, 290 S.E.2d 875, 879-80 (1982).
Under the “substantial evidence” standard, the reviewing court
may reject an agency’s factual findings only when, on
consideration of the entire record, a reasonable mind would
necessarily reach a different conclusion. Aegis Waste
Solutions, Inc., 261 Va. at 404, 544 S.E.2d at 665; Virginia
Real Estate Comm’n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123,
125 (1983).
This standard is designed to give stability and finality to
the factual findings of administrative agencies. Aegis Waste
Solutions, Inc., 261 Va. at 404, 544 S.E.2d at 665; Bias, 226
Va. at 269, 308 S.E.2d at 125. In applying the substantial
evidence standard, the reviewing court is required to take into
account “the presumption of official regularity, the experience
and specialized competence of the agency, and the purposes of
plea of sovereign immunity in the present appeal under the
16
the basic law under which the agency has acted.” Code § 2.2-
4027; see also Browning-Ferris Indus. of S. Atl., Inc. v.
Residents Involved in Saving the Env’t, Inc., 254 Va. 278, 284,
492 S.E.2d 431, 434 (1997). However, when an issue involves a
pure question of statutory interpretation, that issue does not
invoke the agency’s specialized competence but is a question of
law to be decided by the courts. Sims Wholesale Co. v. Brown-
Forman Corp., 251 Va. 398, 404, 468 S.E.2d 905, 908 (1996); see
Browning-Ferris Indus. of S. Atl, Inc., 254 Va. at 284, 492
S.E.2d at 434; Hampton Roads Sanitation Dist. Comm’n v. City of
Chesapeake, 218 Va. 696, 702, 240 S.E.2d 819, 823 (1978).
Statutory Duty to Protect Instream Beneficial Uses
The Alliance and the Tribe argue that the Board’s decision
violated the Water Control Law because the Board did not
adequately protect existing instream beneficial uses, and that
the Court of Appeals erred in approving this aspect of the
Board’s decision. The Alliance and the Tribe assert that under
Code § 62.1-44.15:5(B) and (C), the Board must absolutely
protect existing uses, and that the Board erred by balancing
existing uses against proposed uses. They further contend that
under this statute, an application for a project that will
detrimentally alter any existing use of State waters, even for
Administrative Process Act.
17
the purpose of providing a future beneficial use of those
waters, must be denied.
We reject this analysis because it effectively would
prohibit the approval of most projects under the Water Control
Law. Code § 62.1-44:15:5(B) authorizes the Board to “issue a
[permit] if it has determined that the proposed activity is
consistent with the provisions of the Clean Water Act and the
State Water Control Law and will protect instream beneficial
uses.” Under Code § 62.1-10(b), “[i]nstream beneficial uses
include, but are not limited to, the protection of fish and
wildlife habitat, maintenance of waste assimilation, recreation,
navigation, and cultural and aesthetic values.”
The Water Control Law also requires the Board, before
issuing a permit, to consult with several other State agencies
regarding “the need for balancing instream uses with offstream
uses.” Code § 62.1-44.15:5(F). “Offstream beneficial uses
include, but are not limited to, domestic (including public
water supply), agricultural, electric power generation,
commercial and industrial uses. Public water supply uses for
human consumption shall be considered the highest priority.”
Code § 62.1-10(b).
These definitions and statutory directives reflect the
General Assembly’s recognition that the many uses of water may
at times be conflicting. The Commonwealth’s water policy, as
18
set forth in the Water Control Law, requires the Board to
balance existing and proposed uses, with the directive that
“[d]omestic and other existing beneficial uses shall be
considered the highest priority uses.” Code § 62.1-44.15:5(C).
In addition, as we have observed, cities have the duty to
protect their water supplies, and the Commonwealth’s policy is
to encourage every reasonable exercise of this obligation.
Tidewater Ass’n of Homebuilders, Inc. v. City of Virginia Beach,
241 Va. 114, 118, 400 S.E.2d 523, 525 (1991); Board of
Supervisors v. City of Norfolk, 153 Va. 768, 775, 151 S.E. 143,
145 (1930). Therefore, in considering the City’s application
for a water protection permit, the Board was required to balance
the various uses, and the statutory directive that the Board
“protect” existing instream beneficial uses must be viewed in
this context. That directive required the Board to exercise its
judgment to ensure that such uses be protected, not in an
absolute sense and at the cost of rejecting any proposed future
uses, but within a reasoned perspective in view of competing
statutory considerations. Such exercise of discretion and
judgment is a matter plainly contemplated by the Water Control
Law and the Board’s special level of competency in these
matters. Therefore, we hold that the Board properly applied the
statutory directive of Code § 62.1-44.15:5(C), and that the
19
Court of Appeals did not err in its interpretation of this
statutory language.
APA Claims Advanced Only by the Alliance
The Alliance argues that the Court of Appeals erred in
approving the Board’s decision to issue the permit before
obtaining additional scientific information. The Alliance
asserts that the Board should have withheld its decision until
the completion of a particular study addressing wetlands losses
and mitigation options, and until questions relating to changes
in the River’s salinity level were fully resolved. The Alliance
thus contends that the Board violated its legal duty to assure
that all beneficial uses will be protected.
We find no merit in the Alliance’s assertion that the Board
was required to wait until these additional studies were
completed before issuing the permit. The timing of the Board’s
issuance of a water protection permit is a matter within the
Board’s discretion. Our review is limited to determining
whether the Board acted in compliance with its statutory
mandates and whether its final decision was supported by
substantial evidence in the administrative record at the time
the decision was made. See Code §§ 2.2-4025 and -4027.
If the Board were required to wait for the results of all
potential studies before making a decision, water protection
permits would be issued very rarely, if ever. See, e.g.,
20
Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275,
1280-81 (9th Cir. 1973) (“If we were to impose a requirement
that an impact statement can never be prepared until all
relevant environmental effects were known, it is doubtful that
any project could ever be initiated.”). Indeed, interested
parties to an agency decision very often request that an agency
perform additional studies or obtain additional data. Here, the
Board considered several scientific studies and numerous
comments submitted by environmental experts. Based on the
present record, we conclude that the Board did not abuse its
discretion in determining that it had sufficient information to
act on the City’s permit application.
With regard to the Alliance’s “wetlands impacts” challenge,
we conclude that the Alliance has failed to meet its burden of
establishing that reasonable persons necessarily would have
reached a different conclusion than that reached by the Board.
Bias, 226 Va. at 269, 308 S.E.2d at 125. The Board was aware of
both the project’s potential effect on wetlands and its duty
under Code § 62.1-44.15:5(D) to mitigate the impact on wetlands.
The Board acted to compensate for the loss of wetlands by
including in the permit a condition that requires the City to
“creat[e] or restor[e] vegetated wetlands at a minimum of a 2:1
level of compensation.”
21
The permit conditions specify that the City must submit a
detailed wetland mitigation plan to the Department of
Environmental Quality (DEQ) for its review and approval “prior
to any construction that would result in the destruction of
existing wetlands.” The wetlands mitigation plan must include
specific success criteria and a “monitoring program by which the
successful creation and restoration of wetlands can be
evaluated.” Additionally, the permit conditions require that
the City subject the mitigation plan to a public notice, a
public meeting, and a comment period before the plan may be
submitted to DEQ for final approval.9 Thus, we conclude that the
Board did not abuse its discretion in determining that these
permit conditions will provide adequate protection for affected
wetlands.
Next, we disagree with the Alliance’s assertion that the
one-dimensional model designed by Virginia Institute of Marine
Science (the VIMS model), on which the Board relied to address
potential salinity changes, was flawed. We accord particular
deference to an agency’s expertise in matters of scientific
methodology, because the APA requires us to “take due account of
the presumption of official regularity [and] the expertise and
9
We also note that the Final Environmental Impact Study
conducted by the Army Corps of Engineers concluded that
“[a]lthough the proposed reservoir would function differently
from the existing wetlands, the reservoir would have a high
22
specialized competence of the agency.” Code § 2.2-4027; see
Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 244, 369 S.E.2d
1, 8 (1988) (decisions by agencies on matters within their
specialized competence are entitled to “special weight” in the
courts); see also Baltimore Gas & Elec. Co. v. Natural Res. Def.
Council, 462 U.S. 87, 103 (1983) (when examining agency’s
scientific predictions and determinations, appellate court
generally must be highly deferential); Forging Indus. Ass’n v.
Secretary of Labor, 773 F.2d 1436, 1443 (4th Cir. 1985)
(application of “substantial evidence” test is particularly
deferential when agency findings are based on complex scientific
data or involve speculative projections).
We conclude that the Board did not abuse its discretion in
relying on the VIMS model to examine the potential impact of
salinity changes in the River. A report prepared by the Army
Corps of Engineers’ Waterways Experiment Station (Corps’ report)
analyzed the VIMS model and found that its approach was
“technically sound for assessing the environmental impact of
freshwater withdrawal from the Mattaponi River.” The Corps’
report also approved the assumptions made in the VIMS model and
concluded that the model’s conclusions “are adequate to address
the impact of the freshwater withdrawals.” The Corps’ report
disagreed with the Alliance’s assertion that a multi-dimensional
probability of providing a number of the same functions that may
23
model should have been used, stating that “we do not feel that a
3D model study is required nor feasible in this study.”10
We also hold that substantial evidence supports the Board’s
judgment that the project will result in only very minor
salinity changes that will have no impact on fish and plant
life. The Board relied on the VIMS model’s conclusion that
natural salinity fluctuations greatly exceeded any changes in
salinity that would result from the proposed water withdrawals.
According to studies the Board considered, the minimal
salinity changes resulting from the proposed withdrawals would
have “little or no impact on existing wetland vegetation.”
These studies also concluded that the project would not impact
any “threatened” plant species. Other scientific reports in the
administrative record concluded that the proposed water
withdrawals would not have a significant impact on the American
shad and related species of fish.
Finally, we observe that the Board included a condition in
the permit that requires the City to develop a plan for
monitoring salinity levels. This additional protection allows
be lost.”
10
Although the Corps’ report approved the VIMS model, the
report recommended modeling an additional “cumulative effects”
scenario that would account for projected withdrawals from the
Pamunkey River, as well as the Mattaponi River. DEQ adopted
this recommendation. The results from this supplemental
“cumulative effects” study confirmed that any changes to
salinity levels would be minimal and would be overwhelmed by the
natural range of salinity concentrations.
24
the Board to modify the permit if the VIMS model’s conclusion
regarding salinity change is proven inaccurate.
The Alliance next argues that the Board failed to satisfy
its obligation under Code § 62.1-11(E) to prevent “the waste or
unreasonable use” of state waters. The Alliance identifies
certain studies concluding that the City inflated its future
water needs by as much as 50 percent. The Alliance contends
that the results of these studies should have caused the Board
to delay issuing the permit to inquire further concerning the
disputed demand projections. The Alliance asserts that the
Board’s issuance of the permit when demand projections were
uncertain was an abdication of the Board’s “clear obligation” to
assure that the issuance of a permit will not result in the
waste or unreasonable use of state waters. We disagree with the
Alliance’s arguments.
Several studies conducted by the Regional Study Group, the
Army Corps of Engineers, DEQ, and the Board itself all supported
the need for the project. The future water deficits estimated
in the Army Corps’ Final Environmental Impact Statement compared
favorably with the Board’s own studies.11
DEQ independently reviewed the City’s demand projections
and found that they were “a little high, but not so high that
11
The Board’s study predicted a 35 mgd deficit in 2030,
while the Army Corps’s study predicted a 39.8 mgd deficit in
2040.
25
you could call them unreasonable.” DEQ also reviewed the
“Siegel Muller” study, on which the Alliance relied, and
determined that the study’s projections were “low.” When there
are conflicting expert opinions, the administrative agency, not
the courts, must resolve the factual conflicts. Webb v.
Gorsuch, 699 F.2d 157, 160 (4th Cir. 1983). We conclude that
the Board considered the conflicting views presented by the
experts and made a reasonable decision supported by substantial
evidence.
Additionally, we find no merit in the Alliance’s argument
that the Board failed to prevent the “waste or unreasonable use”
of state waters by proceeding with the permit decision before
obtaining additional information related to long-term water
demand. The evidence showed that large-scale water supply
projects often require a minimum 20-year development period.
During this time, the need for water can greatly escalate and,
therefore, it is often necessary to begin planning such projects
even though long-term demand estimates cannot be made with
complete precision.
APA Claims Advanced Only by the Tribe
The Tribe argues that the Court of Appeals erred in holding
that the Board did not have authority to consider the Tribe’s
Treaty rights before issuing the permit. The Tribe asserts that
the Board, as an agency of the Commonwealth, has a duty to
26
uphold the Commonwealth’s obligations to the Tribe under the
1677 Treaty. Therefore, the Tribe contends that the Board’s
action was a violation of the Commonwealth’s “trust”
relationship with the Tribe. We disagree with the Tribe’s
arguments.
The Board derives its authority solely from the Water
Control Law that creates and defines the Board’s duties, which
are set forth in Code § 62.1-44.15:5(D). These duties include
the issuance or denial of water protection permits for new
activities that will significantly alter or degrade existing
wetland acreage or functions, or will cause permanent flooding
or impoundment.
A water protection permit, like other regulatory permits,
does not affect property rights or otherwise adjudicate their
merits. See Zappulla v. Crown, 239 Va. 566, 571, 391 S.E.2d 65,
68 (1990). Such regulatory permits determine only the rights of
an applicant with relation to the Commonwealth and the public.
Id. at 570, 391 S.E.2d at 68. A water protection permit issued
by the Board is a certification that an applicant’s proposed
activity “is consistent with the provisions of the Clean Water
Act and the State Water Control Law and will protect instream
beneficial uses.” Code § 62.1-44.15:5(B).
The Water Control Law likewise does not authorize the Board
to determine any other private rights of citizens. See Code
27
§ 62.1-44.22. In conducting a public meeting or hearing under
Code § 62.1-44.15:5(D), and in deciding to issue or deny a water
protection permit, the Board’s function is to evaluate the
evidence, to make factual determinations, and to ensure that the
permit complies with statutory requirements. Accordingly,
because the Water Control Law does not, and could not, authorize
the Board to adjudicate any private rights, we hold that the
Court of Appeals did not err in concluding that Board lacked
authority to consider the Tribe’s Treaty claims.
The Tribe next argues that the Board did not sufficiently
consider and protect archaeological sites that will be flooded
by the Reservoir. According to the Tribe, these archaeological
sites have cultural significance and the Board’s failure to
consider their cultural value violated the Board’s statutory
mandate to protect all beneficial uses of state waters. In
addition, the Tribe asserts that the Court of Appeals erred in
holding that these sites are not “beneficial use[s]” within the
meaning of Code § 62.1-44.15:5(C).
We first observe that Code § 62.1-44.15:5(C)12 specifies
cultural and aesthetic values as component considerations in the
12
The language of Code § 62.1-44.15:5(C) provides: “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. Conditions contained in a Virginia Water
Protection Permit may include, but are not limited to, the
28
preservation of instream flows as beneficial uses of Virginia’s
waters. This subsection does not refer to archaeological sites
among the various factors to be considered but focuses instead
on present-day uses related to the waters, including fish and
wildlife resources. The statutory references to cultural and
aesthetic values must be viewed within this context, rather than
isolated from the rest of the text as the Tribe asks us to do.
See Turner v. Commonwealth, 226 Va. 456, 460, 309 S.E.2d 337,
339 (1983) (the maxim noscitur a sociis provides that the
meaning of a word must be determined in relation to surrounding
language and must be read in harmony with its context). Thus,
we conclude that the archaeological sites, even though they have
cultural value, are not included within the scope of the
statutory factors. Accordingly, the Court of Appeals did not
err in holding that these archaeological sites are not
“beneficial uses” of water under the statute.
Nevertheless, contrary to the Tribe’s argument, the record
shows that the Board actually considered the cultural value of
these archaeological sites. The Board concluded that it could
not protect the affected archaeological sites while at the same
time preserving instream flows of the Mattaponi River and
satisfying the water supply needs of the project. The evidence
volume of water which may be withdrawn as a part of the
permitted activity. Domestic and other existing beneficial uses
shall be considered the highest priority uses.”
29
showed that protection of the archaeological sites would require
construction of a smaller reservoir, which would necessitate an
increase in withdrawals from the River to satisfy projected
water demands. This increase in water withdrawals would
threaten instream flows. Given the competing concerns involved,
we conclude that the Board’s exercise of its discretion to
protect instream flows was supported by substantial evidence.
The Tribe also argues that the Board failed to consider the
cultural benefits the Tribe derives from its gathering,
religious, and fishing uses of the River. The Tribe
acknowledges that the Board imposed permit conditions that would
generally protect fishing but asserts that these conditions are
inadequate because they do not consider the Tribe’s unique
cultural uses of the Mattaponi River and do not protect the
Tribe’s fishing uses at specific locations.13
With regard to the Tribe’s gathering and religious uses of
the River, the Tribe merely relies on general assertions that
the project would adversely affect such uses. However, the bare
assertion that a project will have an adverse impact on a
particular use is not a sufficient basis for a reviewing court
13
In making this argument, the Tribe refers to the Court of
Appeals’ statement that the Tribe’s evidence on this issue
crossed “the threshold of materiality” standard articulated in
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council,
435 U.S. 519, 553 (1978). See 43 Va. App. at 714-15, 601 S.E.2d
at 679. We do not consider that standard, however, because it
30
to overturn an agency decision. While there is some evidence in
the record concerning the manner in which the Tribe uses the
River for gathering and religious uses, there is no specific
evidence regarding how those uses will be adversely affected.
Without such evidence, the Tribe cannot meet its burden of
establishing that reasonable persons would necessarily have
reached a different conclusion on this issue. Bias, 226 Va. at
269, 308 S.E.2d at 125.
Although the Tribe presented evidence that its shad fishing
practices may be affected by the project, the Board relied on
contrary evidence and found that any adverse affect on these
fishing practices would be minimal. The Board relied on an
environmental analysis prepared by Dr. Greg C. Garman, which
concluded that “there does not appear to be a substantial or
scientific basis to claims of significant and detrimental
impacts to migratory fish populations in the Mattaponi River, as
the direct result of construction and operation of [the King
William Reservoir].”
The Army Corps’ Final Environmental Impact Statement
similarly found that “[a]nadromous fish species should not be
measurably affected by any potential changes in Mattaponi River
salinity conditions caused by river withdrawals.” The VIMS
model, as previously discussed, also supported this conclusion.
is inapplicable to the review of an agency decision under
31
We further observe that the Board considered the project’s
impact on shad spawning and attempted to protect this activity
by taking steps to ensure that fish eggs do not get caught in
the water intake structures, and by limiting water withdrawals
during shad spawning periods. Therefore, we conclude that
substantial evidence supports the Board’s determination
regarding the limited potential impact on the Tribe’s fishing
practices.
The Tribe argues, nevertheless, that even if the Board’s
conditions will protect fishing generally, the Board did not
protect the Tribe’s fishing uses at particular locations.
However, the Tribe failed to present evidence showing that any
particular fishing location reflects the Tribe’s “unique
cultural dependence” on fishing in the River. Therefore, we
will not set aside the Board’s factual finding that the project
will not “restrict” the Tribe’s right to fish.
In sum, we hold that the Court of Appeals did not err in
affirming the circuit court’s judgment approving the Board’s
decision. The record shows that the Board fulfilled its
statutory mandates, did not abuse its discretion in approving
certain scientific methodology or in determining to proceed with
the permit decision, and reached a decision supported by
substantial evidence.
Virginia’s APA.
32
IV.
THE TRIBE’S SEPARATE TREATY CLAIMS
The Tribe first argues that the circuit court erred in
holding that the Treaty claims are governed by Virginia law,
rather than by federal law. The Tribe observes that the United
States Constitution vests treaty-making authority only in the
federal government, and contends that the Constitution’s
Supremacy Clause adopted as federal law treaties made between
Indian tribes and the British Crown. Citing Worcester v.
Georgia, 31 U.S. 515, 560 (1832), the Tribe further contends
that the United States government is the exclusive arbiter of
all Indian affairs. Thus, the Tribe maintains that the Treaty
provisions are enforceable as a matter of federal law, and that
the doctrine of sovereign immunity does not bar the Tribe from
asserting the Treaty claims against the Commonwealth.
In response, the Commonwealth agrees that the Treaty is
valid but argues that the Treaty is a matter of Virginia law,
rather than federal law, because the express language of the
Supremacy Clause adopts as federal law only those treaties made
under the authority of the United States government. The
Commonwealth asserts that the Treaty was not made under such
federal authority, and that the rights and obligations under the
Treaty passed directly to Virginia after it declared its
independence from the British Crown. The Commonwealth maintains
33
that because the Treaty is a matter of Virginia law and the
Commonwealth has not waived its immunity regarding these Treaty
claims, the Treaty is unenforceable against the Commonwealth.
The City agrees with the Commonwealth that the Treaty is a
matter of Virginia law and implicitly acknowledges that it may
not claim the total sovereign immunity of the Commonwealth.
However, the City argues that the circuit court properly
dismissed the Tribe’s Treaty claims because the language of the
Treaty makes the Governor of Virginia, not the courts, the final
arbiter of claims asserted under the Treaty.
In resolving these issues, we first consider the question
whether the Treaty is federal law.14 The Constitution gives the
federal government the sole power to enter into treaties. See
U.S. Const. art. I, § 10, cl. 1. In addition, the Supremacy
Clause of the Constitution states, in relevant part: “[A]ll
Treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the Land.” U.S.
Const. art. VI, cl. 2.
14
We agree with the Court of Appeals’ conclusion that it
did not have jurisdiction to consider the Tribe’s separate
Treaty claims. As the Court observed, its civil appellate
jurisdiction is limited by Code § 17.1-405 and includes only
subject matters specified by the statute. 43 Va. App. at 710,
601 S.E.2d at 677. Therefore, while the Court had jurisdiction
under Code § 17.1-405(1) and (4) to hear the Tribe’s appeal of
the Board’s decision under the APA, the Court lacked
jurisdiction to review the Tribe’s separate Treaty claims that
were submitted to the circuit court’s general jurisdiction.
34
We conclude that these Constitutional provisions do not
support the Tribe’s position. The Supremacy Clause refers only
to treaties made under the authority of the United States. The
Treaty before us was entered into in 1677, over 100 years before
the Constitution was adopted in 1789. Because the United States
did not exist in 1677, manifestly, the Treaty could not have
been made under the authority of the United States. Further,
the United States Congress has not ratified the Treaty pursuant
to its authority under Article I, Section 10 of the
Constitution.
Although the Supremacy Clause refers to “Treaties made,”
thereby suggesting the adoption of treaties entered into before
1789, this language plainly does not refer to treaties entered
into between the British Crown, by its royal representative, and
the Crown’s adversaries. Instead, the Supremacy Clause’s
reference to “Treaties made” signifies an adoption of treaties
made during the eight years when the Articles of Confederation
were in effect for the federal government. As the United States
Supreme Court observed in Reid v. Covert, 354 U.S. 1, 16-17
(1957), “the adoption of the treaty provision in Article VI
make[s] it clear that the reason treaties were not limited to
those made in ‘pursuance’ of the Constitution was so that
agreements made by the United States under the Articles of
Confederation . . . would remain in effect.”
35
We also disagree with the Tribe’s argument that the Treaty
is federal law based on the federal government’s exercise of
authority over Indian affairs under Article I, Section 8, Clause
3 of the Constitution. This Constitutional provision, also
known as the “Indian Commerce Clause,” states in relevant part
that “Congress shall have Power . . . [t]o regulate commerce
. . . with the Indian Tribes.”
The Indian Commerce Clause has provided a foundation for
the development of a “guardian-ward” relationship between the
United States and certain Indian tribes, which is governed by
acts of Congress. United States v. Kagama, 118 U.S. 375, 382
(1886); see United States v. Sandoval, 231 U.S. 28, 46 (1913).
In addition, federal protection is granted to all Indian tribes
under “the Nonintercourse Act.”15 The present chancery suit,
however, does not raise a claim involving the title or
possession of any Indian lands under the Nonintercourse Act but
relates only to the Tribe’s rights under the Treaty.16
15
Under “the Nonintercourse Act,” which was enacted to
protect Indian lands, no purchase, lease, or other conveyance of
land from any Indian tribe is valid unless “made by treaty or
convention entered into pursuant to the Constitution.” See 25
U.S.C. § 177 (2000 & Supp. II 2002). Therefore, under this
provision, before any proposed conveyance of Indian lands will
be recognized as valid, both the United States government and
the conveying Indian tribe must approve the conveyance.
16
We note that although the Tribe originally asserted a
claim under the Nonintercourse Act, the Tribe has abandoned that
claim.
36
We also observe that the Tribe has not established that it
has been the subject of federal legislation enacted under the
federal government’s “guardian-ward” relationship with various
tribes. Because the Tribe has not been granted federal
recognition, and has not shown that it otherwise has obtained
protective legislation from the federal government based on an
acknowledged guardian-ward relationship, we discern no basis for
concluding that the Treaty is federal law based on such a
relationship. Therefore, we hold that the text of the
Constitution does not support the Tribe’s contention that the
Treaty is federal law.
We also find no merit in the Tribe’s contention that
certain decisional law of the federal courts, as exemplified by
the Supreme Court’s decision in Worcester, requires us to
conclude that the Treaty is federal law. The Court’s decision
in Worcester involved treaties made with the Cherokee nation in
1785 and 1791, after independence from the British Crown and
under the authority of the federal government. The Court was
not asked to decide any issues under a treaty entered into by
the British Crown. Therefore, the Court’s statement in
Worcester that the United States acquired all claims of the
British Crown, both territorial and political, was merely dicta.
See 31 U.S. at 551, 554-56.
37
We reach the same conclusion regarding the Court’s
statement in Worcester that the United States, by the Supremacy
Clause, “has adopted and sanctioned the previous treaties with
the Indian nations.” See id. at 559. These comments are not
binding precedent in the case before us because the Court was
referring to treaties made after the colonies declared their
independence from Great Britain.
We also observe that none of the other federal court
decisions cited by the Tribe holds that Indian treaties made
with the British Crown are matters of federal law. Because
those courts did not decide this question, we will not discuss
their various holdings that are inapposite to the issue before
us. We simply note that many of these cases apply federal law
to federal treaties, and others apply federal law to claims
asserted under the Nonintercourse Act and other federal
statutes. See, e.g., Montana v. Blackfeet Tribe of Indians, 471
U.S. 759 (1985) (addressing state’s power to tax Indian royalty
interests arising out of leases executed after adoption of
Indian Mineral Leasing Act of 1938); Oneida Indian Nation v.
County of Oneida, 414 U.S. 661 (1974) (reviewing power of
federal courts to hear Indian claims arising out of
Nonintercourse Act); Johnson v. M’Intosh, 21 U.S. 543 (1823)
(determining power of federal government to extinguish Indian
title to land); Oneida Indian Nation v. New York, 860 F.2d 114538
(2d Cir. 1988) (construing treaties entered into by federal
government after Revolution but before adoption of
Constitution). Therefore, upon consideration of the Tribe’s
arguments, we hold that the Treaty is not federal law.
The circuit court, by its holding that Virginia law governs
claims asserted under the Treaty, implicitly held that the
Treaty is valid and enforceable as Virginia law. However, we
are not required to decide the issue whether the Treaty is valid
and enforceable Virginia law, because neither the Commonwealth
nor the City has assigned cross-error to the circuit court’s
holding.17 Thus, given our holding that the Treaty is not
federal law, the circuit court’s holding that the Tribe’s Treaty
claims arise under Virginia law has become the law of the case.
See Commonwealth v. Luzik, 259 Va. 198, 206, 524 S.E.2d 871, 876
(2000); Pollard & Bagby, Inc. v. Pierce Arrow, L.L.C., 258 Va.
524, 527-28, 521 S.E.2d 761, 763 (1999).
Governed by Virginia law, we now consider the
Commonwealth’s argument that, as sovereign, it is immune from
suit on the Tribe’s Treaty claims. The Tribe does not respond
17
We note that the Tribe’s first assignment of error
states: “The Trial court erred when it held that the Tribe’s
claims arising under the 1677 Treaty at Middle Plantation arise
under Virginia, rather than federal law.” As we have discussed,
the essence of the Tribe’s claim under this assignment of error
is that the Treaty is federal law, and that the trial court
erred in failing to reach this conclusion. Therefore, we do not
consider this assignment of error as including a separate
assertion that Virginia law also is inapplicable.
39
to the Commonwealth’s assertion of sovereign immunity, but
separately maintains that because the Tribe sought injunctive
relief against the Board’s Executive Secretary, the exception
provided in Ex parte Young, 209 U.S. 123 (1908), applies in this
case to permit suit against him.
In resolving these issues, we first observe that the
doctrine of sovereign immunity protects the Commonwealth from
interference with the performance of its governmental duties and
preserves the Commonwealth’s ability to control its funds,
properties, and instrumentalities. City of Chesapeake v.
Cunningham, 268 Va. 624, 633, 604 S.E.2d 420, 426 (2004); City
of Virginia Beach v. Carmichael Dev. Co., 259 Va. 493, 499, 527
S.E.2d 778, 781 (2000); Hinchey v. Ogden, 226 Va. 234, 240, 307
S.E.2d 891, 894 (1983). As a general rule, the Commonwealth is
immune both from actions at law for damages and from suits in
equity to restrain governmental action or to compel such action.
Hinchey, 226 Va. at 239, 307 S.E.2d at 894; Virginia Bd. of Med.
v. Virginia Physical Therapy Ass’n, 13 Va. App. 458, 464, 413
S.E.2d 59, 63 (1991).
Only the General Assembly, acting in its capacity of making
social policy, can abrogate the Commonwealth’s sovereign
immunity. Luzik, 259 Va. at 206, 524 S.E.2d at 876. A waiver
of sovereign immunity will not be implied from general statutory
language but must be explicitly and expressly stated in the
40
statute. Hinchey, 226 Va. at 241, 307 S.E.2d at 895; Elizabeth
River Tunnel Dist. v. Beecher, 202 Va. 452, 457, 117 S.E.2d 685,
689 (1961); see Rector and Visitors of the University of
Virginia v. Carter, 267 Va. 242, 244-45, 591 S.E.2d 76, 78
(2004).
Applying these principles, we conclude that the
Commonwealth is immune from suit on the Tribe’s separate Treaty
claims. The General Assembly has not waived the Commonwealth’s
immunity from suits of this nature and, in the absence of such
an express waiver, the Commonwealth cannot be held liable on
those claims.
We also hold that the Board’s Executive Secretary is immune
from suit. As we explained in Messina v. Burden, 228 Va. 301,
308, 321 S.E.2d 657, 661 (1984), the purposes of the doctrine of
sovereign immunity cannot be achieved by affording protection
solely to the sovereign itself, because the Commonwealth can act
only through its individual employees. If every government
employee were subject to suit, the Commonwealth would be as
hampered in its operations as if it were the actual subject of
the suit. Id. Thus, high-level governmental officials
generally have been afforded absolute immunity. Id. at 309, 321
S.E.2d at 661. Here, we conclude that Robert G. Burnley, as
Executive Secretary of the Water Control Board, occupies a high-
41
level governmental position that entitles him to immunity from
suit in his official capacity.
Our conclusion in this regard is not altered by the Supreme
Court’s decision in Ex parte Young. There, the Supreme Court’s
holding allowed a suit against certain state officials who were
sued in their official capacities for prospective injunctive
relief to prevent future violations of federal law. 209 U.S. at
159-60. The rationale for the Court’s decision was that state
officials are not permitted to act in violation of the federal
constitution. Id.More recently, in Verizon Md., Inc. v. Public Serv. Comm’n,
535 U.S. 635, 645 (2002), the Supreme Court further explained
the doctrine of Young, stating that a court need only inquire
whether the complaint alleges an ongoing violation of federal
law and seeks relief fairly characterized as prospective. Here,
based on our holding that the Treaty is not federal law and the
absence of any alleged violation of federal constitutional
rights, we conclude that the remaining portions of the present
suit do not allege a violation of federal law. Therefore,
Burnley is not subject to suit under the doctrine of Young.
Because the Commonwealth and its agents are not subject to
suit on the Tribe’s separate Treaty claims, our consideration of
the Tribe’s second assignment of error relates only to the City,
the remaining defendant in this case. In its second assignment
42
of error, the Tribe asserts that the circuit court erred when it
held that it lacked jurisdiction to consider the Tribe’s
separate Treaty claims. In its final order, the circuit court
stated that “[t]he Court does not have jurisdiction to review
gubernatorial decisions concerning the 1677 Treaty at Middle
Plantation.”
Although the circuit court’s order did not explain further
this aspect of its decision, we conclude that the court was
referring to the terms of the Treaty itself, which provide for
recourse to “His Majesties Governour” for certain types of
disputes. Article V addresses breaches and violations of the
Treaty by “the English” against the Indians, stating:
That the said Indians be well Secured and Defended in
their Persons, Goods and Properties; against all hurts
and injuries of the English; and that upon any breach
or violation, hereof the aggrieved Indians do in the
first place repair and Address themselves to the
Governour, acquainting him therewith (without rashly
and suddenly betaking themselves to any Hostile course
for Satisfaction) who will Inflict such Punishment on
the willful Infringers hereof, as the Laws of England
or this Countrey permit, and as if such hurt or injury
had been done to any Englishman; which is but just and
reasonable, they owning themselves to be under the
Allegiance of His most Sacred Majesty.18
Treaty at Middle Plantation With Tributary Indians After
Bacon’s Rebellion, May 29, 1677, reprinted in 4 Early
18
Article XVIII addresses disputes among the various
Indian tribes, “one against another,” and therefore is not
applicable here.
43
American Indian Documents: Treaties and Laws, 1607-1789, at
83-84 (Alden T. Vaughan & W. Stitt Robinson, eds. 1983).
Under these terms, the Indians were entitled to protection
from any “hurts and injuries of the English,” and upon a breach
or violation of this provision, the Indians were required to “in
the first place” inform the Governor of their injuries. The
Governor was required to respond “as the Laws of England or this
Countrey permit, and as if such hurt or injury had been done to
any Englishman.”
We consider the Treaty’s terms in their historical context.
At the time the Treaty was made, the Governor and his Council
exercised executive, legislative, and judicial powers. During
this period, the General Assembly also exercised a variety of
powers, and the Governor’s Council sat as the upper house of the
legislature. George Lewis Chumbley, Colonial Justice in
Virginia: The Development of a Judicial System, Typical Laws and
Cases of the Period 3-4 (1938); see generally Legislative
Journals of the Council of Colonial Virginia in Three Volumes
(H. R. McIlwaine ed., 1918); Minutes of the Council and General
Court of Colonial Virginia, 1622-1632, 1670-1676 (H. R.
McIlwaine ed., 1924).
Because there was no separate judicial branch of government
at that time, the Treaty’s direction that the Indians repair to
the Governor was simply a command that they seek a peaceful
44
solution under the law for any breach of their rights under the
Treaty. Moreover, the language of the Treaty itself guaranteed
to the Indians the right to obtain full relief as permitted
under the law.
The plain terms of Article V do not restrict the Tribe’s
recourse under the law but guarantee such legal recourse “as if
such hurt or injury had been done to any Englishman.”
Therefore, the circuit court’s holding that it lacked
jurisdiction “to review gubernatorial decisions” misinterpreted
the scope of the Tribe’s rights under Article V and unduly
restricted the court’s view of its own general jurisdiction.
Accordingly, we hold that the circuit court had jurisdiction to
consider the Tribe’s separate Treaty claims asserted against the
City.
Based on our remand of these claims to the circuit court,
we do not consider the City’s remaining argument that the water
protection permit, as a matter of law, could not violate the
Tribe’s Treaty rights. The City may raise this argument in the
proceedings on remand, in addition to any other defenses the
City chooses to assert.
For these reasons, we will affirm the Court of Appeals’
judgment in the APA appeals. On the separate Treaty claims
transferred to us from the Court of Appeals, we will affirm that
portion of the circuit court’s judgment holding that Virginia
45
law governs the Treaty, reverse the court’s judgment that it
lacked jurisdiction to consider the separate Treaty claims the
Tribe asserts against the City, and remand those Treaty claims
for further proceedings consistent with the principles expressed
in this opinion.
Record No. 042196 – Affirmed.
Record No. 042198 – Affirmed.
Record No. 042826 – Affirmed in part,
reversed in part,
and remanded.
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