The Rappahannock Tribe’s lawsuit over water will move forward.
In Richmond County Circuit Court Monday, the tribe’s lawyers challenged a state permit that would allow Caroline County to withdraw up to nine million gallons of water a day from the Rappahannock River. They say that would significantly impact their cultural heritage and historic fishery and oystering grounds.
Outside a tiny courthouse in Warsaw, just a few miles from Rappahannock ancestral lands on Virginia's Northern Neck, Chief Anne Richardson breathed a sigh of relief. Behind her, a team of attorneys, all volunteers, had just prevented her Tribe’s case against the state from being dismissed.
Sam Alexander, a retired DOJ attorney, argued the Tribe’s case before Judge John S. Marsh. Part of that argument was based on the Tribe’s right to beneficial uses of the river under the 1677 Treaty of Middle Plantation with the British Crown.
"And the state was arguing: Because there is a connection to the treaty, that those are really breach of treaty claims, which an earlier Virginia Supreme Court case said could not be brought against the state. So, we were arguing that that was not true," Alexander said after Monday's hearing.
That other case involved the Mattaponi Tribe preventing a reservoir project from flooding thousands of acres of land near their reservation.
At one point Judge Marsh asked about a Virginia Marine Resources Commission study on mussels in the river. He said state code requires DEQ to consider other agencies studies.
"Part of our complaint was about the decision to return the river to the Mattaponi and not to the Rappahannock River, that was inadequately studied," said John Brett Grosko with the Chesapeake Legal Alliance. "This is just one of the things that we allege the DEQ should have done better and there should have been a more careful look.
And while the day was a good one for the Tribe, their Chief is not letting her guard down.
"I'm still concerned and always concerned until we get definitive decisions on them not being able to withdraw not being gallons a day out of our river," Chief Anne Richardson said.