Alliance to Save the Mattaponi v. Commonwealth

• Court: Supreme Court of Virginia
• Decided: November 4, 2005
• Docket: 042196
• Status: Published

Opinion

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.

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 1145

38 (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.