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

§ 2.2-4000 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). 
3

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. 
4

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 
5

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. 
6

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. 
7

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 
8

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. 
9

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. 
10

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 
11

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. 
12

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 
13

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 
14

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 
15

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 
16

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 
17

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. BrownForman 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. 
18

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 
19

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 
20

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., 
21

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.” 
22

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 
23

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 
24

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. 
25

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. 
26

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 
27

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 
28

§ 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 
29

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.”
30

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 
31

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 
32

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. 
33

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 
34

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. 
35

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.” 
36

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. 
37

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. 
38

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 
39

(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. 
40

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 
41

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-
42

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 
43

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. 
44

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 
45

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 
46

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.