Sarei v. Rio Tinto, Pl

550 F.3d 882 (9th Cir. 2008)

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Nature of the Case

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Facts

Rio Tinto (D) is an international mining group headquartered in London. D sought to build a mine in the village of Pangunaon Bougainville. D offered the PNG government 19.1 percent of the mine's profits to obtain its assistance in this venture. Operations commenced in 1972. The mine produced 180,000 tons of copper concentrate and 400,000 ounces of gold annually. The resulting waste products from the mine polluted Bougainville's waterways and atmosphere and undermined the physical and mental health of the island's residents. The islanders who worked for D, all of whom were black, were paid lower wages than the white workers recruited off island and lived in 'slave-like' conditions. In November 1988, Bougainvilleans engaged in acts of sabotage that forced the mine to close. D sought the assistance of the PNG government to quell the uprising and reopen the mine. The PNG army mounted an attack on February 14, 1990, killing many civilians. In response, Bougainvilleans called for secession from PNG, and 10 years of civil war ensued. PNG allegedly committed atrocious human rights abuses and war crimes at the behest of D, including a blockade, aerial bombardment of civilian targets, burning of villages, rape, and pillage. Ps filed suit in federal district court seeking compensatory, punitive and exemplary damages, as well as equitable and injunctive relief on environmental contamination and medical monitoring claims, and attorney's fees and costs. They also seek disgorgement of all profits earned from the mine. At issue are questions under the political question doctrine, the act of state doctrine and the doctrine of international comity. D moved to dismiss the first amended complaint. The district court dismissed the first amended complaint. It held that Ps had stated cognizable ATCA claims for racial discrimination, crimes against humanity and violations of the laws of war, but that of the environmental claims, only the violation of the United Nations Convention on the Law of the Sea ('UNCLOS') was cognizable under the ATCA. The court dismissed all Ps' claims as presenting nonjusticiable political questions. The court alternatively dismissed the racial discrimination and UNCLOS claims under the act of state doctrine and the doctrine of international comity. It also held that the ATCA did not require exhaustion. This was an en banc rehearing related to exhaustion.