Alien Tort Claims Act Update: Ninth Circuit Reinstates Rio Tinto Lawsuit in the United States

August 10, 2006

On Monday, August 7, 2006, the Ninth Circuit reinstated a lawsuit brought by residents of Bougainville, Papua New Guinea (“PNG”) against London-based Rio Tinto PLC (“Rio Tinto”) under the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”). The lawsuit alleges that these residents are victims of numerous violations of international law, including racial discrimination, environmental devastation, war crimes and crimes against humanity, resulting from Rio Tinto’s Bougainville mining operations and Rio Tinto’s conduct during the ten-year civil conflict following an uprising at its mine.

The case Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002) was dismissed on the grounds that all of the plaintiffs’ claims presented nonjusticiable political questions. Specifically, because the U.S. government had issued a Statement of Interest, which had expressed concern that adjudication of these claims would have potentially serious implications on, among others, U.S.-PNG foreign relations, the case implicated (1) the impossibility of the court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government and (2) the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 

In reinstating the case, the Ninth Circuit, guided by separation of powers principles and precedent, concluded that although this case presents some risk to the Bougainville peace process, the above-mentioned factors were not, in fact, implicated. 

The court on Monday also concluded that (1) most of the plaintiffs’ claims can be tried in the United States under the ATCA, (2) the district court erred in dismissing the plaintiffs’ racial discrimination claim and United Nations Convention on the Law of the Sea claim under the act of state doctrine and (3) the district court was correct in concluding that the ATCA does not require exhaustion of local remedies.

This decision comes after the Supreme Court’s opinion in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), which discussed when claims are cognizable under the ATCA. Thus, the Ninth Circuit’s reinstatement of the ATCA claims against Rio Tinto is further support for granting jurisdiction to U.S. courts over claims of war crimes and other violations of international humanitarian law.

Gibson, Dunn & Crutcher’s International Trade Regulation and Compliance Practice Group is available to assist with any questions you may have regarding these issues.  For further information, please contact Judith A. Lee (202-887-3591) in the firm’s Washington, DC office or Paytre R. Topp (213-229-7966) in the firm’s Los Angeles office.

© 2006 Gibson, Dunn & Crutcher LLP

The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.