EarthRights has filed two amicus briefs in the appeal of Sarei v. Rio Tinto PLC, a case arising out of the Rio Tinto mining company’s operations on the island of Bougainville, in Papua New Guinea (PNG).  The plaintiffs allege that Rio Tinto abetted the PNG military forces in committing various abuses against local indigenous groups, including Alien Tort Statute (ATS) violations such as crimes against humanity, racial discrimination, and pollution in violation of the law of the sea.

The case was originally dismissed by the district court under the “political question” doctrine, which precludes courts from hearing disputes that should be dealt with by Congress or the President (the “political branches”).  On appeal, a three-judge panel of the Ninth Circuit Court of Appeals initially reversed the dismissal, finding no political question problem; one judge dissented, arguing that the plaintiffs should have been required to exhaust domestic remedies in PNG before invoking the ATS.  Subsequently, the judges of the Ninth Circuit voted to rehear the case “en banc,” before a panel of eleven judges.  In such a rehearing, all of the legal issues in the case may be reconsidered.

EarthRights submitted an amicus brief on October 24, 2007, to the en banc panel, addressing two issues.  First, EarthRights argued that claims under the ATS should be evaluated according to federal law standards, including rules for conspiracy and agency liability.  Second, EarthRights argued that if an exhaustion of local remedies requirement applied for ATS cases, its standards should mirror the exhaustion standards specified by Congress for the Torture Victim Protection Act. The en banc panel’s opinion addressed only the exhaustion issue; a split panel found that there was an exhaustion requirement, but that it could be applied by judges as a “prudential” matter. The Ninth Circuit then asked the district court judge to evaluate whether prudential exhaustion should be required in this case. The district court concluded that exhaustion was not required for most of the claims in the case, and the defendants then appealed to the Ninth Circuit again.

On January 29, 2010, EarthRights filed a supplemental amicus brief to the en banc panel in the new appeal, arguing that federal law also determines the rules of corporate liability and aiding and abetting liability in ATS cases, and arguing that courts can hear ATS cases arising abroad.

On October 25, 2011, the en banc panel of the Ninth Circuit issued a decision reversing the dismissal of the case and allowing claims for genocide and war crimes to proceed against Rio Tinto. The court ruled that corporations could be sued for violations of these international law norms and that aiding and abetting liability also applied, although the court did not decide the standard for such liability. The court also rejected a number of other arguments for dismissal, including that the case presented “political” questions, that it would require determining the validity of an official act of a foreign government, that it was beyond the jurisdiction of the federal courts under the Constitution, and that the ATS cannot apply to acts outside the United States.

If there are no further attempts for extraordinary procedures (such as an additional petition for rehearing, or a petition to the Supreme Court), the case will return to the district court for further litigation.