1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 ALEXIS HOLYWEEK SAREI, PAUL E. ) CASE NO. CV 00-11695 MMM (AIJx) 12 NERAU, THOMAS TAMUASI, PHILLIP ) MIRIORI, GREGORY KOPA, ) 13 METHODIUS NESIKO, ALOYSIUS ) AMENDED ORDER GRANTING MOSES, RAPHAEL NINIKU, GABRIEL ) DEFENDANTS’ MOTION TO DISMISS 14 TAREASI, LINUS TAKINU, LEO WUIS, ) MICHAEL AKOPE, BENEDICT PISI, ) 15 THOMAS KOBUKO, JOHN TAMUASI, ) NORMAN MOUVO, JOHN OSANI, BEN ) 16 KORUS, NAMIRA KAWONA, JOANNE ) BOSCO, JOHN PIGOLO, and ) 17 MAGDELENE PIGOLO, individually and ) on behalf of themselves and all others ) 18 similarly situated, ) ) 19 Plaintiff, ) ) 20 vs. ) ) 21 RIO TINTO plc and RIO TINTO ) LIMITED, ) 22 ) Defendants. ) 23 ) ) 24 ) 25 Plaintiffs, who are current and former residents of the island of Bougainville in Papua New 26 Guinea, filed this putative class action against defendants Rio Tinto plc and Rio Tinto Limited under 27 the Alien Tort Claims Act, 28 U.S.C. § 1350. Plaintiffs allege that defendants’ mining operations 28 1 on Bougainville destroyed the island’s environment, harmed the health of its people, and incited a 2 ten-year civil war, during which thousands of civilians died or were injured. They assert that 3 defendants are guilty of war crimes and crimes against humanity, as well as racial discrimination and 4 environmental harm that violates international law. Defendants have moved to dismiss the 5 complaint, arguing that the court lacks subject matter jurisdiction and that plaintiffs have failed to 6 state a claim upon which relief can be granted. Defendants contend alternatively that the action 7 should be dismissed on forum non conveniens grounds, because its raises questions that are 8 nonjusticiable under the act of state or political question doctrines, and because the court should 9 abstain under the doctrine of international comity. 10 11 I. FACTUAL AND PROCEDURAL BACKGROUND1 12 Bougainville is an island in the South Pacific located just off the main island of Papua New 13 Guinea (“PNG”).2 Like other regions of PNG, Bougainville is rich in natural resources, including 14 minerals such as copper and gold.3 Bougainville’s rivers are also a key natural resource.4 Plaintiffs 15 allege that, for many years, one of these – the Jaba River – “was a major source of food for many 16 residents of Bougainville, and use of the riches of the Jaba River was an integral part of the way of 17 life of many.”5 18 19 20 21 22 23 1The facts recited in this section are taken from the first amended complaint, as defendants do not, for purposes of their jurisdictional attack, take issue with the facts alleged by plaintiffs. 24 2 25 See First Amended Complaint, ¶ 2. 26 3See id. 27 4See id., ¶ 99. 28 5Id. 2 1 Defendants Rio Tinto plc,6 a British corporation, and Rio Tinto Limited,7 an Australian 2 corporation (collectively “Rio Tinto Group” or “Rio Tinto”), are part of an international mining 3 group headquartered in London, which operates over sixty mines and processing plants in forty 4 countries worldwide, including the United States.8 During the 1960’s, the Rio Tinto Group decided 5 to build a mine in the village of Panguna on Bougainville.9 Plaintiffs allege that Rio Tinto needed 6 the cooperation and assistance of PNG’s government to do so, because constructing the mine 7 necessitated displacing villages and destroying massive portions of the rain forest.10 To obtain the 8 required assistance, Rio Tinto allegedly offered the government 19.1% of the mine’s profits.11 PNG 9 accepted, and plaintiffs allege that thereafter, the mine became “a major source of income for PNG 10 and provided [an] incentive for the PNG government to overlook any environmental damage or other 11 atrocities Rio committed.” They also assert that “[t]he financial stake of the PNG government 12 effectively turned the copper mine into a joint venture between PNG and Rio [Tinto] and allowed 13 Rio [Tinto] to operate under color of state law.”12 14 To hold its interest in and operate the Panguna Mine, Rio Tinto established Bougainville 15 Copper Limited (“BCL”), a Papua New Guinea company and a majority-owned subsidiary of Rio 16 Tinto Limited.13 So that it could operate the mine, the Australian Colonial Administration14 granted 17 18 6Before June 1997, Rio Tinto plc was named RTZ Corporation plc or “RTZ.” (See id., ¶ 19 42.) 20 7Before June 1997, Rio Tinto Limited was called Conzinc Riotinto of Australia or “CRA.” (See id., ¶ 43.) 21 8See id., ¶¶ 50-51. 22 9 23 See id., ¶ 3. 24 10See id., ¶ 4. 25 11See id. 26 12Id., ¶ 4:2-5. 27 13See id., ¶ 101. Although the Rio Tinto Group has reduced its holdings in Rio Tinto 28 Limited (and thus BCL) over the years, plaintiffs allege that it “exercised complete, effective and 3 1 BCL leases over 12,500 hectares of Bougainvillean land.15 In 1967, BCL and the PNG government 2 entered into a formal agreement “concerning the development of certain mineral deposits in 3 Bougainville,” which was ultimately codified as the “Mining (Bougainville Copper Agreement) Act 4 of 1974” (“the Copper Act”).16 Among other things, the Copper Act regulated the disposal of waste 5 from mining operations, and vested in PNG’s Department of Minerals and Energy the power to 6 control and monitor pollution generated by the mine.17 7 A. Impact Of The Mine On The People And Environment Of Bougainville 8 Plaintiffs assert that, from the inception of the project, Bougainville residents resisted Rio 9 Tinto’s efforts to build the mine. When a Rio Tinto exploration team set up camp on Bougainville 10 in 1965, islanders allegedly destroyed the camp and expelled the team.18 The Australian government 11 purportedly responded by imprisoning approximately two hundred Bougainvilleans.19 Islanders also 12 refused to surrender land to Rio Tinto. A group of Bougainvilleans – the Rorovana – were allegedly 13 told that if they did not accept Rio Tinto’s offer of $105 per acre and $2 per coconut tree, their land 14 15 16 17 pervasive control” over the corporation at all times relevant to their claims. (Id., ¶ 46.) Indeed, as of 1999, they assert that the Rio Tinto Group still owned a 53.6% interest in BCL. (Id.) 18 14Papua New Guinea was a colony of Australia until 1975. 19 15First Amended Complaint, ¶ 101. 20 16 21 See Appendix to Defendants’ Request for Judicial Notice in Support of Motion to Dismiss (“Defs.’ RJN”), Ex. JJ. Under Rule 201 of the Federal Rules of Evidence, a court may take judicial 22 notice of facts that are either “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot 23 reasonably be questioned” without converting a motion to dismiss into a motion for summary 24 judgment. FED.R.EVID. 201. See also Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). 25 17 26 See id., Ex. JJ, ¶ 15. 18 27 See First Amended Complaint, ¶ 104. 28 19See id. 4 1 would be taken without compensation.20 When the Rorovana refused, plaintiffs assert that 2 “[o]ne hundred riot police, especially trained and equipped by the Australian 3 government, were flown to Bougainville to help the surveyors mark out the areas of 4 land owned by the Rorovana people that [BGL] wanted. On August 1, 1969, 5 surveyors, supported by police wearing gas masks and carrying truncheons, drove in 6 the first concrete peg. On August 5, 1969, riot police carrying batons, shields, 7 rifles and respirators attacked a group of about 65 unarmed villagers, men, woman 8 and children. The police fired a barrage of 150 tear gas cannisters at them, yet the 9 people stood firm. Then the police charged them with their batons, clubbing both 10 men and women who were forced off their land.”21 11 In addition to forcing many villagers off their land, Rio Tinto allegedly destroyed huge portions of 12 the rain forest while constructing the mine.22 13 By 1972, construction was complete, and operations at the Panguna Mine commenced.23 The 14 mine pit was approximately one-half kilometer deep and seven kilometers wide.24 Plaintiffs allege 15 that each day, approximately 300,000 tons of ore and waste rock were blasted, excavated, and 16 removed from the pit,25 producing 180,000 tons of copper concentrate and 400,000 ounces of gold 17 annually.26 Jean Michael Cousteau, who observed the mine in 1988, described it as follows: 18 “Surrounded by dense rain forest and tropical stillness lies one of the world’s largest 19 man-made holes in the ground. When the ore is completely extracted, the pit will 20 21 20See id., ¶ 105. 22 21Id., ¶¶ 106-07. 23 22See id., ¶ 125. 24 23See id., ¶ 7. 25 24 26 See id., ¶ 127. 25 27 See id. 28 26See id., ¶ 138. 5 1 measure nearly 8,000 feet across and around 1,200 feet deep. It would take two 2 Golden Gate Bridges to span the hole, and if the Empire State Building were set at 3 the bottom, only the antenna on top would rise above the rim of the mine. 4 Though it amounts to a vast treasury of copper . the ore is extremely low grade. 5 . Thus, to make the mine profitable, it must turn out a tremendous volume. That 6 requires an operation using immense equipment and 4,000 people working in three 7 eight-hour shifts seven days a week.”27 8 Within ten years of commencing operations, the Panguna Mine was one of the largest copper mines 9 in the world.