(CN) – A divided 9th Circuit ruled that U.S. courts might not be the right venue for Papua New Guinea residents to litigate their claims that British mining company Rio Tinto incited a savage 10-year civil war.
A plurality of judges remanded the case to determine whether “prudential exhaustion analysis” applies and, if so, whether the plaintiffs must exhaust their remedies in Papua New Guinea before proceeding in U.S. courts.
The case stems from Rio Tinto’s decision to open a mine in Bougainville, Papua New Guinea (PNG). Natives complained about the pollution and the company’s practice of paying black native miners less than white workers recruited off the island.
Some residents tried to sabotage the mine, but the PNG army mounted an attack that launched a bitter civil war from 1990 to 2000. The plaintiffs claimed the army, under Rio Tinto’s direction, violated international human rights law by bombing civilian targets, burning villages, and raping and pillaging.
In August 2006, a three-judge panel found that most of the residents’ claims could be tried in the United States, and that the survivors are not required to exhaust their local remedies under the Alien Tort Claims Act.
After rehearing, the full court declined to impose an “absolute requirement of exhaustion,” but said that some claims “are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law.”
“Where the ‘nexus’ to the United States is weak,” Judge McKeown wrote, “courts should carefully consider the question of exhaustion, particularly – but not exclusively – with respect to claims that do not involve matters of ‘universal concern.'”
Judges Silverman and Schroeder joined the plurality opinion, and Judges Bea and Callahan concurred.
Judges Ikuta, Kleinfeld, Reinhardt, Pregerson, Berzon and Rawlinson dissented.
“I would affirm the dismissal of this case,” Ikuta wrote, “on the ground that we exceed the authority granted by Congress and the limits imposed by the Constitution’s separation of powers by applying the (Alien Tort Claims Act) to a dispute not involving United States territory or citizens.”