Island Pollution Suit Belongs in State Court

     (CN) – The 9th Circuit ruled that a lawsuit against a Nevada mining company was improperly removed to federal court, as none of the company’s alleged environmental “skullduggery” on a Philippine island involved the foreign government.




     The government of Marinduque, an island province in the Philippines, sued Placer Dome Corp. in Nevada state court in 2005, accusing the mining company of polluting the island for 30 years.
     The province said Placer Dome caused two “cataclysmic environmental disasters” and poisoned islanders by contaminating their food and water sources before leaving the island and the mess behind.
     The province also alleged that former Philippine President Ferdinand Marcos paved the way for the catastrophe by easing environmental laws in exchange for a stake in the mine.
     A federal judge in Nevada ruled that the “act of state doctrine” gave the lawsuit federal jurisdiction, because it involves a foreign government.
     Writing for the San Francisco-based appellate panel, Judge M. Margaret McKeown disagreed.
     While the province’s complaint “weaves together numerous allegations in a chronicle of skullduggery, toxic dumping, a collapsed dam that polluted the surrounding areas, a river flooded with poisonous mine tailings, and a corrupt government that facilitated this conduct,” she wrote, “nothing in the complaint would require a court to pass judgment on any official act of the Philippine government.”
     Quoting the U.S. Supreme Court, McKeown found that act-of-state issues only arise when the outcome of the case relies on an official action by a foreign sovereign.
     “When that question is not in the case, neither is the act of state doctrine,” she wrote.
     Even with the allegations that an ex-president may have had a hand in the alleged crimes, the case does not rely on those allegations, McKeown wrote.
     “Placer Dome argues that the act of state doctrine bars this suit because the complaint is premised upon conduct that occurred pursuant to governmental permits and other acts or omissions by the Philippine government,” McKeown wrote. But “none of the supposed acts of state identified by the district court is essential to the province’s claims.”
     The complaint may be rife with references to the Philippine government, Philippine law, and the “government’s complicity in the claimed damage,” McKeown wrote, but the “exercise of federal-question removal jurisdiction requires more – it requires the assertion of a federal question on the face of the province’s properly pleaded complaint or a disputed, substantial federal issue that does not disturb any congressionally approved balances of state or federal judicial responsibilities.”
     McKeown added: “Just as raising the specter of political issues cannot sustain dismissal under the political question doctrine, neither does a general invocation of international law or foreign relations mean that an act of state is an essential element of a claim.”

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