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http://laws.findlaw.com/5th/9830235cv0.html |
and all others similarly situated, ET AL.,
Plaintiffs,
TOM BEANAL, on behalf of himself and all
others similarly situated,
Plaintiff-Appellant,
versus
FREEPORT-MCMORAN, INC., AND FREEPORT
MCMORAN COPPER AND GOLD, INC.
Defendants-Appellees.
Before KING, Chief Judge, and SMITH and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Tom Beanal ("Beanal") brought suit against the defendants in federal district court foralleged violations of international law. The district court dismissed Beanal's claims pursuant toFed.R.Civ.Proc. 12(b)(6). After a careful review of Beanal's pleadings, we affirm the district court.
This case involves alleged violations of international law committed by domestic corporationsconducting mining activities abroad in the Pacific Rim. Freeport-McMoran, Inc., and Freeport-McMoran Copper & Gold, Inc., ("Freeport"), are Delaware corporations with headquarters in NewOrleans, Louisiana. Freeport operates the "Grasberg Mine," an open pit copper, gold, and silvermine situated in the Jayawijaya Mountain in Irian Jaya, Indonesia. The mine encompassesapproximately 26,400 square kilometers. Beanal is a resident of Tamika, Irian Jaya within theRepublic of Indonesia (the "Republic"). He is also the leader of the Amungme Tribal Council ofLambaga Adat Suki Amungme (the "Amungme"). In August 1996, Beanal filed a complaint againstFreeport in federal district court in the Eastern District of Louisiana for alleged violations of international law. Beanal invoked jurisdiction under (1) 28 U.S.C. § 1332, (2) the Alien Tort Statute,28 U.S.C. § 1350 , and (3) the Torture Victim Protection Act of 1991, sec. 1, et seq. , 28 U.S.C. §1350 note. In his First Amended Complaint, he alleged that Freeport engaged in environmentalabuses, human rights violations, and cultural genocide. Specifically, he alleged that Freeport miningoperations had caused harm and injury to the Amungme's environment and habitat. He furtheralleged that Freeport engaged in cultural genocide by destroying the Amungme's habitat andreligious symbols, thus forcing the Amungme to relocate. Finally, he asserted that Freeport's privatesecurity force acted in concert with the Republic to violate international human rights. Freeportmoved to dismiss Beanal's claims under Fed.R.Civ.Proc.12(b)(6). The district court in April 1997issued a thorough forty-nine page Opinion and Order dismissing Beanal's claims without prejudiceand with leave to amend. See Beanal v. Freeport-McMoran , 969 F.Supp. 362 (E.D.La. 1997). Pursuant to Rule 12(e), the district court instructed Beanal to amend his complaint to state morespecifically his claims of genocide and individual human rights violations. In August 1997, thedistrict court granted Freeport's motion to strike Beanal's Second Amended Complaint becauseBeanal inappropriately attempted to add third parties. At the motion to strike hearing, the courtagain instructed Beanal to plead facts sufficient to support his allegations of genocide and individualhuman rights violations. In March 1998, the district court granted Freeport's motion to strikeBeanal's Third Amended Complaint and dismissed his claims with prejudice. Beanal now appealsthe district court's rulings below. (1)
We review the district court's dismissal of a complaint for failure to state a claim upon whichrelief can be granted de novo. See Lowrey v. Texas A & M University System , 117 F.3d 242, 246(5 th Cir. 1997). A motion to dismiss under rule 12(b)(6) "is viewed with disfavor and is rarelygranted." Kaiser Aluminum & Chem. Sales v. Avondale Shipyards , 677 F.2d 1045, 1050 (5thCir.1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleadedin the complaint must be taken as true. Campbell v. Wells Fargo Bank , 781 F.2d 440, 442 (5thCir.1986). The district court may not dismiss a complaint under rule 12(b)(6) "unless it appearsbeyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitlehim to relief." Conley v. Gibson , 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Blackburn , 42 F.3d 925, 931 (5 th Cir. 1995). This strict standard of review under rule 12(b)(6) hasbeen summarized as follows: "The question therefore is whether in the light most favorable to theplaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief."Charles A.. Wright & Arthur R. Miller, Federal Practice and Procedure 1357, at 601(1969).
Rule 8(a) of the Federal Rules of Civil Procedure requires a short and plain statement of theclaim showing that the plaintiff is entitled to relief. Pursuant to Rule 8(a), a complaint will bedeemed inadequate only if it fails to (1) provide notice of circumstances which give rise to the claim,or (2) set forth sufficient information to outline the elements of the claim or permit inferences to bedrawn that these elements exist. See General Star Indemnity, Co. v. Vesta Fire Ins., Corp. , 173 F.3d946, 950. (5 th Cir. 1999). If a complaint is ambiguous or does not contain sufficient information toallow a responsive pleading to be framed, the proper remedy is a motion for a more definitestatement under Rule 12(e). See 5 Wright & Miller, Fed. Practice & Procedure: Civil § 1356at 590-591. Finally, a complaint, which contains a "bare bones" allegation that a wrong occurredand which does not plead any of the facts giving rise to the injury, does not provide adequate notice. Walker v. South Cent. Bell Tel. Co. , 904 F.2d, 275, 277 (5 th Cir. 1990). Because the claims raisedin Beanal's First and Third Amended Complaints overlap, we address them together. (2)
Beanal claims that Freeport engaged in conduct that violated the Alien Tort Statute (the"ATS" or "§1350"). Under §1350:
The district courts shall have original jurisdiction of any civil actionby an alien for a tort only, committed in violation of the law ofnations or a treaty of the United States.
Section 1350 confers subject matter jurisdiction when the following conditions are met; (1) an aliensues, (2) for a tort, (3) that was committed in violation of the "law of nations" or a treaty of theUnited States. See Kadic v. Karadzic , 70 F.3d 232, 238 (2d Cir. 1995). Beanal does not claim thatFreeport violated a United States treaty. Thus, the issue before us is whether Beanal states claimsupon which relief can be granted for violations under the "law of nations," i.e., international law.
We observed in 1985, "[t]he question of defining 'the law of nations' is a confusing onewhich is hotly debated, chiefly among academics." Carmichael v. United Technologies Corp. , 835F.2d 109, 113 (5 th Cir. 1985). However, in Cohen v. Harman , 634 F.2d 318, 319 (5 th Cir. 1981)(percuriam), we "held that the standards by which nations regulate their dealings with one another inter se constitutes the 'law of nations.'" These standards include the rules of conduct which govern theaffairs of this nation, acting in its national capacity, in relationships with any other nation. See id. (quoting Valanga v. Metropolitan Life Ins. Co. , 259 F.Supp. 324 (E.D. Pa. 1966)). The law ofnations is defined by customary usage and clearly articulated principles of the internationalcommunity. One of the means of ascertaining the law of nations is "by consulting the work of juristswriting professedly on public law or by the general usage and practice of nations; or by judicialdecisions recognizing and enforcing that law." See Carmichael , 835 F.2d at 113 (citing UnitedStates v. Smith , 18 U.S. (5 Wheat) 152, 160-61, 5 L.Ed. 57 (1820), see also Kadic , 70 F.2d at 238; Filartiga v. Pena-Irala , 630 F.2d 876, 880 (2d Cir. 1980). Courts "must interpret international lawnot as it was in 1789. but as it has evolved and exists among the nations of the world today." Kadic 70 F.2d at 238; Filartiga , 630 F.2d at 881. Although Beanal's claims raise complex issues ofinternational law; nonetheless, the task before us does not require that we resolve them. We areonly required to determine whether the pleadings on their face state a claim upon which relief canbe granted. Although the day may come when we will have to join other jurisdictions who havetackled head-on complex issues involving international law, "[t]his case, however, does not requirethat we stand up and be counted." Carmichael , 835 F.2d. at 113 . Beanal's allegations under theATS can be divided into three categories:(1) individual human rights violations; (2) environmentaltorts; and (3) genocide and cultural genocide. We address each in turn.
First, Beanal claims that his pleadings sufficiently state claims for individual human rightsviolations. Essentially, Beanal complains that Freeport engaged in the following conduct; (1)surveillance; (2) mental torture; (3) death threats; and (4) house arrest. See Third AmendedComplaint ¶ 25. However, Freeport argues that Beanal's allegations fail to give adequate noticeunder the federal pleading requirements. Also, Freeport claims that Beanal failed to plead therequisite state action to support his claims under the ATS. The district court found that Beanalmerely made nominal changes to his Third Amended Complaint in an attempt to comply with itsorder to provide a more definite statement of what had happened to him individually. As such, thedistrict court ruled that Beanal's complaint failed to provide a more definite statement of his claims.
After reviewing Beanal's pleadings de novo, we agree with the district court's ruling. Beanal's complaint merely makes conclusory allegations. Beanal's claims are devoid of names,dates, locations, times or any facts that would put Freeport on notice as to what conduct supportsthe nature of his claims. Furthermore, after comparing Beanal's Third Amended Complaint with hisSecond Amended Complaint, we agree with the district court's observation in that, "Beanal hasmade a superficial effort to personalize his complaint in order to comply with the court's April andAugust Order." (3) Although Beanal argues that the district court inappropriately subjected hiscomplaint to a heightened pleading standard, nonetheless, the notice requirements under Rule 8require more than "bare bone allegations that a wrong has occurred." See South Cent. Bell Tel. Co. ,904 F.2d, at 277. Because we affirm the district court's dismissal of Beanal's claims of individualhuman rights violations under the ATS on the ground that his complaint fails to provide adequatefactual specificity as to what had happened to him individually, (4) we need not address whether state-action is required to sustain an action for individual human rights violation under the ATS.
Next, Beanal argues that Freeport through its mining activities engaged in environmentalabuses which violated international law. In his Third Amended Complaint, Beanal alleges thefollowing:
FREEPORT, in connection with its Grasberg operations, depositsapproximately 100,000 tons of tailings per day in the Aghwagaon, Otomona andAkjwa Rivers. Said tailings have diverted the natural flow of the rivers and haverendered the natural waterways of the plaintiff unusable for traditional uses includingbathing and drinking. Furthermore, upon information and belief, the heavy metalcontent of the tailings have and/or will affect the body tissue of the aquatic life insaid rivers. Additionally, tailings have blocked the main flow of the Ajkwa Rivercausing overflow of the tailings into lowland rain forest vegetation destroying thesame. Third Amended Complaint ¶ 13. FREEPORT in connection with its Grasberg operations has diverted theaforesaid rivers greatly increasing the likelihood of future flooding in Timika, thehome of the plaintiff, TOM BEANAL. Id. ¶ 14. FREEPORT, in connection with its Grasberg mining operations has causedor will cause through the course of its operations 3 billion tons of "overburden" tobe dumped into the upper Wanagon and Carstensz creating the likely risk of massivelandslides directly injurious to the plaintiff. Furthermore, said "overburden" createsacid rock damage which has created acid streams and rendering the Lake Wanagonan "acid lake" extremely high in copper concentrations, . . . Id. ¶ 15.
However, Freeport argues that Beanal's allegations of environmental torts are not cognizable underthe "law of nations" because Beanal fails to show that Freeport's mining activities violate anyuniversally accepted environmental standards or norms. Furthermore, Freeport argues that it wouldbe improper for a United States tribunal to evaluate another county's environmental practices andpolicies. The district court conducted a thorough survey of various international law principles,treaties, and declarations and concluded that Beanal failed to articulate environmental torts that werecognizable under international law.
Beanal and the amici refer the court to several sources of international environmental law toshow that the alleged environmental abuses caused by Freeport's mining activities are cognizableunder international law. Chiefly among these are the Principles of International Environmental LawI: Frameworks, Standards and Implementation 183-18 (Phillip Sands ed,. 1995) ("Sands"), (5) and the Rio Declaration on Environment and Development , June 13, 1992, U.N. Doc. A/CONF. 151/5 rev.1 (1992) (the "Rio Declaration").
Nevertheless, "[i]t is only where the nations of the world have demonstrated that the wrongis of mutual and not merely several, concern, by means of express international accords, that a wronggenerally recognized becomes an international law violation in the meaning of the [ATS]." Filartiga ,680 F.2d at 888. Thus, the ATS "applies only to shockingly egregious violations of universallyrecognized principles of international law." See Zapata v. Quinn , 707 F.2d 691, 692 (2d Cir.1983)(per curiam). Beanal fails to show that these treaties and agreements enjoy universalacceptance in the international community. The sources of international law cited by Beanal and the amici merely refer to a general sense of environmental responsibility and state abstract rights andliberties devoid of articulable or discernable standards and regulations to identify practices thatconstitute international environmental abuses or torts. Although the United States has articulablestandards embodied in federal statutory law to address environmental violations domestically, see The National Environmental Policy Act (42 U.S.C. § 4321 et seq. ) and The Endangered Species Act(16 U.S.C. § 1532), nonetheless, federal courts should exercise extreme caution when adjudicating environmental claims under international law to insure that environmental policies of the UnitedStates do not displace environmental policies of other governments. Furthermore, the argument toabstain from interfering in a sovereign's environmental practices carries persuasive force especiallywhen the alleged environmental torts and abuses occur within the sovereign's borders and do notaffect neighboring countries. (6) Therefore, the district court did not err when it concluded that Beanalfailed to show in his pleadings that Freeport's mining activities constitute environmental torts orabuses under international law.
Beanal claims that Freeport engaged in acts of genocide and cultural genocide. In his FirstAmended Complaint, Beanal alleged that Freeport's mining operations caused the Amungme to bedisplaced and relocate to other areas of the country. He also alleged that Freeport's mining activitiesdestroyed the Amungme's habitat. As such, Beanal asserted that Freeport purposely engaged inactivity to destroy the Amungme's cultural and social framework. However, Freeport attackedBeanal's allegations claiming that cultural genocide is not recognized as a discrete violation ofinternational law. The district court relying chiefly on the express language of Article II of theConvention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277 (the"Convention on Genocide"), concluded that cultural genocide was not recognized in the internationalcommunity as a violation of international law. The district court then instructed Beanal to amendhis complaint to allege genocide. Specifically, the court instructed Beanal to allege facts that woulddemonstrate that "he [was] the victim of acts committed with the intent to destroy the people of theAmungme tribe . . . ." Consequently, the district court found that Beanal's Third AmendedComplaint failed to comply with its express instructions.
A review of Beanal's Third Amended Complaint reveals that his claim of genocide suffersfrom the same pleading defects that plagued his other claims of individual human rights violations. Beanal's complaint is saturated with conclusory allegations devoid of any underlying facts to supporthis claim of genocide. Although the pleading requirements under Rule 8 are to be liberallyconstrued in favor of the plaintiff, nevertheless, the rule requires more than "bare bone allegations." See Walker 904 F.2d at 277.
Notwithstanding Beanal's failure to allege facts to support sufficiently his claim ofgenocide, Beanal and the amici in their respective briefs urge this court to recognize culturalgenocide as a discrete violation of international law. Again, they refer the court to severalinternational conventions, agreements, and declarations. Nevertheless, a review of these documentsreveals that the documents make pronouncements and proclamations of an amorphous right to"enjoy culture," or a right to "freely pursue" culture, or a right to cultural development. (7) Theynonetheless fail to proscribe or identify conduct that would constitute an act of cultural genocide. As such, it would be problematic to apply these vague and declaratory international documents toBeanal's claim because they are devoid of discernable means to define or identify conduct thatconstitutes a violation of international law. Furthermore, Beanal has not demonstrated that culturalgenocide has achieved universal acceptance as a discrete violation of international law. Thus, itwould be imprudent for a United States tribunal to declare an amorphous cause of action underinternational law that has failed to garner universal acceptance. (8) Accordingly, we find that Beanal'sclaims of genocide and cultural genocide are facially insufficient to withstand a motion to dismissunder Rule 12(b).
Beanal claims that his allegations of individual human rights violations are also actionableunder the TVPA. The TVPA provides an explicit cause of action for torture and extrajudicialkillings. See 28 U.S.C. § 1350, note, § 2. In pertinent part, the statute declares that any individualwho, under actual or apparent authority, or color of law, of any foreign nation subjects an individualto torture or extrajudicial killing shall, in a civil action, be liable for damages. Id. § 2(a)(1), and (2). Freeport argues that the TVPA does not apply to corporations. In other words, an "individual" isnot a corporation under the TVPA. The district court applied a plain language interpretation of the statute and reviewed the legislative history and ruled that the TVPA does not apply to corporations.
Beanal's allegations of individual human rights violations under the TVPA are essentiallypredicated on the same claims of individual human rights violations under the ATS. Because wefind that Beanal fails to state with the requisite specificity and definiteness his claims of individualhuman rights violations under the ATS, we find that his allegations under the TVPA also suffer fromthe same pleading defects. Beanal fails to provide sufficient underlying facts to support his claims. Thus, we affirm the district court's dismissal of Beanal's claims under the TVPA on the ground thathis allegations fail to provide the requisite factual specificity and definiteness to survive a Rule 12(b)motion to dismiss. Therefore, we need not reach the question of whether a cause of action forindividual human rights violations is actionable against a corporation under the TVPA.
We acknowledge that the district court exercised considerable judgment, discretion, and patience below. In light of the gravity and far ranging implications of Beanal's allegations, not onlydid the court give Beanal several opportunities to amend his complaint to conform with theminimum requisites as set forth in the federal rules, the court also conscientiously provided Beanalwith a road-map as to how to amend his complaint to survive a motion to dismiss assuming thatBeanal could marshal facts sufficient to comply with the federal rules. Nevertheless, Beanal wasunable to put before the court a complaint that met minimum pleading requirements under the federalrules. Accordingly, we AFFIRM the district court.
AFFIRM.
1. Amici Curiae have submitted briefs to support Beanal's claims. They include the Sierra Club,Earthrights International, Center For Constitutional Rights, Center for Justice and Accountability,and the Four Directions Council.
2. Because Beanal does not challenge on appeal the district court's order to strike his SecondAmended Complaint for lack of standing to assert third party claims, we need not address thesufficiency of the Second Amended Complaint.
3. A comparison of Beanal's complaints reveals that Beanal attempted to personalize his ThirdAmended Complaint by merely substituting the plural subject, "Plaintiffs," with his name. As such,we agree with the district court in that "it is apparent that Beanal has peppered his own namethroughout these paragraphs without averring facts giving rise to the claim."
4. Ironically, allegations made in Beanal's Second Amended Complaint, which were stricken by the district court, provide the requisite factual specificity. For example, in Paragraph 46 of hisSecond Amended Complaint, Beanal alleged that, "On April 6, 1996, Bagua Kogoya was severelybeaten by Freeport Security guards which resulted in Mr. Kogoya being permanently braindamaged." In paragraph 47, he alleged that, "On December 25, 1994, on Freeport bus #44, whilebeing operated on the road from Timika to Tembagapura, Wendy Tambuni was stabbed and shot todeath while being transported on said bus." Beanal's Second Amended Complaint contains several similar fact-specific allegations regarding other victims. However, the district court grantedFreeport's motion to strike these allegations because Beanal lacked standing to assert them.
5. Sands features three environmental law principles: (1) the Polluter Pays Principle; (2) thePrecautionary Principle; and (3) the Proximity Principle.
6. Although Beanal cites the Rio Declaration to support his claims of environmental torts andabuses under international law, nonetheless, the express language of the declaration appears to cutagainst Beanal's claims. Principle 2 on the first page of the Rio Declaration asserts that states havethe "sovereign right to exploit their own resources pursuant to their own environmental anddevelopmental policies," but also have "the responsibility to ensure that activities within theirjurisdiction or control do not cause damage to the environment or other States or areas beyond thelimits of national jurisdiction." Beanal does not allege in his pleadings that Freeport's miningactivities in Indonesia have affected environmental conditions in other countries.
7. Examples of the documents cited by Beanal and the amici are the International Covenant onCivil and Political Rights, Art. 27,999 U.N.T.S. 171, 6 I.L.M.368 (140 parties )( entered into force 1976)(ethnic minorities "shall not be denied the right . . . to enjoy their own culture."); InternationalCovenant on Economic Social and Cultural Rights, Art. I(1); ICESCR: Art. I(1), 993 U.N.T.S. 3(138 parties)( entered into force 1976)(all peoples enjoy a right to "freely pursue their . . . culturaldevelopment."); Universal Declaration on Human Rights, Art. 22, G.A. Res. 217 (III)(A)(Dec. 10,1948) reprinted in Ian Brownlie, ed. Basic Documents on Human Rights 21 (3 rd ed. 1992)(all personsare entitled to cultural rights indispensable for dignity).
8. In earlier drafts of the Convention on Genocide, there were proposals to incorporate culturalgenocide into the definition of genocide. However, after much debate, the concept of culturalgenocide was explicitly excluded. See Ronald C. Slye, Apartheid As A Crime Against Humanity:A Submission to the North African Truth And Reconciliation Commission , 20 Mich.J. Int'l L. 267, 298 (Winter1999); Matthew Lippman, The Convention on the Prevention and Punishment of theCrime of Genocide: Fifty Years Later , 15 Ariz. J. Int'l & Comp. L. 415, 437 (Spring 1998).