Friday, June 01, 2012 6:10 AM PT
Peruvian Oil Spill Case
Makes New Waves in U.S.

     (CN) - Over the vehement objection of its chief judge, the 9th Circuit on Thursday declined to reconsider claims that Occidental Petroleum Company harmed the Peruvian rain forest.
     Amazon Watch and 25 members of the Achuar communities, who live along the Corrientes and Mascusari rivers in a remote part of the Peruvian rainforest, say Occidental used outdated and illegal methods for separating crude oil during three decades of oil production in the region between 1971 and 2000. Though the company knew that such environmental negligence contaminated rivers and made community members sick, it failed to warn the people, according to the complaint.
     But U.S. District Judge Philip Gutierrez dismissed the lawsuit when it was removed from Los Angeles County Superior Court, where Occidental is based. He found that Peru would have been a more a convenient forum for the claims.
     But the 9th Circuit later chastised the lower court for not considering whether the claims would be time-barred in Peru. It revived the case in late 2010.
     On Thursday, the federal appeals court in Pasadena refused to convene a full, 11-judge panel to reconsider the issue.
     Writing in dissent, Chief Judge Alex Kozinski blasted the majority for "assuming jurisdiction" while ignoring U.S. Supreme Court precedent that required it "to address defendants' claim that Amazon Watch lacks Article III standing."
     "If the majority really wants to give the District Court first bite at the jurisdictional apple, it can simply remand for the district court to consider that issue, without making any other ruling in the case," Kozinski wrote. "By assuming jurisdiction instead, the panel gives itself license to write a precedential opinion on a difficult forum non conveniens question, based on the hypothesis that Amazon Watch has standing and its interests can be weighed in the forum non analysis. Federal courts have no authority to opine on other issues when their jurisdiction has been seriously called into question; their obligation is to remain silent on those other issues until the jurisdictional question has been put to rest. That the District Court may eventually dismiss Amazon Watch for lack of standing will not undo the precedent written by the panel based on its incorrect assumption that Amazon Watch has standing."
     Kozinski added: "Jurisdiction is the power to speak; in its absence, we must remain silent. Perforce, we must first make sure we have jurisdiction before speaking at all in any matter. The Supreme Court has carved out a narrow exception to this rule, which applies only as an alternative way to stop speaking. By allowing the case to go forward, once our jurisdiction has been called into question, the majority puts us at odds with what is perhaps the most fundamental principle of federal jurisdiction."
     Defending the majority's refusal to rehear the issue en banc, Judge Kim McLane Wardlaw accused Kozinski of misunderstanding the scope of the dismissal.
     "Whoa!!! The chief has put the proverbial cart before the horse," she wrote in a concurrence joined by Judges Mary Schroeder and Ronald Gould. "The District Court did not touch upon the merits of the claims alleged in the complaint in any manner whatsoever, and neither did our panel's disposition. Nor did we or the District Court invoke the doctrine of 'hypothetical jurisdiction' in an effort to reach the merits, quite contrary to the dissent's assertion. Rather, based on the record before the District Court, the panel concluded only that the district court abused its discretion when it dismissed this action under the forum non conveniens doctrine. This was, by definition, 'a non-merits ground for dismissal.'"
     Nothing prevents Occidental from renewing its motion to dismiss Amazon Watch for lack of standing on remand, Wardlaw added, but "the question of standing cannot be resolved on the bare pleadings, which is all we have before us given the procedural posture of this appeal.
     "And whether the District Court has jurisdiction will necessarily require some factual development as to whether and how alleged misrepresentations and other conduct by Occidental during its Peruvian operations harmed and continue to harm Amazon Watch," she added.