Friday, June 1, 2012

Tomas Carijano, et al v. Occidental Petroleum Corporation

May 31: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-56187 & 08-56270. The Appeals Court denied Occidental Petroleum Corp.'s bid for an en banc rehearing of a panel ruling that revived claims that the oil company's Peruvian unit polluted waterways and caused health problems for members of an indigenous group in northern Peru [See WIMS 6/2/11].
    In its brief order, the Appeals Court said, "The panel unanimously voted to deny the petition for panel rehearing. Judges Wardlaw and Gould also voted to deny the petition for rehearing en banc and Judge Schroeder so recommended. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. Judge Bea was recused. The petition for rehearing en banc is denied.
    In the original Ninth Circuit appeal of June 2, 2011, Plaintiffs, 25 members of the Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, sued Occidental in Los Angeles County Superior Court for environmental contamination and release of hazardous waste. Although Occidental's headquarters is located in Los Angeles County, Occidental removed the suit to Federal district court where it successfully moved for dismissal on the ground that Peru is a more convenient forum. Plaintiffs appealed the dismissal of their suit.
    The majority ruled, "Occidental had a substantial burden to persuade the district court to invoke the 'exceptional tool' of forum non conveniens and deny Plaintiffs access to a U.S. court. . . Occidental failed to meet that burden, and a proper balance of all the relevant factors at this stage of proceedings clearly demonstrates that this lawsuit should proceed in the Central District of California. We therefore reverse the district court's dismissal on the basis of forum non conveniens. We need not reach Plaintiffs' argument that the district court abused its discretion in denying discovery before ruling on Occidental's motion. We remand this case to the district court to consider the question of Amazon Watch's standing, and for further proceedings consistent with this opinion."
    Access the order and dissenting and concurring in denial of rehearing en banc opinions  (click here). Access the original Ninth Circuit opinion and dissent (click here).  [#Haz, #Toxics, #CA9]
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