Flor Saldana v. Occidental Petroleum Corp

774 F.3d 544, 2014 U.S. App. LEXIS 23559, 2014 WL 7012444
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 15, 2014
Docket12-55484
StatusPublished
Cited by12 cases

This text of 774 F.3d 544 (Flor Saldana v. Occidental Petroleum Corp) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flor Saldana v. Occidental Petroleum Corp, 774 F.3d 544, 2014 U.S. App. LEXIS 23559, 2014 WL 7012444 (9th Cir. 2014).

Opinions

OPINION

PER CURIAM:

Family members of three union leaders killed in Colombia in August 2004 by members of the Colombian National Army’s (“CNA”) 18th Brigade brought this lawsuit in 2011 in Los Angeles, California, against Occidental Petroleum Corporation (“Occidental”), a Delaware corporation with headquarters in Los Angeles. Plaintiffs’ complaint contains ten causes of action, three under 28 U.S.C. § 1350, known as the Alien Tort Statute, and the rest under California tort law. As correctly summarized by the district court, Plaintiffs contend that “Occidental should be liable for the 18th Brigade’s alleged war crimes, crimes against humanity, and assorted torts arising out of the 18th Brigade’s murder of the three union leaders.” Plaintiffs’ theory is that Occidental provided funding to the 18th Brigade, which gave Occidental operational control over the 18th Brigade, knowing full well that the 18th Brigade was committing murders and other human rights abuses. The district court dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(1) on the ground that it raised nonjusticiable political questions. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

A

This case has its genesis in a complex internal armed conflict that Colombia, often with the United States’ assistance, has struggled with for decades. Since the 1960s, leftist guerrilla groups such as the Revolutionary Armed Forces of Colombia (las Fuerzas Armadas Revolucionarias de Colombia, or the “FARC”) and National Liberation Army (el Ejército de Libera-ción Nacional, or the “ELN”) have fought to overpower the Colombian government, often resorting to drug trafficking and kid-naping to fund their efforts. The violence in Colombia peaked in the late 1990s, and, in 1997, the U.S. Department of State designated both the FARC and ELN as foreign terrorist organizations. In 2002, Colombian President Alvaro Uribe, with the United States’ backing, militarized [546]*546much of the country in an effort to eradicate the guerrillas. Plaintiffs’ claims dissect one small fraction of this conflict.

B

Occidental de Colombia, Inc. (“OxyCol”), a Colombian subsidiary of Occidental, and Ecopetrol, Colombia’s state-owned oil company, began oil exploration efforts in the Arauea region of northeast Colombia in the 1980s. They discovered one of the largest oil fields in the country, and began extracting oil in 1986. Together, OxyCol and Ecopetrol built the Caño Limón pipeline (the “Pipeline”) to transport the oil to the coast. Ecopetrol, OxyCol, and a Spanish company, Repsol, own the oilfield and Pipeline, and OxyCol operates the Pipeline.

The Pipeline begins in the Arauea region near the border with Venezuela and ends at the Carribean port of Covefias. The first 110 miles of the Pipeline cut through especially volatile guerrilla territory. The guerrillas targeted the Pipeline to sabotage the Colombian economy and protest the exploitation of one of Colombia’s most lucrative resources. Plaintiffs allege that OxyCol paid millions of dollars in “war taxes” to the ELN and FARC, starting in the 1980s and continuing through at least 2000, so that it could operate the Pipeline without interference. After the United States declared the ELN and FARC terrorist organizations in 1997, these payments became illegal.

C

Guerrilla attacks on the Pipeline continued to increase into the early 2000s, with a high of 170 attacks in 2001. In 2002, because of Colombia’s inability to secure the Pipeline on its own and the importance of the Pipeline to United States energy security, the United States created a $99 million aid program to help secure the Pipeline. There can be no doubt that funding, training and equipping the 18th Brigade became an important component of that program. On April 10, 2002, the State Department’s Undersecretary for Public Affairs testified before a Subcommittee of the Committee of Appropriations of the House of Representatives in connection with an appropriation of funds for fiscal year 2003. His oral testimony and a written statement included the following:

Since July of 2000, the United States has provided Colombia with $1.7 billion to combat narcotics trafficking, terrorism, strengthen democratic institutions and human rights, foster socioeconomic development and mitigate the impact of violence on Colombian civilians.
We are also helping municipalities increase their ability to manage their policies and their funds. We are working closely with the prosecutor general’s office to set up human rights units throughout the country to facilitate the investigation and prosecution of human rights abuses.
Expanding the authorities for the use of aircraft and other assets to cover terrorist and other threats to Colombian democracy will, of course, not ensure that this battle will be won, because they are working against multiple threats. However, we believe that if you approve this proposition, they will give us the flexibility we need to help the government of Colombia more efficiently and more effectively attack the problems that they face.
In the longer-term, we are asking for $439 million in ... funds in our FY-03 budget request to sustain our Plan Colombia programs, as well as $98 million [547]*547in ... funds to train and equip Colombian military units protecting the Caño Limón oil pipeline. The $439 million request includes $275 million for the Colombian military and police, and $164 million for democracy programs, alternative development, assistance to vulnerable groups, and promotion of the rule of law. These funds, together with the terrorism supplemental, will be crucial as the next Colombian government works to improve security, build effective democratic institutions, and foster economic growth.

Foreign Operations, Export Financing, and Related Programs Appropriations for 2003: Hearing Before the Subcomm. on Foreign Operations, Export Financing, and Related Programs of the Comm, on Appropriations, 107th Cong. 276-78, 290 (2002).

An assistant secretary of defense for international security affairs then provided the Subcommittee with the Defense Department’s perspective on the United States’ involvement in Colombia, noting:

The Administration has proposed to Congress $6 million in FY02 supplemental funding and $98 million in FY03 Foreign Military Finance funding to train and equip vetted Colombian units to protect that country’s most threatened piece of critical economic infrastructure — the first 170 kilometers of the Cano-Limon oil pipeline. This segment is the most often attacked. U.S. assistance and training will support two Colombian Army Brigades, National Police and Marines operating in the area. These units through ground and air mobility will be in a better position to prevent and disrupt attacks on the pipeline and defend key facilities and vulnerable points such as pumping stations.

Id. at 303-04. In addition, the acting commander in chief of the United States Southern Command provided the Subcommittee with a written statement on the appropriations, observing:

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774 F.3d 544, 2014 U.S. App. LEXIS 23559, 2014 WL 7012444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flor-saldana-v-occidental-petroleum-corp-ca9-2014.