Presbyterian Church of Sudan v. Talisman Energy

• Decision Date: 02 October 2009
• Docket Number: Docket No. 07-0016-cv.
• Parties: The PRESBYTERIAN CHURCH OF SUDAN, Rev. Matthew Mathiang Deang, Rev. James Koung Ninrew, Nuer Community Development Services in U.S.A, Fatuma Nyawang Garbang, Nyot Tot Rieth, individually and on behalf of the estate of her husband Joseph Thiet Makuac, Stephen Hoth, Stephen Kuina, Chief Tunguar Kueigwong Rat, Luka Ayuol Yol, Thomas Malual Kap, Puok Bol Mut, Chief Patai Tut, Chief Peter Ring Patai, Chief Gatluak Chiek Jang, Yien Nyinar Riek and Moris Bol Majok, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. TALISMAN ENERGY, INC., Defendant-Appellee, Republic of the Sudan, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

582 F.3d 244

The PRESBYTERIAN CHURCH OF SUDAN, Rev. Matthew Mathiang Deang, Rev. James Koung Ninrew, Nuer Community Development Services in U.S.A, Fatuma Nyawang Garbang, Nyot Tot Rieth, individually and on behalf of the estate of her husband Joseph Thiet Makuac, Stephen Hoth, Stephen Kuina, Chief Tunguar Kueigwong Rat, Luka Ayuol Yol, Thomas Malual Kap, Puok Bol Mut, Chief Patai Tut, Chief Peter Ring Patai, Chief

Gatluak Chiek Jang, Yien Nyinar Riek and Moris Bol Majok, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. TALISMAN ENERGY, INC., Defendant-Appellee, Republic of the Sudan, Defendant.

Docket No. 07-0016-cv.

United States Court of Appeals, Second Circuit.

Argued: January 12, 2009.

Decided: October 2, 2009.

Paul L. Hoffman, Schonbrun DeSimone Seplow Harris & Hoffman, Venice, CA, (Adrienne J. Quarry, Schonbrun DeSimone Seplow Harris & Hoffman, Venice, CA; Carey D'Avino, Stephen Whinston, and Keino Robinson, Berger & Montague, P.C., Philadelphia, PA; Lawrence Kill, John O'Connor, and Stanley Bowker, Anderson Kill & Olick, P.C., New York, NY; Daniel E. Seltz, Steven E. Fineman, and Rachel Geman, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, NY, on the brief), for Plaintiffs-Appellants.

Marc J. Gottridge (Joseph P. Cyr, Scott W. Reynolds, Andrew M. Behrman, on the brief), Lovells, New York, NY, for Defendant-Appellee.

Ralph Steinhardt, Professor of Law, George Washington University Law School, Washington, DC, (William J. Aceves, Professor of Law, California Western School of Law, San Diego, CA, on the brief) for Amici Curiae International Law Scholars in Support of Appellants.

Richard L. Herz (Marco B. Simons, on the brief), Earthrights International, Washington, DC, for Amicus Curiae Earthrights International in Support of Plaintiffs-Appellants and Reversal.

Judith Brown Chomsky and Michael Poulshock, Law Office of Judith Brown Chomsky, Elkins Park, PA, and Jennifer M. Green and Katherine Gallagher, Center for Constitutional Rights, New York, NY, for Amicus Curiae on Civil Conspiracy and Joint Criminal Enterprise in Support of Plaintiffs-Appellants and in Support of Reversal of the District Court's Opinion.

Terrence P. Collingsworth, Derek Baxter, and Natacha Thys, International Labor Rights Fund, Washington, DC, for Amicus Curiae International Labor Rights Fund in Support of Plaintiffs-Appellants.

Mark Diamond, Counsel for Amici Curaie, New York, NY, for Amici Curiae Lexiuste Cajuste, Neris Gonzalez, Zenaida Velásquez Rodriguez, and Francisco Calderon in Support of Plaintiffs-Appellants Urging Reversal.

Renee C. Redman, Legal Director, American Civil Liberties Union Foundation of Connecticut, Hartford, CT, for Amici Curiae Canadian Parliamentarians in Support of the Appellants.

Jonathan W. Cuneo and R. Brent Walton, Cuneo Gilbert & LaDuca, LLP, Washington, DC, for Amici Curiae The Rt. Reverand Keith L. Ackerman, SSC, Bishop, Diocese of Quincy, the Episcopal Church; Christian Solidarity International-USA; Coalition for the Defense of Human Rights; Family Research Council; Institute on Religion & Democracy; Renew Network; Servant's Heart; Sudan Advocacy Action Forum; Sudan Sunrise; and Trinity Presbytery's Sudan Ministry in Support of Appellants.

Lewis S. Yelin, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, Washington, DC, (Michael J. Garcia, United States Attorney, and David S. Jones, Assistant United States Attorney, Southern District of New York, New York, NY, John B. Bellinger III, Legal Advisor, Department of State, Washington, DC, Jeffrey S. Bucholtz, Acting Assistant Attorney General, and Douglas N. Letter and Robert M. Loeb, Attorneys, Appellate

Staff, Civil Division, U.S. Department of Justice, Washington, DC, on the brief), for Amicus Curiae United States.

Samuel Estreicher, Nyu School of Law, New York, NY, (Michael D. Ramsey, University of San Diego School of Law, San Diego, CA on the brief), for Amici Curiae Professors of International Law, Federal Jurisdiction and the Foreign Relations Law of the United States in Support of Defendant-Appellee.

Karen M. Asner and Milana Salzman, White & Case LLP, New York, NY, for Amicus Curiae the Government of Canada in Support of Dismissal of the Underlying Action.

Robin S. Conrad and Amar D. Sarwal, National Chamber Litigation Center, Inc., Washington, DC, and John Townsend Rich, Paul R. Friedman, and William F. Sheehan, Goodwin Proctor LLP, Washington, DC, for Amicus Curiae the Chamber of Commerce of the United States of America in Support of Defendant-Appellee Talisman Energy, Inc. and in Support of Affirmance.

Daniel J. Popeo and Richard A. Samp, Washington Legal Foundation, Washington, DC, for Amici Curiae Washington Legal Foundation and Allied Educational Foundation in Support of Defendant/Appellee, Urging Affirmance.

James J. Dillon, Foley Hoag LLP, Boston, MA, Janet Walker, Professor of Law, Osgood Hall Law School of York University, Toronto, Ontario, Canada, and H. Scott Fairley, Theall Group LLP, Toronto, Ontario, Canada, for Amici Curiae the Canadian Chamber of Commerce; the Mining Association of Canada; the Canadian Association of Petroleum Producers; and the Prospectors and Developers Association of Canada in Support of Defendant-Appellee.

James J. Dillon, Foley Hoag LLP, Boston, MA, for Amici Curiae The National Foreign Trade Council; The Independent Petroleum Association of America; and The United States Council for International Business in Support of Defendant-Appellee.

Christopher Greenwood, CMG, QC, Essex Court Chambers, London, United Kingdom, for Amicus Curiae Professor Christopher Greenwood, CMG, QC, in Support of Defendant-Appellee.

James Crawford, Whewell Professor of International Law, University of Cambridge, Cambridge, United Kingdom, for Amicus Curiae Professor James Crawford in Support of Defendant-Appellee.

Before: JACOBS, Chief Judge, LEVAL and CABRANES, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Plaintiffs-Appellants are Sudanese who allege that they are victims of human rights abuses committed by the Government of the Sudan in Khartoum ("the Government") and that Talisman Energy, Inc. ("Talisman"), a Canadian corporation, aided and abetted or conspired with the Government to advance those abuses that facilitated the development of Sudanese oil concessions by Talisman affiliates. Plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.) dismissing their claims under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350.

We hold that under the principles articulated by the United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), the standard for imposing accessorial liability under the ATS must be drawn from international law; and that under international law, a claimant must show that the defendant provided substantial assistance with the purpose of facilitating the alleged offenses. Applying that standard, we affirm the district court's grant of summary judgment in favor of Talisman, because plaintiffs presented no evidence that the company acted with the purpose of harming civilians living in southern Sudan.

It becomes necessary to set out at some length the background of the hostilities in the Sudan; the history of the oil enterprise, its facilities and corporate structure; the security measures taken by the enterprise and by the Government; the injuries and persecutions alleged; and the extent and nature of Talisman's connection to the human rights abuses.

BACKGROUND

A. Civil War in the Sudan

At the time Sudan obtained its independence from Britain and Egypt in 1956, civil war broke out between the Arab-dominated Islamic regime in the north, and the non-Muslim African population in the south.¹ In 1972, the two sides reached a power-sharing agreement in Addis Ababa, Ethiopia, after which relative stability ensued until an anti-Government uprising in 1983.

In 1991, southern rebels fractured, and the factions fought the Government and each other, with large-scale displacement and death among civilians.

In April 1997, the Government signed the Khartoum Peace Agreement ("KPA") with several (but not all) of the southern rebel groups. The KPA provided for religious freedom, a cease-fire, sharing of resources and power between the north and south, creation of a "Coordinating Council" of factions in southern Sudan, and the consolidation of most of the rebel militias into the South Sudan Defense Force ("SSDF"), which was aligned with the Government, but with a measure of autonomy and control in the south. The benefits of this agreement were short-lived: the SSDF split into warring factions by 1998, and competing militia groups continued fighting each other and the Government. This violence continued throughout the time that Talisman operated in the Sudan.

B. Oil Development in the Sudan

After Chevron discovered oil in southern Sudan in 1979, the Government granted development rights to foreign companies for six numbered "blocks."

In August 1993, a Canadian company named State Petroleum Company ("SPC") purchased the rights to develop blocks 1, 2, and 4. In 1994, SPC was acquired by, and became a wholly owned subsidiary of, another Canadian company, Arakis Energy Corporation ("Arakis").

In December 1996, SPC formed a consortium with three other companies: China National Petroleum Corporation ("CNPC"), Petronas Carigali Overseas SDN BHD ("Petronas"), and Sudapet, Ltd. ("Sudapet") (collectively "the Consortium"), which were wholly owned by China, Malaysia, and the Republic of the Sudan, respectively. The Consortium members signed agreements among themselves and with the Government concerning oil exploration, production, and development, as well as the construction of a pipeline from the Consortium's concession area to the Red Sea. More than half of the Consortium's profits accrued to the Government.

The Consortium members...