Chevron Hearings

Chevron

Paul Hoffman to argue landmark human rights case on March 9, 2007

February 01, 2007

AFTER HEARINGS, JUDGE TO DECIDE CHEVRON'S ROLE IN NIGERIA DEATHS
By Dennis Pfaff
Daily Journal Staff Writer

SAN FRANCISCO - The question of who is responsible for the violent deaths of protesters and villagers living near Nigerian oil facilities during the late 1990s always will be controversial.

But the legal issues and the question of California-based petroleum giant Chevron Corp.'s culpability in the deaths of a half-dozen or more people and the injuries of others in the oil-rich Niger Delta could be nearing a resolution.

After a series of hearings scheduled to begin Friday and continue for a few months, U.S. District Judge Susan Illston will determine the future of an unusual lawsuit filed on behalf of Nigerians in 1999 against the San Ramon-based petroleum company. Bowoto v. ChevronTexaco Corp., 99-2506SI.

Plaintiffs contend that the violence constituted a campaign by Chevron to quell opposition to its environmental and economic policies in the valuable region. Operations affiliated with the company have extracted more than $3 billion worth of crude oil from the delta for export to the United States during the past decade, according to court papers.

The suit names three U.S.-based Chevron corporate entities, which the plaintiffs claim acted through the subsidiary Chevron Nigeria Ltd. Operations in that nation are carried out under a minority joint venture with a Nigerian government-owned company, according to court documents.

The suit seeks monetary damages and court orders that would prevent such incidents in the future.

Chevron, which has fought the suit fiercely, concedes none of the plaintiffs' legal points. In court papers, the company takes the position that none of the incidents justifies the accusations leveled. Chevron also disputes that its U.S. corporations can be held responsible for the actions of its subsidiary or of Nigerian government security forces.

Chevron has filed motions that, if successful, would erase the suit.

The legal contest comes against a background of demonstrable human suffering in the African nation. Despite Nigeria's position as a leading oil-exporting nation, nearly every independent account portrays it in disastrous terms.

"From a potential model nation, Nigeria has become a dangerous country, addicted to oil money, with people increasingly willing to turn to corruption, sabotage and murder to get a fix of the wealth," National Geographic magazine reports in its February issue.

News reports are full of accounts of violence against oil operations, including an incident last week in which gunmen stormed a Chinese oil company operating in Nigeria and abducted seven workers. Such attacks have cut Nigeria's crude exports by a fourth, the Associated Press reported.

After years of courtroom skirmishes, the San Francisco case has been slimmed. But it remains alive, and it could go to trial by year's end.

The suit's central theme is alleged violations of the Alien Tort Claims Act, an ancient federal statute.

The 1789 law, seized upon recently by human-rights activists, allows claims by foreigners to be heard in federal courts under certain circumstances, such as violations of the "law of nations" or treaties. Among the plaintiffs' federal claims are allegations of "crimes against humanity," which the suit describes as a violation of international law.

In many ways, the Chevron case is similar to a set of suits brought in U.S. District Court in Los Angeles and Los Angeles Superior Court by residents of Myanmar (formerly Burma) against Unocal. Doe v. Unocal Corp., CV96-6959 (C.D. Cal., filed 1996). That litigation, which relied partly on the alien tort law, was settled when the company agreed in 2005 to compensate the plaintiffs an undisclosed amount. Also that year, Chevron purchased Unocal.

Another claim in the Chevron case relies on alleged violations of the federal Racketeer Influenced and Corrupt Organizations Act. The plaintiffs, who include people injured in the incidents and relatives of the dead, also have brought state-law claims such as wrongful death and assault.

Many of the plaintiffs also have brought a case in San Francisco Superior Court under the state's Unfair Competition Law. That case rests on the same incidents and Chevron's allegedly false campaign to discredit the Nigerians afterward. Bowoto v. Chevron, 03-417580.

In a critical ruling in the federal case, Illston in August found that Chevron could not be held liable under several alleged violations of the alien tort law, including torture and summary execution. But she held that the crimes-against-humanity charge could apply to "private actors" like Chevron.

Illston decided that the company might be liable under a theory that it aided and abetted the Nigerian military, which carried out the assaults in question.

Illston also rejected the "nearly impossible" standards against employing the alien tort law, which Chevron and other defendants had advocated based on the 2004 U.S. Supreme Court decision Sosa v. Alvarez-Machain, 542 U.S. 692.

In that case, the court blocked the statute's use in a suit brought by a doctor kidnapped in Mexico and brought to the United States to face trial in the death of a federal drug agent. But the court also found that the law gave federal judges jurisdiction to hear suits by foreigners.

Last year, a divided 9th U.S. Circuit Court of Appeals, in one of the first major post-Sosa decisions, breathed new life into a human-rights case brought by residents of the Pacific island of Bougainville against a British mining company with investments in the United States. The suit had been filed in U.S. District Court in Los Angeles. Sarei v. Rio Tinto, 456 F.3d 1069.

"We're certainly going to rely heavily on Rio Tinto" during the next phases of the case, said Cindy Cohn, a longtime attorney for the Chevron plaintiffs.

Illston previously had allowed the RICO claim to go forward. That accusation charges that Chevron and its subsidiaries hired the Nigerian military to suppress dissent in that nation.

The Nigerians' suit centers on three incidents in 1998 and 1999. In the first, according to the suit, three or four Chevron-leased helicopters loaded with security and military personnel approached an oil platform occupied by scores of Nigerian protesters. Occupants of the choppers began firing weapons at the demonstrators.

At least two people died, and two others sustained serious injuries. Other protesters were seized and held by Nigerian soldiers or police. Officials are accused of torturing one of the captives by hanging him by his wrists from a ceiling fan, according to the suit.

In two other incidents that occurred on the same day in 1999, the suit charges that Nigerian military forces paid by Chevron attacked civilians in two small villages near the company's oil and gas installations. In at least one case, attackers used a large "sea truck" boat with a mounted machine gun.

Those assaults, which resulted in several deaths, were intended to intimidate the villagers "and frighten others who might seek to protest Chevron's activities in the area," the suit says.

Among the dead was a woman fishing with her children in a small boat. Her body has not been found. The villages were burned to the ground.

Despite the trimming the case has endured, the plaintiffs remain poised to bring their dramatic story to an American courtroom, Cohn said recently.

"Ultimately, [Illston] didn't hurt the fundamentals of the case," said Cohn, a San Francisco-based lawyer with the Electronic Frontier Foundation. "Every single fact will go forward."

Nonetheless, the plaintiffs hope for a chance to challenge Illston's rulings. The judge has not yet decided on their request to allow them to go forward with an appeal while the case is pending.

In addition to preparing for trial, Cohn and the other plaintiffs' lawyers are working on more-mundane issues. They plan to bring as many as 30 individuals from Nigeria and must arrange lodging and passports. The lawyers have toyed with the idea of putting up the Nigerians in a large house to share cooking and other responsibilities during a trial that could last a long time.

"It's going to be a big job," Cohn said.

Chevron's lead attorney in the case, Robert A. Mittelstaedt of Jones Day in San Francisco, declined comment on the litigation in advance of the hearing.

The company, while defending itself vigorously, has succeeded in getting much of the documentary evidence in the case filed under seal. Plaintiffs' lawyers have complained that Chevron is overusing its argument that it must protect the identity of certain individuals, as well as financial information.

First up for Illston in the next round of hearings is today's arguments on Chevron's summary-judgment motion attacking the crimes-against-humanity claim.

In its publicly filed written arguments, Chevron portrayed the violence as stemming partly from intertribal rivalries. The takeover of the Parabe oil platform, under the scenario outlined by the oil company's attorneys, had its origins in the dissatisfaction expressed by members of one Nigerian tribe about jobs allocated to a different tribe.

The Nigerian subsidiary did not know that the government security troops were going to shoot anyone, the company asserts in court papers. Company officials responding to the oil-platform incident thought they were dealing with a "hostage situation" when they sought help from the government, according to those court filings.

Nothing, the oil giant argued, supports an accusation of crimes against humanity, a charge that has been affixed only to such egregious assaults on civilian populations as the Holocaust or "ethnic cleansing" campaigns in the former Yugoslavia.

"It has never been applied in cases involving alleged use of excessive force by law-enforcement personnel engaged in rescuing hostages or responding to attacks on government facilities and soldiers," the company's attorneys wrote in a brief filed in October.

The RICO accusation, the subject of a scheduled Feb. 9 hearing before Illston, is equally baseless, the company has argued.

The plaintiffs have charged that Chevron's racketeering "enterprise" involved "the extraction of oil for ultimate sale in the U.S. and the suppression of protest against environmental degradation and loss of fishing, farming and other economic activities caused by defendants' operations." U.S.-based corporate defendants, acting through Chevron Nigeria Ltd., "hired" the nation's security forces with the knowledge that those troops "used excessive violence in response to community protests," the plaintiffs' lawyers argue in briefs filed with Illston.

But the facts do not fit RICO, Chevron maintains.

"Each plaintiff's alleged injuries arise from one of two occasions when the Nigerian military responded to reports of illegal conduct," the company's attorneys wrote in briefs filed with Illston. "They do not arise from a racketeering scheme involving defendants. The inapplicability of RICO here is evident at every juncture."

The company's lawyers called the incidents "isolated" and "unrelated," asserting that they did not constitute a pattern as required by RICO. Noting that the protest at the oil platform was a criminal act under Nigerian law, the company said the nation "has a great interest in ensuring that its citizens do not profit from illegal conduct because that could create an incentive for lawlessness in an already-volatile situation."

Furthermore, because the alleged actions occurred overseas, they could not be charged under RICO, the company argued. The plaintiffs countered that not only can RICO apply to acts carried out in Nigeria, but also the U.S.-based defendants engaged in planning, oversight and control of the Nigerian subsidiary.

"The evidence of defendants' United States conduct is overwhelming," the plaintiffs said in a footnote to one brief.

That alleged evidence included approving payments the subsidiary made to Nigerian military personnel.

Among other motions to be heard during the series of arguments Illston is scheduled to hear nearly through April are Chevron challenges to the plaintiffs' state-law claims, including assault. The company also has attacked the plaintiffs' case by alleging that they cannot show the defendants liable for acts of the Nigerian subsidiary or of that nation's military.

"There is no evidence that [the Nigerian subsidiary] acted for defendants in responding to the events in Nigeria," the company's lawyers wrote.

Cohn said that in order to avoid a trial, Chevron would have to "roll the table" with its motions. She added that the Nigerians are used to waiting for justice.

"We all understood going in this was going to be a landmark case, and we were going up against one of the world's largest oil companies," she said. "We're not going away."

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