Sarei

Volume 1 of

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEXIS HOLYWEEK SAREI; PAUL E. 

NERAU; THOMAS TAMAUSI; PHILLIP

MIRIORI; GREGORY KOPA;

METHODIUS NESIKO; ALOYSIUS

MOSES; RAPHEAL NINIKU; GABRIEL

TAREASI; LINUS TAKINU, LEO WUIS;

MICHAEL AKOPE; BENEDICT PISI;

THOMAS KOBUKO; JOHN TAMUASI;

NORMAN MOUVO; JOHN OSANI; BEN No. 02-56256

KORUS; NAMIRA KAWONA; JOANNE

BOSCO; JOHN PIGOLO; MAGDALENE

 D.C. No.

CV-00-11695-

PIGOLO, individually and on behalf MMM of themselves and all others similarly situated, Plaintiffs-Appellants, v.

RIO TINTO, PLC; RIO TINTO

LIMITED,

Defendants-Appellees. 

4117 4118 SAREI v. RIO TINTO, PLC

ALEXIS HOLYWEEK SAREI; PAUL E. 

NERAU; THOMAS TAMAUSI; PHILLIP

MIRIORI; GREGORY KOPA;

METHODIUS NESIKO; ALOYSIUS

MOSES; RAPHEAL NINIKU; GABRIEL

TAREASI; LINUS TAKINU, LEO WUIS;

MICHAEL AKOPE; BENEDICT PISI;

No. 02-56390

THOMAS KOBUKO; JOHN TAMUASI;

NORMAN MOUVO; JOHN OSANI; BEN D.C. No.

KORUS; NAMIRA KAWONA; JOANNE

BOSCO; JOHN PIGOLO; MAGDALENE

 CV-00-11695-

MMM

PIGOLO, individually and on behalf …

dissenting:

In Sosa v. Alvarez-Machain, the Supreme Court addressed arguments that “international law requires that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system.” 542 U.S. 692 , 733 n. 21, 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004). Although declining to do so in Sosa, the Court declared that it “would certainly consider this requirement in an appropriate case.” Id. This is such a case.

Plaintiffs-Bougainvilleans alleged that Rio Tinto, a multinational British corporation, violated various jus cogens, including war crimes, crimes against humanity, racial discrimination, and environmental despoliation. They also allege that Rio Tinto directed these actions through the government of Papua New Guinea (“PNG”). These actions took place beginning in the early 1960s, culminating in a 10-year civil war from 1990 to 2000. See Sarei v. Rio Tinto PLC, 221 F.Supp.2d 1116, 1121-27 (C.D.Cal.2002). In 2001, the U.S. Department of State warned that adjudication of the Bougainville claims in U.S. courts posed a “very grave” threat to the “conduct of our foreign relations.” The State Department’s Statement of…

ORDER

Rio Tinto’s petition for rehearing and for rehearing en banc is granted in part. The majority opinion and dissent filed Au *1197 gust 7, 2006, see Sarei v. Rio Tinto, PLC, 456 F.3d 1069 (9th Cir.2006), are hereby withdrawn. A superseding opinion and dissent will be filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed.

OPINION

This appeal presents questions of justici-ability and exhaustion in the context of the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”). Plaintiffs are current or former residents of Bougainville, Papua New Guinea (“PNG”), who allege that they or their family members were the victims of numerous violations of international law as a result of defendant mining corporation Rio Tinto, PLC’s (“Rio Tinto”) Bougain-ville mining operations and the 10-year civil conflict that followed an uprising at the Rio Tinto mine. 1 The plaintiffs appeal the district court’s dismissal of their lawsuit seeking redress under the ATCA, which provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the…