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Beanal vs. Freeport

UNITED STATES DISTRICT COURT

EASTERN DISTRICT FOR LOUISIANA

CIVIL ACTION

CASE NO: 96-1474, SECTION: SECT.K MAG.3

TOM BEANAL, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF

VERSUS

FREEPORT-McMoRan, INC. AND FREEPORT-McMoRan COPPER AND GOLD, INC., DEFENDANTS



COMPLAINT

NOW INTO COURT, through undersigned counsel, comes the above listed plaintiff individually and on behalf of all similarly situated class members and represents that:

1. The plaintiff, TOM BEANAL, a resident of Timika, Irian Jaya (West Papua) within the Republic of Indonesia and a leader of the Amungme Tribal Council Lembaga Musyawarah Adat Suku Amungme (LEMASA) represents that the complaint is brought individually and on behalf of all other similarly situated class members (Indigenous people of Irian Jaya (West Papua)) because: (1) joinder of all members of the class is impractical (numerosity); (2) there are multiple questions of law and/or fact common to the class (commonality); (3) the claims of plaintiff are typical of the claims of the class (typicality); and (4) plaintiff as a tribal council leader will fairly and adequately protect the interests of the class. Furthermore, the plaintiff alleges that the predominate human rights, environmental and cultural causes of action of the class members present common legal and factual issues. Finally, the plaintiff contends that a class action is the superior method of adjudicating the claims, herein, which have global significance.

2. Made defendant herein is FREEPORT-McMoRan, INC., a domestic corporation incorporated in the State of Delaware having as its primary corporate domicile located at 1615 Poydras Street, New Orleans, Louisiana 70112. Also made defendant herein is FREEPORT-McMoRan COPPER AND GOLD, INC., a domestic corporation incorporated in the State of Delaware and also having its primary corporate domicile at 1615 Poydras Street, New Orleans, Louisiana 70112. Hereinafter defendants referred to collectively as FREEPORT.

3. The proper Agent for service of process for both Freeport McMoRan, INC. and FREEPORT-McMoRan COPPER AND GOLD, INC. is C.T. Corporation Systems located at 8550 United Plaza, Baton Rouge, Louisiana 70809.

JURISDICTION

4. Jurisdiction is proper in the Eastern District of Louisiana, United States District Court based upon 28 U.S.C. 1332 in that the amount of controversy asserted herein is in excess of $50,000.00 and that the controversy is between corporate citizens of a state and/or subjects of a foreign state. Additionally, jurisdiction is proper herein pursuant to the Alien Tort Claim Act, 28 U.S.C. 1350 and the Torture Victim Protection Act of 1991, Section 1, et seq. (PUB.L. 102-256).

VENUE

5. Venue is proper under 28 U.S.C. 1391 in that both corporate defendants have their primary corporate headquarters located at 1615 Poydras Street, New Orleans, Louisiana 70112 and a substantial part of the events giving rise to the claims herein arose at the corporate headquarters of FREEPORT McMoRan, INC., and FREEPORT-McMoRan COPPER and GOLD located at 1615 Poydras Street, New Orleans, Louisiana, including but not limited to all corporate decisions relative to the conduct of FREEPORT security personnel, the conducting of mining operations and the conceptions of any and all "environmental policies" or lack thereof affecting the defendant's mining operation in the Republic of Indonesia.

HISTORICAL OVERVIEW

6. In 1967, defendant, FREEPORT-McMoRan, INC., by and through its predecessor corporation(s), initiated development of the Ertsberg Mine within the region commonly known as Irian Jaya (West Papua), a Province of the Republic of Indonesia.

7. In 1988, defendant, FREEPORT-McMoRan, INC. by and through its subsidiaries and/or affiliates discovered within the Jayawijaya Mountain an enormous deposit of ore containing copper, gold and silver. Thereafter, the defendants began operating an open pit mine referred to as the Grasberg Mine. Included in the Grasberg open pit mining facility of the defendants is a mill, tunnels, slurry pipe lines and a corporate port located at Amamapare. The aforesaid Grasberg open pit mining operation encompasses an approximately 26,400 square kilometer area.

8. The Grasberg Mine site, including the cities of Tembagapura and Timika were at all pertinent times "policed" by the defendants' security personnel who maintain security stations, vehicles and a staff of paramilitary type security officers. Additionally, upon information and belief, the corporate defendants maintain a military presence within its mining operation wherein troops of the Republic of Indonesia are fed, transported, paid and provided equipment from the defendants in order to assist its operations.

HUMAN RIGHTS VIOLATIONS

9. Plaintiff herein reiterates each and every foregoing paragraph of this Complaint.

10. The plaintiff herein submits under the Alien Tort Claim Act and the Torture Victim Protection Act of 1991 that defendant corporations, FREEPORT-McMoRan, INC. AND FREEPORT McMoRan COPPER AND GOLD, INC. have systematically engaged in a corporate policy both directly and indirectly through third parties which have resulted in human rights violations against the Amungme Tribe and other Indigenous tribal people. Said actions include extra judicial killing, torture, surveillance and threats of death, severe physical pain and suffering by and through its security personnel employed in connection with its operation of the Grasberg mine.

11. Pursuant to the Torture Victim Protection Act of 1991, plaintiff herein represents that all available and adequate remedies within the Province of Irian Jaya (West Papua), Republic of Indonesia have been exhausted, including but not limited to complaints to the Indonesian National Commission of Human Rights (KOMNASHAM) and the Australian Human Rights Commission.

12. Upon information and belief, the plaintiff, individually and on behalf of those similarly situated, complain that the defendants' security guards in conjunction with third parties acting by and through the corporate policy of the defendants have engaged in summary executions, arbitrary arrest and detention, torture, disappearances, surveillance and the destruction of property. Said violations have occurred on FREEPORT buses, within FREEPORT workshops, at FREEPORT security command centers, FREEPORT security stations, FREEPORT Private Roadways and containers owned by said corporate defendants.

13. On December 25, 1994, on FREEPORT bus #44, while being operated on the road from Timika to Tembagapura, Wendy Tambuni was stabbed and shot to death while being transported on said bus.

14. Also on December 25, 1994, at the FREEPORT workshop located at Koperapoka, three civilians were killed after being tortured.

15. On December 26, 1994, four civilians, arbitrarily and without lawful cause, were arrested at the FREEPORT security station and imprisoned in FREEPORT containers at Banti.

16. Repeated acts of torture have been conducted at FREEPORT security stations and FREEPORT containers throughout the FREEPORT concession in Irian Jaya (West Papua), Indonesia. Said torture included kicking about the stomach, chest and head regions while FREEPORT security personnel were wearing military boots, beatings engaged in with fists, sticks, rifle butts, stones, starvation, kneeling on iron bars, standing with heavy weights on the subject's heads, shackling of thumbs, wrists and legs, stabbing, taping eyes closed and forced labor.

17. Throughout the operation of the Freeport concession in Irian Jaya (West Papua), Indonesia, the defendant corporations have engaged in security surveillance of the indigenous people, including the plaintiff, throughout the region and said surveillance has resulted in fear, tension and severe mental distress resulting from the conduct of FREEPORT security personnel.

18. Torture victims have been kept in FREEPORT containers where they are required to stand for periods of up to and including seven days in water which was calf high and reeked of human feces.

19. Indigenous people have also been detained at FREEPORT workshops and security stations throughout the region where their eyes were taped shut, thumbs tied and were subject to repeated beatings and torture by FREEPORT security personnel and are (rsb: sic -- probably meant "or") third parties acting in conjunction with said personnel.

20. The plaintiffs assert that the indigenous people were never subject to the aforestated human rights violations prior to the presence of the defendant corporations in their region.

21. The Australian Counsel (rsb: sic) for Overseas Aid (ACFOA) (rsb: missing word "report") contain (rsb: sic) repeated first hand accounts of the brutal human rights violations of the FREEPORT security personnel whose conduct is acquiesced to, accepted, adopted and/or ratified by the defendant corporations as part of their corporate policy in operating and expanding the FREEPORT mining concession in Irian Jaya (West Papua), Indonesia at the expense of the local indigenous people.

22. The plaintiffs allege that FREEPORT security personnel or third parties supported by defendant corporations were acting under actual or apparent authority of the defendant corporations. The plaintiffs allege that the aforesaid conduct is egregious violations of international law (Law of Nations) for which the defendant corporations are accountable under the Alien Tort Claim Act and/or the Torture Victim Protection Act. (rsb: sic period) of 1991.

23. The plaintiffs specifically allege that international law (Law of Nations) as understood in the modern era does not confine its reach to state action in that certain forms of conduct violate the Law of Nations whether undertaken by those acting under the auspices of state or only as private individuals, including corporations.

ENVIRONMENTAL VIOLATIONS

24. The plaintiffs allege that the mining operations conducted by defendant corporations referred to herein as the Grasberg mining operation resulted in the destruction of the indigenous peoples' natural waterways within the region; the deforestation of rain forest and the contamination of the region's surface and ground water through ore leachate. Said violations of international environmental law are tantamount to acts of eco-terrorism.

25. The Grasberg mining operation deposits in the local waterways approximately 120,000 metric tons of tailings (rsb: per day) which contain trace amounts of metals and are the waste product of the open pit mining operation of defendant corporations at Grasberg.

26. The environmental ramifications of the tailings released into the waterways of the plaintiff's natural living area include toxicity, volume and mass which have resulted in the disruption of the nature (rsb: sic) waterways, the pollution of natural waterways, the overflow and alteration of the natural waterways leading to the deforestation of the region.

27. The FREEPORT mining concession has discharged tailings resulting in massive deposition of tailings of Ajkwa River and the sheet flow of tailings which has substantially destroyed a significant area of the low land rainforest between the Ajkwa River and the Minajeri River. The destruction of said areas has resulted and caused a major environmental, health and safety hazard within Irian Jaya (West Papua).

28. Additional problems resulting from the operation of the FREEPORT mining concession include acid mine drainage from the tailings, the concentration, mobilization and bio availability of non-toxic and toxic materials in the tailings, the degradation of surface and ground water quality, increased sedimentation, sheeting and other adverse affects that have been caused by the higher percentage of coarser grain tailings, and the mismanagement of solid and hazardous waste at the site.

29. The FREEPORT mining concession additionally has caused the hollowing of several mountains which are beautiful, natural resources of the glacial mountain range in the region, spontaneous re-routing of major rivers, the death of a large track of the sago Forest and the increase in levels of toxic and non-toxic materials and metals within the river systems of the area.

30. Other major rivers affected by the dumping of the tailings into the rivers of the indigenous peoples' region are the Aghawagon River and the Otomona River equally affected by the mismanagement of the tailing released by the defendant corporations.

31. As a result of the lack of a proper tailings management program by defendant corporations, areas as large as 50 square kilometers of fresh water swamp forest have been transformed into a denuded tailings deposit area.

32. The contamination of the waterways by the enormous tonnage of tailings dumped by the defendant corporations prevents sunlight penetration into the water, prevention of oxygen dilution and is a practice which is unacceptable anywhere on this plant.

33. The plaintiffs allege that acid mine drainage from the Grasberg ore zone is an equally significant international environmental violation caused by the defendant corporations and is caused by chemical and biological oxidation of sulfides and excavation of sulfide containing waste materials during mining which exposes previously unweathered rock to oxygen thereby greatly accelerating the oxidative process.

34. One of the by products of sulfide oxidation is sulfuric acid which in turn can dissolve residual metals and other metals such as arsenic in the mine waste to produce an extremely toxic leachate.

35. Plaintiffs allege that defendant corporations have failed to engage in adequate acid mine drainage management programs and have failed to develop a comprehensive mining and waste handling plan to ensure prevention of acid generation from waste rock tailings, open pits and underground work areas.

36. The Grasberg mining operation within the FREEPORT concession already exhibits visual evidence of acid mine draining which is the result of sulfide oxidation within its property.

37. The plaintiffs allege that due to the mismanagement of the defendant corporations that toxic leachates from the open pits of the Grasberg mining operation have been widely disbursed into the ground water and surface waterways within the FREEPORT concession.

38. Defendant corporations (rsb: sic -- missing apostrophe) mining operations in Irian violate every acceptable international norm and has and will result in the continued destruction of the beautify valleys, glacial mountain ranges and rain forests of the region.

39. The corporations (rsb: sic -- missing apostrophe) mining operations disrupted the delicate ecosystem balance between the sea, the beaches, the swamp, the rain forest and the alpine areas within the FREEPORT mining concession.

40. Plaintiffs specifically allege that the defendant corporations have failed to engage in a zero waste policy, an acceptable enclosed waste management system, have failed to maximize environmental rehabilitation, have failed to engage in an appropriate acid leachate control policy, have failed to adequately monitor the destruction of the natural resources of Irian Jaya (West Papua) and have disregarded and breached its international duty to protect one of the last great natural rain forests and alpine areas in the world.

CULTURAL GENOCIDE

41. The plaintiffs specifically reallege each and every paragraph of the foregoing Complaint as if repeated herein.

42. The plaintiffs allege that the human rights violations and the eco-terrorism engaged in by defendant corporations have destroyed the rights and culture of the Amungme and other Indigenous tribal people.

43. Since defendant corporations have commenced their operations, many of the Amungme people have displaced and relocated to areas in the lowlands away from their cultural heritage of highland living.

44. Other Indigenous tribal people, including but not limited to the Komora Tribe, have met the same fate.

45. The egregious human rights and environmental violations, which have terrorized the tribal communities of the Amungme and other Indigenous Tribal people, destroyed their natural habitats and caused dislocation of the populations have resulted in the purposeful, deliberate, contrived and planned demise of a culture of indigenous people whose rights were never considered, whose heritage and culture were disregarded and the result of which is ultimately to lead to the cultural demise of an unique pristine heritage which is socially, culturally and anthropologically irreplaceable.

DAMAGES

46. Plaintiff and others similarly situated incurred damages proximately and directly caused by the acts and/or omissions of defendant corporations set out heretofore said damages which include but are not necessarily limited to:

  1. bodily injury;

  2. physical injury in the past;

  3. bodily injury and physical impairment in the future;

  4. physical pain, suffering and mental anguish in the past;

  5. physical pain, suffering and mental anguish in the future;

  6. emotional distress in the past;

  7. emotional distress in the future;

  8. increased risks of disease or other ailments;

  9. cost of medical monitoring with regards to toxic exposure;

  10. medical expenses and services in the past;

  11. medical expenses and services in the future;

  12. disfigurement;

  13. loss of earning capacity;

  14. devaluation and/or loss in use and enjoyment of personal property;

  15. devaluation and loss of vegetation;

  16. loss of consortium; and

  17. loss of services.

47. Additionally, all plaintiffs are entitled to punitive damages or exemplary damages as may be shown by the grossly negligent acts and omissions of defendant corporations as well as human rights violations and cultural genocide amounting to a sum to be determined hereinafter.

REMEDIES

48. Require defendant corporations to put into affect (rsb: sic):

  1. an appropriate tailing disposal policy to implement a waste rock dumping policy;

  2. to cease and desist all open pit mining operations;

  3. to release all relevant environmental data;

  4. the defendant corporations to fund an independent soil and monitoring program;

  5. to force defendant corporations to demilitarize its security forces;

  6. to require the implementation of mediation panels between FREEPORT-McMoRan and the indigenous people; and

  7. to create a trust fund to be administered, operated and for the exclusive sole benefit of the indigenous people.

The plaintiff, individually and on behalf of those similarly situated, assert that damages against defendant corporations total Six Billion Dollars ($6,000,000,000.00) exclusive of punitive damages.

The plaintiff requests a trial by jury.

WHEREFORE, plaintiff prays:

(1) that process in due form of law, according to the course and practice of this Honorable Court, issue against said defendants;

(2) that after due proceedings be had, judgment be entered in the favor of plaintiff, TOM BEANAL AND OTHER SIMILARLY SITUATED, and against the defendants, jointly, severally and in solido, for damages and punitive damages in an amount to compensate for the aforedescribed conduct of the defendants in an amount to be determined by this Honorable Court, plus prejudgement interest from the date of filing, costs, punitive damages and that the plaintiff(s) have such other relief as in law and justice they may be entitled to recover.

Respectfully submitted:

REGAN, MANASSEH & BOSHEA, P.L.C.

(signature)

MARTIN E. REGAN, JR.
LSBA No. 11153
Attorney for Plaintiffs
2125 St. Charles Avenue
New Orleans, LA 70130
(504) 522-7260

PLEASE SERVE:

FREEPORT McMoRan, INC.
C.T. Corporation Systems
8850 United Plaza
Baton Rouge, Louisiana 70809

FREEPORT-McMoRan COPPER AND GOLD, INC.
C.T. Corporation Systems
8850 United Plaza
Baton Rouge, Louisiana 70809

The preceding text is the law suit filed by Tom Beanal against Freeport in New Orleans on April 29, 1996. The original appears to have been rather hastily typed: there are an unusual number of typographical errors in the original. The text above was typed by Robert S. Boyer from a copy received from the law firm that filed the suit. The New Orleans Times-Picayune reported on May 21, 1996 that "Beanal on Thursday filed an amended complaint almost identical to the first complaint."

There were media reports shortly after this suit was filed that the suit had been withdrawn, but this was contradicted by news that the suit had never been withdrawn. It appears that Beanal did have some doubts, but the suit was apparently never officially withdrawn. There were later confusing reports that the law suit was going to be reinstated, but in fact, since it was never officially withdrawn in the first place, there was no need to reinstate it. Apparently, Tom Beanal now fully supports the suit in a form "almost identical" to the one originally filed.

Needless to say, Freeport strongly denies the allegations contained in the text above! For example, about this suit filing, Freeport spokesman Garland Robinette has said "There is no basis in law or in fact for the claims." Richard C. Adkerson, vice chairman of Freeport-McMoRan Inc. and chief financial officer of Freeport-McMoRan Copper & Gold, called the suit "frivolous and opportunistic." One example of a strenuous denial by Freeport of any involvement by its personnel in human rights abuses may be found in, a letter from Freeport-McMoRan Vice President Tom Egan.

On April 9, 1997 two conflicting reports were issued about the status of this law suit.

  • Beanal Suit to Continue. From Martin E. Regan, Jr., Tom Beanal's lawyer, via jfvalve@tlxnet.net.

    "The United States District Court, Eastern District of Louisiana, on April 9, 1997, issued its ruling in connection with Freeport's motion to dismiss Tom Beanal's suit in Federal Court here in New Orleans, Louisiana. Judge Duval found that Tom Beanal's claims against Freeport for tribal genocide and human rights violations had a basis in law. However, Judge Duval is requiring the plaintiff, Tom Beanal, to amend his lawsuit to state with additional detail the facts underlying Freeport's human rights violations and tribal genocide. Judge Duval rejected Mr. Beanal's environmental claims finding that as destructive as Freeport's corporate policies are to the natural habitat of Indonesia, there is no definitive international environmental law which applies to a private corporation. The plaintiff's counsel, Martin E. Regan, Jr. is encouraged by the United States District Court's detailed ruling which allows Mr. Beanal to proceed against Freeport for serious human rights violations and on behalf of the Amungme people for the intentional destruction of their tribe resulting from the environmental and human rights policies of Freeport. Martin E. Regan, Jr. stated from New Orleans, Louisiana that `Mr. Beanal's lawsuit against Freeport will continue. And we will comply with Judge Duval's instructions to provide a more definite statement of the factual allegations which support our claims of tribal genocide and human rights violations against the indigenous people of Indonesia by Freeport.'"

  • Judge Duval's ruling, which dismissed the Beanal lawsuit.