UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) VENANCIO AGUASANTA ARIAS, ) et al., ) ) Plaintiffs, ) ) Civil Action No. 01-1908 (RWR) v. ) ) Consolidated with Civil Action DYNCORP, et al., ) No. 07-1042 (RWR) for case ) management and discovery Defendants. ) purposes ______________________________)

MEMORANDUM OPINION

The Ecuadorian provinces of Sucumbios, Carchi, and

Esmeraldas (collectively “provincial plaintiffs”) and

approximately 3,200 individual plaintiffs brought this action

against the defendants, asserting violations of the Alien Tort

Claims Act (“ATCA”),

, and international and

domestic common law stemming from the defendants’ contract with

the U.S. government to spray pesticides over cocaine and heroin

farms in Colombia. The defendants have moved for judgment on the

pleadings under Federal Rule of Civil Procedure 12(c) or, in the

alternative, for summary judgment under Rule 56(c). They seek to

dismiss the claims of the provincial plaintiffs on the grounds

that the provincial plaintiffs lack standing to sue because their

claims are too remote, the doctrine of parens patriae does not

apply here to give the provincial plaintiffs standing, and they

do not have the legal capacity to sue in U.S. courts. Because

the provincial plaintiffs do not have Article III or parens -2-

patriae standing, the defendants’ motion, treated as a

jurisdictional motion under Rule 12(b)(1), will be granted and

the provincial plaintiffs’ claims will be dismissed.

BACKGROUND

In the late 1990s, the United States government entered into

a contract with the government of the Republic of Colombia, under

a plan called “Plan Colombia,” to eradicate drug production and

exportation from Colombia. (First Am. Consol. Compl. (“Consol.

Compl.”) ¶ 12.) The U.S. government then contracted with the

defendants to conduct aerial spraying to eradicate Colombian coca

and heroin poppy crops. (Id. ¶ 13.) The plaintiffs allege that

during the course of the defendants’ spraying, “[h]eavy clouds of

liquid spray dropped from the planes, shifted with the wind, and

repeatedly fell on the homes and lands of [p]laintiffs.” (Id.

¶ 38.) The chemicals from the spraying allegedly went “beyond

their intended Colombian targets,” entered into Ecuador, and

injured humans, livestock, vegetation, and water. (Id. ¶¶ 18,

20.)

As a result of the alleged harm caused by the spraying, the

individual and provincial plaintiffs brought this action

asserting violations of the ATCA and various international and

domestic common law torts. The provincial plaintiffs bring suit

“in their own right and in their parens patriae capacity on

behalf of their citizens and residents.” (Id. ¶ 7.) The -3-

provinces allege that they “have suffered damage to their natural

resources and have expended, and will be required to expend in

the future, funds to remediate the situation and to address their

citizens’ health, security, and property.” (Id. ¶ 1.) The

defendants move to dismiss the claims brought by the provincial

plaintiffs, arguing that they lack both standing and the capacity

to sue. The provincial plaintiffs oppose the dismissal.

DISCUSSION

“Before a court may address the merits of a complaint, it

must assure that it has jurisdiction to entertain the claims.”

Marshall v. Honeywell Tech. Solutions, Inc.,

(D.D.C. 2009) (internal quotation marks omitted). “Lack of

standing is a defect in subject matter jurisdiction.” Teva

Pharm. USA, Inc. v. Sebelius,

(D.D.C.

2009) (reversed on other grounds) (citing Haase v. Sessions,

(D.C. Cir. 1987)). Because the defendants

challenge the provincial plaintiffs’ standing, the defendants’

motion will be treated as one to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1).

“In considering whether a plaintiff has standing, a court

accepts as true all of the factual allegations contained in the

complaint.” Unity08 v. Fed. Election Comm’n,

(D.D.C. 2008) (reversed on other grounds) (citing Artis v.

Greenspan,

(D.C. Cir. 1998)); see also -4-

Chavous v. D.C. Fin. Responsibility and Mgmt. Assistance Auth.,

(D.D.C. 2001) (“When reviewing a standing

challenge . . . trial courts must accept as true all material

allegations of the complaint[.]” (internal quotation marks

omitted)). “Although the District Court may in appropriate cases

dispose of a motion to dismiss for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1) on the complaint

standing alone, where necessary, the court may consider the

complaint supplemented by undisputed facts evidenced in the

record[.]” Coal. for Underground Expansion v. Mineta,

(D.C. Cir. 2003) (internal quotation marks omitted).

I. ARTICLE III STANDING

Article III standing requires “(1) injury in fact,

(2) causation, and (3) redressability.” Fund for Animals, Inc.

v. Norton,

(D.C. Cir. 2003) (citing Lujan v.

Defenders of Wildlife,

(1992)). A

plaintiff’s alleged injury must be “concrete and particularized”

and “actual or imminent” and fairly traceable to the defendant’s

action. Lujan,

. “[T]he injury in fact test

requires more than an injury to a cognizable interest. It

requires that the party seeking review be himself among the

injured.” Wilderness Soc’y v. Norton,

(D.C.

Cir. 2006) (internal quotation marks omitted). In order to meet

the Lujan standard, plaintiffs must establish standing as to each -5-

of its claims,

, and “[i]n reviewing the standing

question, [a court] must be careful not to decide the questions

on the merits for or against the plaintiff, and must therefore

assume that on the merits the plaintiffs would be successful in

their claims.” Amador County, Cal. v. Kempthorne,

(D.D.C. 2009) (internal quotation marks omitted).

The provincial plaintiffs bring suit, in part, on their own

behalf, stating that they “have been damaged in their economies,

provincial lands, waters and budgets[,] . . . [that] [t]hey have

suffered increased housing costs, education costs, costs

associated with the housing and feeding of refugees[,]

. . . [and that,] as the political subdivisions responsible for

protecting the environment, [they] face remediation costs.”

(Consol. Compl. ¶ 32.) The defendants argue that the provinces’

injuries derive from the individual plaintiffs’ injuries and are

too remote to establish standing. For support, the defendants

rely primarily on cases that examine the question of whether a

plaintiff had pled an injury that is sufficiently direct to

survive a motion to dismiss for failure to state claim. (See

Defs.’ Reply Brief in Supp. of Their Mot. to Dismiss the Three

Provincial Pls. at 7-8.) For example, in In re

Tobacco/Governmental Health Care Costs Litig.,

(D.D.C. 1999), the Republic of Guatemala brought tort and

negligence claims against several tobacco companies seeking to -6-

recover health care costs it incurred in treating its citizens’

smoking-related injuries.

. The district court

dismissed Guatemala’s claims because “all of Guatemala’s alleged

injuries [were] too remote to have been proximately caused by

defendants’ misconduct.”

. While this analysis could

address a motion asserting that a complaint fails to state a

traditional tort claim, a “defect in the merits of a party’s

claim is not the basis upon which to determine standing.”

Wilderness Soc’y,

.

The defendants also rely on cases where courts have used the

proximate cause standard to determine whether a plaintiff’s

injuries were too remote to confer standing. (See Defs.’ Revised

Reply Brief in Supp. of Their Mot. to Dismiss the Three

Provincial Pls. at 9-10.) In Ganim v. Smith and Wesson Corp.,

(Conn. 2001), for example, the City of Bridgeport,

Connecticut and its Mayor sued gun manufacturers, trade

associations and gun retailers, alleging that as a result of the

defendants’ failure to design handguns to prevent unauthorized

and unintended gun use, screen the distributors’s and retailers’s

background and business practices, and adequately warn users of

gun danger, the city suffered increased police, court and prison

costs and had to impose increased tax burdens on taxpayers.

. The plaintiffs also claimed loss of investment,

economic development and tax revenues due to lost productivity, -7-

and victimization of their citizens.

. The court held

that the plaintiffs lacked standing to assert their claims

because the link connecting the defendants’ alleged misconduct to

the plaintiffs’ alleged harm involved an attenuated connection

between gun manufacturers, distributors, wholesalers, retailers,

and unauthorized buyers and users.

. Similarly,

in Penelas v. Arms Tech., Inc., No. 99-1941 CA-06,

(Fla. Cir. Ct. Dec. 13, 1999), the Mayor of Miami-Dade

County brought an action against gun manufacturers, a gun

distributor, and three trade associations, asserting various

negligence claims and seeking to recover the costs incurred in

providing police, fire, emergency, court, prison and other

related services as a result of various homicidal, suicidal and

accidental shootings in the county.

. The court held

that the county lacked standing because the damages were purely

derivative of damages suffered by third parties and too remote to

be recoverable.

; see also Camden County Bd. of Chosen

Freeholders v. Beretta U.S.A. Corp.,

(D.N.J. 2000) (holding that county lacked constitutional standing

to assert against gun manufacturers negligence claims seeking

compensation for manufacturers’ alleged reckless and negligent

handgun marketing and distribution because its theory of

causation involved “a great number of links in the causal chain”

and county would have been required to show that causation was -8-

not severed by distributor, retailer, or purchaser illegal

conduct, or gun theft); District of Columbia v. Beretta U.S.A.

Corp., No. Civ. A. 0428-00,

, at *27 (D.C. Super.

Dec. 16, 2002) (reversed in part on other grounds) (dismissing

District of Columbia’s claims against gun manufacturers seeking

monetary damages and injunctive relief for economic impact of gun

violence in the District because claims were too remote to confer

standing).

The provincial plaintiffs allege three category of harms,

including (1) direct monetary damages flowing from reduced

revenues, increased costs, or a combination of the two; (2)

environmental damage; and (3) remediation and relocation costs.

(Pls.’ Revised Opp’n to Defs.’ Mot. to Dismiss the Three

Provincial Pls. on the Pleadings or, in the Alternative, for

Summ. J. (“Pls.’ Revised Opp’n”), Ex. B ¶ 8.) Monetary damages

may constitute an injury-in-fact to satisfy the first prong of

the standing analysis. See, e.g., Info. Sciences Corp. v. United

States,

(Fed. Cl. 2008) (noting that

plaintiff’s alleged monetary damages establish injury-in-fact

where plaintiff challenged government’s award of government

contract to another company after plaintiff spent $1.625 million

in preparing for bid procurement, submitting initial and revised

proposals, and participating in procurement activities). The

provincial plaintiffs assert monetary damages reflected here in -9-

budget deficits that were “quantified by examining the budgets

for the Plaintiffs and for the other Ecuadorian Provinces from

1990-2007.” (Pls.’ Revised Opp’n, Ex. B ¶ 22.) The provincial

plaintiffs rely on an expert report prepared by Dr. Henry H.

Fishkind (the “Fishkind report”) which states that while the

provinces typically enjoy balanced budgets, they have experienced

significantly higher expenses since Plan Colombia that have

resulted in budget deficits. (Id.)

The provincial plaintiffs, however, fail to present facts to

support the conclusion that Plan Colombia caused the direct

monetary damages of budget deficits complained of here. In fact,

the Fishkind report acknowledges that the current budget data for

Sucumbios are affected by oil workers’ strikes that have demanded

additional spending and services. (Pls.’ Revised Opp’n, Ex. B

¶ 26.) Also, other economic and environmental factors have

contributed to other Ecuadorian provinces’ budget deficits. The

Fishkind report states that these provinces suffer from budget

deficits due to a volcanic eruption and floods, and “difficulty

enforcing . . . tax collections.” (Pls.’ Revised Opp’n, Ex. B

¶¶ 29, 30.) Thus, there is no factual basis for concluding that

the budget deficits claimed here were caused directly by Plan

Colombia. Because several unknown factors could have caused the

“unexpected pressure on their current budgets” (Pls.’ Revised

Opp’n, Ex. B ¶ 31), the provincial plaintiffs’ claims of direct -10-

monetary injury do not satisfy the causation element of the

standing analysis. See, e.g., Ganim,

(noting

that the fact that “there are numerous steps between the conduct

of the . . . defendants and the harms suffered by the plaintiffs”

is “strongly suggestive of remoteness”). The provincial

plaintiffs’ claims of direct monetary damage causing provincial

budget deficits do not support Article III standing.

The provinces’ environmental damage claims are broken into a

total of five sub-categories including: agricultural activities,

sustainable non-timber activities, sustainable timber activities,

environmental services, and cattle and small animal production.

(Pls.’ Revised Opp’n, Ex. B ¶ 33, Table 4.) These “damages

include estimates for the direct loss [of] agricultural

production as well as additional losses to forestry

production[,]” which are “based on market prices for the

agricultural and timber products[.]” (Id. ¶ 34.) In an effort

to define these sub-categories, the Fishkind report states that

the sustainable non-timber activities include “hunting and the

use, production and gathering of fruits, palms, fibers, and

medicinal plants” and that “the environmental services include

water recharge, recreational values, scenic beauty, genetic

resources and carbon sequestration.” (Id.) Taking as true the

allegation that agricultural, forestry, and animal production

have suffered as a result of Plan Colombia, the provincial -11-

plaintiffs fail to allege any possessory interest or title in the

injured livestock, animals, crops and timber. Similarly, taking

as true the assertion that Plan Colombia has had a negative

impact upon the agricultural and sustainable timber and non-

timber activities, there are no allegations, for example, that

these timber and agricultural activities are undertaken on the

provinces’ behalf or that the provincial governments earn direct

revenue from these activities. Although the complaint broadly

alleges damage to provincial lands (see Consol. Compl. ¶ 32), it

does not allege that the affected land in these provinces is land

in which the provincial plaintiffs, rather than others, hold some

custodial or possessory interest or title.

The provincial plaintiffs’ responses to the defendants’

interrogatory requests support a finding that the provinces’

environmental damage claims are derivative of the individual

plaintiffs’ claims. For example, in support of the assertion

that “‘Plan Colombia’ herbicide caused damaged to natural

resources[,]” Sucumbios cites “testimon[y] of the public

regarding the effects on their crops and the impossibility of

getting the land to produce[.]” (Pls.’ Revised Opp’n, Ex. D at 7

(emphasis added).) Further, Sucumbios’ citizens and residents

allege that they “have not only lost crops, but also the basic

products and foods for their own subsistence, due to the

fumigations over their lands.” (Id. at 11 (emphasis added).) -12-

There are also allegations that Esmeraldas’ “citizens have lost

their land in many cases due to the impossibility for the crops

to grow in fumigated zones[.]” (Pls.’ Revised Opp’n, Ex. F at 13

(emphasis added).) Because these environmental injuries are

derivative of the injuries allegedly suffered by the individual

plaintiffs and there is no allegation that environmental damage

has affected lands in which the provincial plaintiffs possess a

protectable interest, the provincial plaintiffs’ claims of

environmental damage are not sufficient to satisfy the injury-in-

fact element of the standing analysis.

Finally, the provincial plaintiffs allege damages in the

form of remediation and relocation costs associated with the

environmental damage to the communities. (Pls.’ Revised Opp’n,

Ex. B ¶ 38.) The Fishkind report states that there are “ongoing

difficulties in crop and small animal production in the affected

areas” and that “[t]here is a significant risk that the

[environmental] damage may be long lasting.” (Id.) The report

states further that “the environmental damages to the communities

[will] continue, unless there is remediation” and that a “more

practical solution . . . is the relocation of the residents in

the most affected area[.]” (Id. ¶¶ 39-40.) There are, however,

no factual allegations to support the provincial plaintiffs’

claim that they bear direct responsibility for any remediation

costs. The plaintiffs’ consolidated complaint asserts broadly -13-

that the provinces are responsible for “protecting the

environment” (Consol. Compl. ¶ 32), but noticeably absent from

the complaint and supporting documents are specific assertions

that the provinces are financially responsible for cleaning up

all lands and waters allegedly damaged by Plan Colombia.

Governments can carry out a responsibility for protecting the

environment in countless ways -- e.g., licensing, imposing use

restrictions, requiring emission and discharge controls -- that

impose no obligation on them to bear the cost of remedying

environmental harm not caused by them especially to natural

resources not owned by them. The provincial plaintiffs provide

evidence that “some inhabitants from the rural area [in Carchi]

. . . started reporting that river waters had a sour taste to it

and that the concentration of the chemical in the Plan Colombia

herbicide was evident in the rivers.” (Pls.’ Revised Opp’n, Ex.

E at 9.) However, the provincial plaintiffs do not state that

they are solely or even partially responsible for cleaning or

purifying any bodies of water affected by Plan Colombia. They do

not allege or establish that remediation costs are not amounts

assumed by individual plaintiffs, the national government, the

polluters or other third parties.

The provincial plaintiffs also claim damages associated with

relocating, housing, educating, feeding, and providing medical

care for the communities affected by Plan Colombia. However, -14-

like the provincial plaintiffs’ other claims, there is no factual

basis to support a conclusion that these costs will be borne by

the provinces as opposed to private parties, the national

government, or national or international relief organizations.

Moreover, many of these claims –- particularly the claims related

to the depleted health conditions of the citizens –- are exactly

the type of third-party, derivative claims that the Article III

standing inquiry was designed to avoid. See Wilderness Soc’y,

(“[T]he party seeking review [must] be himself

among the injured.”). That Plan Colombia allegedly has affected

individual citizens’ welfare –- by, for example, resulting in an

increase in respiratory and digestive problems, allergic

reactions, or even death (see Pls.’ Revised Opp’n, Ex. D at 11;

Ex. E at 8) -- does not result in a direct or otherwise non-

attenuated injury to the provinces. Rather, this is the type of

claim that an individual plaintiff is in the best position to

raise and pursue, and it is the very type of injury that the

individual plaintiffs have alleged here. (See, e.g., Consol.

Compl. ¶¶ 61 (“Plaintiffs have been injured to their person[.]”),

65 (“Plaintiffs have suffered injuries to their persons[.]”).)

The relocation and remediation damages, then, do not satisfy the

injury-in-fact prong of the constitutional standing analysis.1

1 The provinces also claim that crime rates have increased since Plan Colombia. (See Pls.’ Revised Opp’n, Ex D at 13; Ex. E at 9). However, much like the claims of the Mayor of Miami-Dade -15-

II. PARENS PATRIAE STANDING

The provincial plaintiffs also seek to proceed in a parens

patriae capacity. Parens patriae is a doctrine that is reserved

for U.S. States. It is a narrowly construed, judicially created

exception to the “normal rules of standing applied to private

citizens in recognition of the special role that a State plays in

pursuing its quasi-sovereign interests in ‘the well-being of its

populace.’” Estados Unidos Mexicanos v. DeCoster,

(1st Cir. 2000) (quoting Alfred L. Snapp & Son, Inc. v.

Puerto Rico,

(1982)). “In order to maintain [a

parens patriae] action, the State must articulate an interest

apart from the interests of particular private parties, i.e., the

State must be more than a nominal party.” Id. at 336.

Specifically, “[t]he State must express a quasi-sovereign

interest” such as in “the health and well-being - both physical

and economic - of its residents in general . . . [or] in not

being discriminatorily denied its rightful status within the

federal system.” Id. (citing Alfred L. Snapp & Son, Inc.,

). The rationale behind extending parens patriae

standing is that “States have surrendered certain aspects of

County in Penelas, these claims are derivative of damages suffered by the crime victims and likely would involve a great number of links in the causal chain, and thus are too remote to confer standing. See Penelas,

, at *2; see also Camden County Bd. of Chosen Freeholders,

- 58. -16-

their sovereignty to the federal government and, in return, are

given recourse to solve their problems with other States.”

.

The D.C. Circuit, however, has held that parens patriae

“does not create a boundless opportunity for governments to seek

recovery for alleged wrongs against them or their residents.”

Serv. Emps. Int’l Union Health and Welfare Fund v. Philip Morris

Inc.,

(D.C. Cir. 2001). In particular, the

Circuit has precluded foreign nations from asserting parens

patriae standing “unless there is a clear indication by the

Supreme Court or one of the two coordinate branches of government

to grant such standing[,]”

, and “[t]he Supreme Court

has never recognized parens patriae standing in a foreign nation

where only quasi-sovereign interests are at stake.” DeCoster,

.

Notwithstanding this Circuit’s precedent, the provincial

plaintiffs argue that they may bring their claims in a parens

patriae capacity because they are provinces, not foreign nations.

This distinction is of little consequence, however. The

federalism concerns implicated by the relationship between the

U.S. States and the U.S. federal government do not exist between

foreign provinces and the U.S. federal government. The

provinces, as political subdivisions of Ecuador, do not claim and

have not shown that they have conceded any of their sovereignty -17-

to the U.S. government. See, e.g., State of Sao Paulo of the

Federative Republic of Brazil v. Am. Tobacco Co.,

(Del. 2007) (holding that the Republic of Panama and State

of Sao Paulo, Brazil did not have parens patriae standing to

bring suit on behalf of their citizens in part because they had

“retained the full array of sovereign rights that the American

States and Puerto Rico had ceded to the United States

government”). Moreover, “the theoretical underpinning of parens

patriae standing is to ‘prevent[] . . . injury to those who

cannot protect themselves.’” In re Tobacco/Governmental Health

Care Costs Litig.,

(alterations in

original) (quoting Alfred L. Snapp & Son, Inc.,

).

Here, the individual plaintiffs have counsel representing them,

pursuing and protecting their interests in this suit, and there

has been no need demonstrated for the provincial plaintiffs to

intercede on their behalf. See, e.g., Late Corp. of the Church

of Jesus Christ of Latter-Day Saints v. United States,

(1890) (noting that it is often necessary for a state to

intercede in its parens patriae capacity to prevent injury to

infants, insane persons, and persons who “cannot act for

themselves” and “are often incapable of vindicating their

rights”). The provincial plaintiffs have not demonstrated parens

patriae standing to sue. -18-

CONCLUSION

Because the provincial plaintiffs’ injuries are not

sufficient to satisfy Article III standing and the provincial

plaintiffs do not have standing under the doctrine of parens

patriae, the defendants’ motion, treated as one to dismiss under

Rule 12(b)(1), will be granted and the provincial plaintiffs’

claims will be dismissed. An appropriate Order accompanies this

Memorandum Opinion.

SIGNED this 15th day of September, 2010.

/s/ RICHARD W. ROBERTS United States District Judge