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MEMORANDUM OF THE
MINISTRY OF PETROLEUM AND MINERAL RESOURCES
OF THE KINGDOM OF SAUDI ARABIA AS AMICUS CURIAE
IN SUPPORT OF SERVED DEFENDANTS MOTION TO DISMISS
II.
III.
IV.
V.
BACKGROUND .................................................................................................................5
VI.
A.
B.
C.
ARGUMENT.....................................................................................................................13
A.
B.
2.
2.
3.
CONCLUSION..............................................................................................................................25
-i-
FEDERAL CASES
Page(s)
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (1962)................................................19, 22, 23, 24, 25
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923 (1964) ..........................17, 18
Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, 203 F.3d 1028
(8th Cir. 2000)..........................................................................................................................16
Bulk Oil (Zug) A.G. v. Sun Co., 583 F. Supp. 1134 (S.D.N.Y. 1983) ...........................................15
Callejo v. Bancomer, S.A., 764 F.2d 1101 (5th Cir. 1985) ......................................................17, 18
Compania de Gas de Nuevo Laredo, S.A. v. Entex, Inc., 686 F.2d 322 (5th Cir. 1982)................17
Dickson v. Ford, 521 F.2d 234 (5th Cir. 1975)........................................................................19, 22
Exxon Corp. v. Commr, 66 T.C.M. (CCH) 1707, 1993 WL 534017 (U.S.T.C. Dec.
22, 1993), affd Texaco, Inc. v. C.I.R., 98 F.3d 825 (5th Cir. 1996)........................................14
Haig v. Agee, 453 U.S. 280, 101 S. Ct. 2766 (1981) .....................................................................19
Hargrove v. Underwriters at Lloyds, London, 937 F. Supp. 595 (S.D. Tex. 1996).....................17
Hunt v. Mobil Oil Corp., 550 F.2d 68 (2d Cir. 1977) ...................................................................16
Interam. Ref. Corp. v. Texaco Maracaibo, Inc., 307 F. Supp. 1291 (D. Del. 1970) ....................16
Intl Assn of Machinists & Aerospace Workers v. OPEC,
477 F. Supp. 553 (C.D. Cal. 1979) (IAM I)..........................................................................16
Intl Assn of Machinists & Aerospace Workers v. OPEC,
649 F.2d 1354 (9th Cir. 1981) (IAM II) .................................................15, 18, 20, 21, 24, 25
Japan Whaling Assn v. Am. Cetacean Socy,
478 U.S. 221, 106 S. Ct. 2860 (1986)................................................................................18, 23
Jones v. Petty Ray Geophysical Geosource, Inc., 722 F. Supp. 343 (S.D. Tex. 1989) .................14
O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A.,
830 F.2d 449 (2d Cir. 1987).....................................................................................................17
Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum,
577 F.2d 1196 (5th Cir. 1978) ................................................................... 18-19, 22, 23, 24, 25
Ricaud v. Am. Metal Co., 246 U.S. 304, 38 S. Ct. 312 (1918) ......................................................16
Saldano v. OConnell, 322 F.3d 365 (5th Cir. 2003).....................................................................19
-ii-
FEDERAL STATUTES
Fed. R. Civ. P. 12(b)(1)....................................................................................................................2
Fed. R. Civ. P. 12(b)(6)....................................................................................................................2
Fed. R. Civ. P. 44.1..........................................................................................................................3
Sherman Act, 15 U.S.C. 1 et seq.........................................................................................2, 3, 16
U.S. Const. art. I, 8, cl. 3.............................................................................................................20
U.S. Const. art. II, 2, cl. 2 ...........................................................................................................20
U.S. Const. art. II, 3 ....................................................................................................................20
U.S. Const. art. III..........................................................................................................................18
iii
INTERNATIONAL AUTHORITIES
Statement of the U.S. Representative to the United Nations,
U.N. GAOR, 28th Sess., 2203rd Plen. Mtg., U.N. Doc. A/PV.2203 (1973)..................... 14-15
U.N. Framework Convention on Climate Change (New York, May 9, 1992),
1771 U.N.T.S. 107, 31 I.L.M. 849 (1992), entered into force Mar. 21, 1994 .........................14
U.N. Resolution on Permanent Sovereignty Over Natural Resources,
G.A. Res. 1803 (XVII), 17 U.N. GAOR, 2d Comm. 327,
U.N. Doc. A/5217 (1962) ........................................................................................................14
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MEMORANDUM OF THE
MINISTRY OF PETROLEUM AND MINERAL RESOURCES
OF THE KINGDOM OF SAUDI ARABIA AS AMICUS CURIAE
IN SUPPORT OF SERVED DEFENDANTS MOTION TO DISMISS
The Ministry of Petroleum and Mineral Resources of the Kingdom of Saudi Arabia (the
Ministry) submits this Memorandum as amicus curiae in support of the Served Defendants
Motion to Dismiss the Complaints (Motion to Dismiss).1
I.
this Courts January 23, 2008 Order (the Order), all of the plaintiffs except the Spectrum
Stores plaintiffs jointly filed an Amended and Consolidated Complaint on February 8, 2008. On
April 11, 2008, the Served Defendants2 moved to dismiss the complaints for lack of subject
The Ministry understands that it is not required to submit a motion for leave to appear as amicus curiae. See In re
Refined Petroleum Products Antitrust Litig., Sched. Conf. Tr. at 24:13-21; 25:1-19 (Jan. 23, 2008).
2
The Served Defendants are Aramco Services Company; Saudi Petroleum International, Inc.; Saudi Refining, Inc.;
PDV America, Inc.; PDV Holding, Inc.; PDV Midwest Refining, LLC; CITGO Petroleum Corporation; Lukoil
Americas Corporation; Lukoil Pan Americas LLC; Getty Petroleum Marketing Inc.; and Motiva Enterprises LLC.
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and for failure to state a claim upon
which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). This amicus curiae brief
supports the Served Defendants Motion to Dismiss.
II.
grounds of the act of state doctrine, for failure to state a claim upon which relief can be granted
(Fed. R. Civ. P 12(b)(6)); under the political question doctrine, for lack of subject matter
jurisdiction (Fed. R. Civ. P. 12(b)(1)), and related principles of international comity.
III.
Kingdom or Saudi Arabia), the worlds largest producer of crude oil and a foreign sovereign
entitled to immunity from jurisdiction and suit in U.S. courts, takes the extraordinary step of
appearing as an amicus curiae to convey the strength of its objection to the allegations made and
relief sought in these consolidated cases. Both complaints allege that the crude oil production
decisions made by the Member States of the Organization of the Petroleum Exporting Countries
(OPEC), as well as other petroleum producing countries, are the central element of an unlawful
conspiracy under the Sherman Act (15 U.S.C. 1 et seq. (2006)), and that the defendants in
some manner were involved in that conspiracy. Plaintiffs allegations would necessarily require
the Court to examine the validity and effect under U.S. law of the sovereign decisions of oil
producing states, including Saudi Arabia, as to the management and control of their natural
resources.
Oil is a primary natural resource of the Kingdom and provides critical revenue for the
well-being of the Kingdoms people. Under Saudi Arabian law, the State owns all natural
resources, including oil, and makes all decisions regarding levels of oil production and export in
view of the present and future needs of the Kingdom and its people, including the need to
conserve the Kingdoms patrimony of non-renewable natural resources.3 Any judgment by the
Court as to the validity and effect under U.S. law of the Kingdoms crude oil production
decisions would interfere with the Kingdoms exercise of its sovereign authority and with the
sensitive energy policy issues that play an important role in the bilateral foreign relations
between Saudi Arabia and the United States, conducted at the highest levels of each government.
The complaints should be dismissed by application of the act of state doctrine. Saudi
Arabias decisions related to the production and export of oil, its primary natural resource, are
inherently sovereign acts of state, as management of a States natural resources is an exercise of
sovereign authority under Saudi law, international law and U.S. law. To resolve the complaints,
this Court would have to consider whether such public acts of foreign states, including Saudi
Arabia, comprise an unlawful conspiracy under the Sherman Act. Because the act of state
doctrine requires U.S. courts to respect the validity of the public acts of foreign sovereigns and to
accept them as a rule of decision in U.S. courts, it precludes such a finding in these cases.
Application of U.S. law to the Kingdoms crude oil production level decisions would intrude
upon and violate the Kingdoms exercise of its fundamental sovereign right to control its natural
resources. See infra pp. 13-18.
The complaints also should be dismissed for lack of a justiciable question because they
raise a political question that the U.S. Constitution entrusts to the Executive and Legislative
Branches. Through successive administrations over decades the United States deliberately has
pursued a foreign policy aimed at securing stable and reliable sources of oil, gasoline, and other
See infra pp. 5-8. Pursuant to Fed. R. Civ. P. 44.1, the Ministry submits the following opinions of Saudi law: the
Opinion of Dr. Motleb A. Al-Nafissah (Al-Nafissah Op.), the Secretary General of the Supreme Council for
Petroleum & Mineral Affairs (attached as Exhibit A), and the Independent Expert Opinion of Dr. Abdulaziz H. AlFahad (Al-Fahad Op.) (attached as Exhibit B). References to Exhibits in that Appendix are to Ex. __.
oil-based products through cooperative diplomacy with oil producing nations. The United States
depends upon imported oil, and the security of energy supply is a vital part of U.S. national
security. U.S. foreign relations with oil producing nations require a complex balancing of
interests that is within the particular expertise of the elected branches. Plaintiffs claims would
require this Court to sit in judgment on decisions made by other sovereign nations as to the
management of their primary natural resources, and thus to interject itself into this complex area
of U.S. foreign relations without regard to the likely political repercussions for the conduct of
U.S. foreign policy. The complaints therefore raise a political question that should be addressed
by the elected branches, and the Court should dismiss this case as non-justiciable under the
political question doctrine. See infra pp. 18-25.
IV.
and the worlds largest exporter of crude oil and natural gas liquids. Crude oil is the Kingdoms
principal natural resource and the foundation of its economy.4
production and export determinations are inextricably intertwined with its continued economic
growth, conservation of its non-renewable resources, the well-being of its people, and the aid it
renders to developing nations.5
As discussed above, the resolution of the complaints requires the Court to determine
whether the public acts of sovereign nations, including Saudi Arabia, as to their management of
the production of crude oil violate U.S. law. Any such judgment and any relief that might be
In 2005, oil export revenues accounted for approximately 90 percent of Saudi Arabias total export earnings, 70-80
percent of its State revenues, and 44 percent of Saudi Arabias gross domestic product. See U.S. Department of
Energy, Energy Information Administration, EIA Country Profile: Saudi Arabia at 1 (Feb. 2007), available at
http://www.eia.doe.gov/emeu/cabs/Saudi_Arabia/pdf.pdf.
5
Central
Intelligence
Agency,
The
World
Factbook:
https://www.cia.gov/library/publications/the-world-factbook/geos/sa.html.
Saudi
Arabia,
available
at
granted as a result of such a judgment would have a profoundly negative impact on OPECs
Member States. On behalf of Saudi Arabia, an OPEC Member State, the Ministry is wellpositioned to address the following relevant considerations.
First, under the law of Saudi Arabia, ownership of all natural resources, including oil, is
vested in the State. The State makes all decisions that relate to the level of production of crude
oil as part of its sovereign responsibilities, and those decisions are sovereign acts of State under
Saudi law, consistent with customary international law and U.S. law. Second, in making these
sovereign decisions, Saudi Arabia considers not only its own interests as an oil producing nation,
but also the needs and concerns of oil consuming nations, in pursuit of the mutually beneficial
goal of sustainable energy security. Saudi Arabias decisions as to sustainable energy security
have a significant impact on its domestic and foreign policies, just as the interrelated decisions of
the U.S. government as to sustainable energy security have a significant impact on U.S. domestic
and foreign policies.
decisions as to its own resources will affect Saudi Arabias domestic and foreign policies, with
serious implications for U.S. domestic and foreign policies.6
V.
BACKGROUND
A.
Saudi Arabia is the worlds largest producer and exporter of crude oil and owns and
controls the worlds largest reserves of crude oil.7 Crude oil is the Kingdoms most significant
natural resource and is subject to extensive State oversight and control as a matter of Saudi law.
6
Saudi Arabia is not named as a defendant and is not a party to this case. In filing this Memorandum as amicus
curiae, Saudi Arabia does not waive its sovereign immunity, and expressly reserves all defenses to personal and
subject matter jurisdiction in all matters before any United States Court.
See EIA Country Profile: Saudi Arabia, supra note 4, at 2 (Saudi Arabia holds approximately 20 percent of the
worlds proven oil reserves).
The Basic Law of Saudi Arabia, which enumerates the rights and obligations of the Saudi
Government and its citizens, mandates State ownership and protection of all natural resources in
Saudi Arabia. (Al-Fahad Op., Ex. B, 22.) Article 14 of the Basic Law affirms that all natural
resources within the Kingdoms territory are the property of the State, subject to State laws that
set forth the means for exploiting, protecting, and developing such resources for the benefit,
security, and economy of the State. Basic Law, art. 14 (Exhibit 2 to Al-Fahad Op., Ex. B.) As
provided in Article 15 of the Basic Law, only the State may grant concessions for the
exploitation of the Kingdoms natural resources. (Id., art. 15.) Therefore, all petroleum and
petroleum reserves are owned and protected by the Kingdom for the benefit of the State, and
their exploitation can be accomplished only through the authority of the State. (Al-Nafissah Op.,
Ex. A, 8; Al-Fahad Op., Ex. B, 23.) In this regard Saudi law is entirely consistent with the
well-established principle of customary international law that States have full sovereignty and
control over their natural resources. (Al-Fahad Op., Ex. B, 24.)
Saudi law charges the Ministry with responsibility for coordinating all aspects of
petroleum policy in Saudi Arabia, under the guidance of the Supreme Council for Petroleum and
Mineral Affairs (the Supreme Petroleum Council). (Al-Nafissah Op., Ex. A, 3, 8.) The
Supreme Petroleum Councils policy responsibilities, which were established by Royal Order,
include plans for crude oil production, exploration for and development of new hydrocarbon
reserves, and future capital investments. (Id. 5, 7.) The Supreme Petroleum Council is
chaired by H.M. King Abdullah bin Abdul Aziz Al Saud and has ultimate authority over the
Kingdoms petroleum policies. Its other members are senior members of the Saudi Government,
including Crown Prince (and Deputy Prime Minister) Prince Sultan bin Abdul Aziz Al Saud, and
others. (Id. 6.)
The Ministry, and the Minister of Petroleum and Mineral Resources as head of the
Ministry, is the final authority for implementing the oil production policies approved by the
Supreme Petroleum Council. (Al-Fahad Op., Ex. B, 18, 25-28.) The Minister of Petroleum
and Mineral Resources also serves as the Chairman of the Board of Directors of the Saudi
Arabian Oil Company (Saudi Aramco) (Saudi Aramco), and ensures that Saudi Aramco fulfills
the Governments oil policies. (Id. 18, 32.) As a matter of Saudi law, the Ministry, and not
Saudi Aramco, sets oil production levels. (Al-Nafissah Op., Ex. A, 8; Al-Fahad Op., Ex. B,
32, 35.)
Saudi Arabia is a founding member of OPEC. The Ministry coordinates Saudi Arabias
representation at OPEC. (Al-Fahad Op., Ex. B, 33-34.) The Minister of Petroleum and
Mineral Resources is the Kingdoms representative and Head of Delegation to OPEC. (Id. 34.)
OPEC is an administrative, voluntary intergovernmental organization of sovereign member
countries that functions as an administered forum for the discussion of crude oil production. (Id.
33.) OPEC does not own or control any petroleum resources and has no authority over oil
production or export levels of any of its member countries. (Id.) As a member of OPEC, Saudi
Arabia at all times retains its sovereign control over its own oil resources, including the exclusive
authority to make determinations as to Saudi Arabias levels of oil production and export, which
it makes in its own sovereign territory. (Id. 34.)
Thus Saudi Arabian law, consistent with established principles of international law, vests
in the Government exclusive control over and regulation of petroleum, the Kingdoms principal
natural resource. (Id. 24, 35-36.) All extraction and production levels are determined and set
by the Ministry. (Id. 35.) The Ministry at all times exercises the Governments authority to
establish production levels pursuant to established policies under the general policy guidance of
the Supreme Petroleum Council. (Id.) The Ministrys decisions as to those levels, and the
implementation of those decisions through Saudi Aramco, are sovereign acts taken at the highest
levels of the Saudi Government within the territory of Saudi Arabia. (Id.)
B.
Oil revenues are of central importance to the continuing economic development of Saudi
Arabia and its people. Consistent with its sovereign responsibilities, Saudi Arabias decisions as
to oil production necessarily take into consideration conservation of the Kingdoms nonrenewable natural resources. As His Excellency Minister Ali Al-Naimi, Minister of Petroleum
and Mineral Resources, has noted: We must produce and consume energy in the most efficient
manner possible so as not to waste valuable natural resourcesoil included.8
Saudi Arabias stewardship of the petroleum resources in its own territory extends as well
to its role as a major supplier of crude oil to the international market, including the United States.
Saudi Arabia long has served in the critical role of swing producer, meaning that it has chosen
to maintain, at great expense, spare crude oil production capacity for use in coping with
disruptions in global crude oil supplies.9
policy of promoting stability in the international oil market for the mutual benefit of oil
consumers and oil producers. The United States has benefited from Saudi Arabias ability to use
its spare capacity to address supply disruptions, such as in 2003, at the beginning of the military
Chronology of the International Oil Policy of the United States of America, 1950-2008 (Chronology) Pt. IV at 8
(Mot. to Dismiss Ex. 13). [The Chronology comprises four parts (Parts I-IV); references to the Chronology are to
Chronology Pt. __ at __.]
9
Saudi Arabia maintains spare production capacity of more than two million barrels per day, which has cost billions
of dollars, and is spending more than $90 billion in the next five years to increase its production capacity. H.E.
Minister Ali Al-Naimi, Address to the International Oil Summit, at 7 (Apr. 10, 2008) (Ex. C).
intervention in Iraq,10 the supply disruptions caused by Hurricanes Katrina and Rita in 2005, and
the Trans-Alaskan Pipeline break.11 The Chronology details many instances in which the United
States has acknowledged the importance of Saudi Arabias willingness to play this stabilizing
role over the course of its long bilateral relationship with the United States.12
As it has done for many years, Saudi Arabia exercises its sovereign control over its
principal natural resource with an awareness of the global need for energy security and the
understanding that achieving such security, given the complex forces at work in international oil
markets, requires cooperation between producing and consuming nations. As His Excellency
Minister Al-Naimi stated in a 2006 speech before the Center for Strategic and International
Studies:
Energy security cannot be maintained when prices are at extremestoo low or
too high. Truly sustainable energy security for consumers and producers requires
three conditionsprice stability, supply and demand reliability, and affordability.
These are the three pillars of sustainable energy security.
*
10
11
See, e.g., Declaration of J. Bennett Johnston, Jr. (Johnston Decl.) 15 (Since 1973, Saudi Arabia has been a
key ally of the United States in attempting to stabilize world crude prices, and repeatedly has stepped in to replace
production capacity after such events as Hurricane Katrina and the recent Trans-Alaska pipeline break) (Mot. to
Dismiss Ex. 7); Declaration of Robert W. Jordan (Jordan Decl.) 6 (Saudi Arabias willingness to maintain swing
capacity is largely to the benefit of the United States and costs Saudi Arabia millions of dollars) (Mot. to Dismiss
Ex. 10).
12
13
particularly in respect of Saudi Arabias commitment to increase its oil production and invest in
expanding U.S. oil refining capability:
[W]hat we did was review a commitment they made to us in 2005, as I recall.
They came to the States. We had a session. We then encouraged them to increase
their productive capacity. They agreed to do that, and they agreed to add a
million barrels a day to their production. They started it at 10.5 million barrels a
day. Theyre up now to 11.8 million. Theyll get to 12.5 million, which was their
objective, by the end of next year. Theyve spent about $90 billion to increase
their capacity, so they could produce more crude oil, obviously. And they also
are investing in refineries in the United States, one down at Port Arthur. So
theyve done a lot.14
Such collaborative efforts have been a centerpiece of the bilateral relationship between Saudi
Arabia and the United States for many years.
C.
For Decades U.S. Foreign Policy Has Centered On Assuring Stable And
Reliable Energy Supplies Through Diplomatic Relations With Oil Producing
Nations
The Served Defendants Motion to Dismiss and its attached Chronology present
extensive historical evidence that the United States (1) long has recognized the importance of
maintaining reliable supplies of crude oil as a significant component of U.S. foreign policy and
national security, and (2) repeatedly has chosen to pursue that goal through diplomacy rather
than confrontation.
14
15
See, e.g., Chronology Pt. I at 5 (article by former Assistant for National Security Affairs to President Johnson,
Walter R. Rostow, states that a hostile stance to OPEC would foreclose the potential for partnership) (Mot. to
Dismiss Ex. 13); Chronology Pt. II at 3-4 (President Carters Assistant Secretary of State Julius Katz in statement to
the U.S. House Committee on Ways and Means states the intention to make the strongest possible effort in bilateral
and multilateral dealings with oil producing nations to enlist their cooperation in the global energy challenge) (Mot.
to Dismiss Ex. 13); Chronology Pt. II at 9 (statement of press secretary to President George W. Bush that dealings
with OPEC would feature long term diplomacy) (Mot. to Dismiss Ex. 13).
10
that a third pillar of U.S. national energy policy is to maintain a dialogue with major oil
producing countries.16 Similarly, in 2006, Deputy Commerce Secretary David Sampson stated
in remarks at the International Conference on Energy and Security that the critical challenge of
securing energy supplies for our citizens . . . is truly a global problem and requires cooperation
among all nations, especially among major producers and consumers, as we are seeing today.17
This cooperative approach long has characterized the relations between the United States and the
Kingdom, as Secretary of State Condoleezza Rice emphasized in 2007:
We are good friends. We are allies. We have been so for decades. It doesnt
mean that there wont be disagreements about policy, tactics from time to time.
But the fact is that this is a relationship that allows us to discuss the most difficult
and sensitive issues in a way that is respectful and friendly. If there are problems
that the United States has with Saudi policy, we talk about it. If there are
problems that Saudi Arabia has with American policy, we talk about it. And that
is what is befitting a relationship of our breadth and depth.18
The declarations submitted with the Served Defendants Motion to Dismiss underscore
the consistent resort to diplomacy that is reflected in the Chronology.19 They affirm that U.S. oil
policy and U.S. relationships with foreign oil producers are complex, highly sensitive to
numerous influences and considerations, and therefore are properly the province of the elected
branches of the U.S. Government, consistent with the dictates of the U.S. Constitution.20 Retired
16
Chronology Pt. II at 11 (Mot. to Dismiss Ex. 13). Similarly, President Bush will meet with King Abdullah in
Saudi Arabia in May 2008 for policy discussions. See Bush to Discuss Oil Prices with Saudi King, N.Y. Times,
May 12, 2008 (Ex. D).
17
18
19
See Declaration of Brent Scowcroft (Scowcroft Decl.) (Mot. to Dismiss Ex. 5); Johnston Decl. (Mot. to Dismiss
Ex. 7); Jordan Decl. (Mot. to Dismiss Ex. 10); Declaration of John Robinson West (West Decl.) (Mot. to Dismiss
Ex. 12); Declaration of James Oberwetter (Oberwetter Decl.) (Mot. to Dismiss Ex. 11).
20
See, e.g., Declaration of William D. Rogers (Rogers Decl.) 7-13 (The elected branches of Government have
the apparatus necessary to gather the information and form policy judgments on a continuing institutionalized
basis and a variety of tools at hand to carry out their policy decisions in foreign relations.) (Mot. to Dismiss Ex.
8); Declaration of Richard V. Allen (Allen Decl.) 23-28 (Executive Branch has staff specialists and experts
dedicated to following the complex and changing factors involved; the Legislative Branch interacts with the
11
General Brent Scowcroft, a former National Security Advisor, notes that the formulation and
implementation of U.S. international energy policy requires careful balancing of many
competing diplomatic, economic, and security interests that are best handled through diplomacy
and negotiation by the Executive and Legislative Branches. (Scowcroft Decl. 10 (Mot. to
Dismiss Ex. 5)). Former Senator Johnston, a long-time member of the U.S. Senate, notes that the
Legislative and Executive Branches have inherent advantages in dealing with complex
international policy issues, given their access to specialized resources and the interrelationships
between the branches in the energy policy area. (Johnston Decl. 18-19 (Mot. to Dismiss
Ex. 7)). James Oberwetter, who served as U.S. Ambassador to Saudi Arabia from 2004-2007,
notes that during his recent service as Ambassador to the Kingdom he dealt frequently with oil
supply and energy security issues as a part of his diplomatic duties, including participation in
meetings between H.M. King Abdullah and President Bush. (Oberwetter Decl. 7, 10-12 (Mot.
to Dismiss Ex. 11)). Former Ambassador Robert Jordan, who also served as U.S. Ambassador to
Saudi Arabia, similarly details many instances in his experience in which U.S. foreign policy
interests were closely intertwined with oil production decisions, and therefore handled through
diplomatic interaction. (Jordan Decl. 5-8 (Mot. to Dismiss Ex. 10)).21
These declarations emphasize the serious negative consequences for longstanding U.S.
foreign policy that would result from a decision on the merits of these cases: highly insulting
and offensive even to our closest oil-producing allies, and would endanger partnerships that have
taken decades to nurture (Scowcroft Decl. 12 (Mot. to Dismiss Ex. 5)); catastrophic and
Executive Branch to arrive at sustainable policies to advance the nations strategic interests and to further the
nations interests over time) (Mot. to Dismiss Ex. 6).
21
Mr. John Robinson West, former Deputy Assistant Secretary of Defense for International Economic Affairs and
current Chairman of PFC Energy, observes that oil policy is developed through the complex synthesis of the
disparate short- and long-term needs of consumers and domestic producers, our allies and partners, and a host of
diplomatic priorities relating to individual countries. (West Decl. 5 (Mot. to Dismiss Ex. 12)).
12
unthinkable for U.S. energy policy (Johnston Decl. 11 (Mot. to Dismiss Ex. 7)); potentially
disastrous impact upon United States international energy and foreign policy (Jordan Decl. 10
(Mot. to Dismiss Ex. 10)); dramatically impair diplomatic relations between our two countries
at precisely the time when we need full cooperation for reasons of national security (Oberwetter
Decl. 9 (Mot. to Dismiss Ex. 11)); and serious adverse impacts on the energy stability of the
United States, its allies and partners, and . . . serious[] damage [to] relationships that have been
built and sustained by decades of careful foreign policy. (West Decl. 7 (Mot. to Dismiss
Ex. 12)).
VI.
ARGUMENT
A.
The Served Defendants Motion to Dismiss amply demonstrates that both complaints
challenge the same conduct, namely, the crude oil production decisions made by the sovereign
Member States of OPEC. Each complaint is based upon an alleged conspiracy to limit crude oil
production among the OPEC Member States and, in the case of the Consolidated Complaint, the
Russian Federation. (Mot. to Dismiss Section IV.) The crude oil-related conduct alleged in both
complaints is that of individual sovereign states. While the Consolidated Complaint attempts to
obfuscate this fact by purporting to attribute crude oil production decisions to the defendants, the
source material for the complaint demonstrates otherwise. (Id. at 8 n.6.) By thus focusing the
factual allegations of their complaints on the decisions of sovereign nations as to crude oil
production, the plaintiffs have placed those individual sovereign acts directly at issue in this case,
regardless of any disclaimers to the contrary. (See Consolidated Complaint 7, 67.)
13
There can be no doubt that the crude oil production level decisions that form the bases of
the complaints are sovereign acts of the relevant states taken within their territories. This is
demonstrably the case under Saudi law. As explained above, the Government of Saudi Arabia
makes crude oil production level decisions as an exercise of its sovereign authority over Saudi
Arabias principal natural resource. It is widely accepted, both in U.S. law and in international
law, that natural resource decisions, including crude oil exploitation decisions, are sovereign in
nature. Jones v. Petty Ray Geophysical Geosource, Inc., 722 F. Supp. 343, 346 (S.D. Tex. 1989)
(Lake, J.) (A sovereigns conduct with respect to its natural resources is presumptively a
governmental function.); see also, e.g., World Wide Minerals, Ltd. v. Rep. of Kazakhstan, 296
F. 3d 1154, 1165 (D.C. Cir. 2002) (applying the act of state doctrine in part because issuance of
a license permitting the removal of uranium from Kazakhstan is a sovereign act); Exxon Corp.
v. Commr, 66 T.C.M. (CCH) 1707, 1993 WL 534017, at *53 (U.S.T.C. Dec. 22, 1993), affd
Texaco, Inc. v. C.I.R., 98 F.3d 825 (5th Cir. 1996) (concluding that Saudi power over the
pricing of its crude was sovereign in nature) (Mot. to Dismiss Attach. 9).
Customary international law similarly recognizes that control over natural resources is a
sovereign function.
Resources, G.A. Res. 1803, preamble, 17 U.N. GAOR, 2d Comm. 327, U.N. Doc. A/5217
(1962) (recognizing the inalienable right of all States freely to dispose of their natural wealth
and resources in accordance with their national interests) (Mot. to Dismiss Attach. 10).22 The
United States fully supports this principle. See Statement of the U.S. Representative to the
22
Recent international treaties and agreements demonstrate the established nature of this principle. See, e.g., United
Nations Framework Convention on Climate Change (New York, May 9, 1992), 1771 U.N.T.S. 107, 31 I.L.M. 849,
851 (1992), entered into force Mar. 21, 1994 (Mot. to Dismiss Attach. 11) (States have, in accordance with the
Charter of the United Nations and the principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental and developmental policies . . . .). The United States is a party to
this treaty. U.S. Dept of State, Multilateral Treaties in Force for the United States as of January 1, 2007, at 63-64.
14
United Nations, U.N. GAOR, 28th Sess., 2203rd Plen. Mtg. at 10, U.N. Doc. A/PV.2203, (1973)
(The United States sincerely and strongly supports the right of each State to exercise permanent
sovereignty over its natural resources. This is almost a sacred right.) (Ex. E).
Consistent with these principles, and as reflected in Saudi law, Saudi Arabias crude oil
production decisions are sovereign acts of state, and therefore also are public acts of state within
the meaning of the act of state doctrine. See Intl Assn of Machinists & Aerospace Workers v.
OPEC, 649 F.2d 1354, 1360-62 (9th Cir. 1981) (hereinafter IAM II) (crude oil production
decisions of OPEC Member States held to be sovereign acts protected by the act of state
doctrine); Bulk Oil (Zug) A.G. v. Sun Co., 583 F. Supp. 1134, 1138 (S.D.N.Y. 1983) (applying
the act of state doctrine to official United Kingdom regulatory restrictions on sales of North Sea
crude oil). Further, as noted below, the validity of these public acts of the Kingdom, and of other
sovereign nations, is directly at issue in this case.
2.
The Act Of State Doctrine Requires U.S. Courts To Respect And Give
Effect To The Official Acts Of Other Sovereigns
The Supreme Court set forth the classic formulation of the act of state doctrine in
Underhill v. Hernandez, 168 U.S. 250, 252, 18 S. Ct. 83, 84 (1897): Every sovereign state is
bound to respect the independence of every other sovereign state, and the courts of one country
will not sit in judgment on the acts of the government of another, done within its own territory.
Thus the act of state doctrine serves to bar claims that would require a U.S. court to inquire into
the validity of the public acts of another sovereign nation. As the Supreme Court explained more
recently, the act of state doctrine applies in any case in which a court must decidethat is,
when the outcome of the case turns uponthe effect of official action by a foreign sovereign.
W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 406, 110 S. Ct. 701, 705 (1990).
15
24
Even if plaintiffs claims were not barred by the act of state doctrine, it is doubtful that plaintiffs could succeed in
their claims as to a conspiracy among the OPEC Member States in violation of the Sherman Act, because sovereign
states are not persons within the meaning of the Sherman Act. See, e.g., IAM v. OPEC, 477 F. Supp. 553, 572
(C.D. Cal. 1979) (hereinafter IAM I) ([A] foreign nation may sue, but may not be sued, under the United States
antitrust laws. . . .); Interam. Ref. Corp. v. Texaco Maracaibo, Inc., 307 F. Supp. 1291, 1298 n.18 (D. Del. 1970)
(The Sherman Act refers only to persons, not to states or nations, and both the Act and the Constitution would be
badly misinterpreted to permit liability for acts of a sovereign.); Hunt v. Mobil Oil Corp., 550 F.2d 68, 78 n.14 (2d
Cir. 1977) (We agree that Libya cannot be guilty of a Sherman Act violation. This is certainly so here since it is not
a party and, in any event, it could not be because it is not a person or corporation within the terms of the Act but a
sovereign state.). Additionally, the acts of the defendants that plaintiffs apparently claim to be participation or
facilitation of a conspiracy, e.g., providing unspecified information about U.S. oil markets, also fail to support a
claim of conspiracy. See Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, 203 F.3d 1028, 1033 (8th Cir.
2000) (sharing of price information is insufficient to support an inference of conspiracy).
16
those acts. The act of state doctrine does not permit either; therefore plaintiffs claims must be
dismissed. See Callejo v. Bancomer, S.A. 764 F. 2d 1101, 1116 (5th Cir. 1985) (dismissing
breach of contract claim because it would necessarily call into question Mexican foreign
exchange regulations, and the court could grant plaintiffs relief only by disregarding the
regulations); see also Compania de Gas de Nuevo Laredo, S.A. v. Entex, Inc., 686 F.2d 322,
325-26 (5th Cir. 1982) (dismissing claim that defendant conspired with Mexican government on
the basis of act of state because the claim would have required inquiry into the legality of the
Mexican governments actions); Hargrove v. Underwriters at Lloyds, London, 937 F. Supp.
595, 604 (S.D. Tex. 1996) (Because the Defendants actions were directed and approved by the
Colombian government, the condemnation of the Defendants actions that is necessary for the
Plaintiffs to prevail is necessarily a condemnation of the actions and recommendations of the
Colombian government.); O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830
F.2d 449, 453 (2d Cir. 1987) (stating that where the defendants conduct has been compelled by
the foreign government . . . the act of state doctrine is applicable).
Dismissal of plaintiffs claims, moreover, is entirely consistent with the policies
underlying the act of state doctrine. As the Fifth Circuit has noted, the act of state doctrine has
roots in the notion that our foreign policy interests are best served when courts exercise caution
in extending their adjudicatory powers to foreign governments. Walter Fuller Aircraft Sales,
Inc. v. Philippines, 965 F.2d 1375, 1390 (5th Cir. 1992). It serves to enhance the ability of the
Executive Branch to engage in the conduct of foreign relations by preventing courts from
judging foreign public acts. Id. at 1387 (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398, 423, 84 S. Ct. 923, 938 (1964)); see also Kirkpatrick, 493 U.S. at 404, 110 S. Ct. at 704
(noting that the Supreme Courts decision in Sabbatino reflected the strong sense of the Judicial
17
Branch that its engagement in the task of passing on the validity of foreign acts of state may
hinder the conduct of foreign affairs) (internal citation omitted); Callejo, 764 F.2d at 1120
(noting that the focus of the act of state doctrine is to prevent the courts from becoming
embroiled in sensitive international disputes).
As noted elsewhere in this brief, the potential negative impact that plaintiffs claims and
relief requested would have on longstanding bilateral relations between the United States and
major oil producing nations, including Saudi Arabia, cannot be overstated. The amicus filings in
this case provide strong testimony as to the far-reaching foreign policy consequences that would
result from adjudication of the public acts of state in this case. Such adjudication would touch .
. . more sharply on national nerves because of its implications for foreign policy. Sabbatino,
376 U.S. at 428, 84 S. Ct. at 940; see also IAM II, 649 F.2d at 1361 (The possibility of insult to
the OPEC states and of interference with the efforts of the political branches to seek favorable
relations with them is apparent from the very nature of this action . . . .). Therefore this Court
should dismiss both complaints on the basis of the act of state doctrine.25
B.
Plaintiffs claims are also barred because they present a non-justiciable political question
best resolved by the political branches of government.
principles and the case or controversy requirement of Article III of the U.S. Constitution, the
political question doctrine excludes from judicial review those controversies which revolve
around policy choices and value determinations constitutionally committed for resolution to the
halls of Congress or the confines of the Executive Branch. Japan Whaling Assn v. Am.
Cetacean Socy, 478 U.S. 221, 230, 106 S. Ct. 2860, 2866 (1986); accord Occidental of Umm al
25
Considerations of international comity also support dismissal. See Sequihua v. Texaco, Inc., 847 F. Supp. 61, 63
(S.D. Tex. 1994) (U.S. courts should decline to exercise jurisdiction under certain circumstances in deference to the
laws and interests of another foreign country).
18
Qaywayn, Inc. v. A Certain Cargo of Petroleum, 577 F.2d 1196, 1203-04 (5th Cir. 1978). Courts
traditionally have found such a lack of constitutional jurisdiction or competence where, as here, a
plaintiffs claims implicate foreign policy concerns. Occidental of Umm, 577 F.2d at 1203 ([I]n
the realm of foreign relations policy considerations render issues incompetent for a decision by
the court.); Dickson v. Ford, 521 F.2d 234, 236 (5th Cir. 1975); see also Haig v. Agee, 453 U.S.
280, 292, 101 S. Ct. 2766, 2774 (1981) (Matters intimately related to foreign policy and
national security are rarely proper subjects for judicial intervention.).
In Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710 (1962), the Supreme Court
formulated six factors which indicate the presence of a non-justiciable political question:
[1] [A] textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion; or [4]
the impossibility of a courts undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or [5] an
unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
These six indicators are probably listed in descending order of both importance and
certainty.
Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S. Ct. 1769, 1776 (2004).
The
inextricable presence of any one of them renders a case non-justiciable. Baker, 369 U.S. at
217, 82 S. Ct. at 710; Occidental of Umm, 577 F.2d at 1203 (citing Baker). In this case, all six of
the Baker factors are present.
1.
19
the U.S. Constitution, matters of foreign affairs are expressly delegated to the Executive and
Legislative Branches.26 U.S. Const. art. I, 8, cl. 3; art. II, 2, cl. 2; art. II, 3. Pursuant to this
constitutional authority (and longstanding practice), U.S. foreign and energy policy vis--vis oil
producing nations has long been the sole responsibility of the political branches. (Scowcroft
Decl. 10-11 (Mot. to Dismiss Ex. 5); Johnston Decl. 18-19 (Mot. to Dismiss Ex. 7); Jordan
Decl. 7-9 (Mot. to Dismiss Ex. 10); West Decl. 5-6 (Mot. to Dismiss Ex. 12); Chronology
Pts. I-II (Mot. to Dismiss Ex. 13)); see also IAM II, 649 F.2d at 1361 ([T]he foreign policy arms
of the executive and legislative branches are intimately involved in this sensitive area. It is clear
that OPEC and its activities are carefully considered in the formulation of American foreign
policy.).
As contemplated by the U.S. Constitution, the Executive and Congress are uniquely
suited to pursue the vital diplomatic relations between the United States and oil producing
nations. (Scowcroft Decl. 10-11 (Mot. to Dismiss Ex. 5); Johnston Decl. 18-19 (Mot. to
Dismiss Ex. 7); Jordan Decl. 8-9 (Mot. to Dismiss Ex. 10); West Decl. 5-6 (Mot. to
Dismiss Ex. 12)). Both governmental branches are equipped with, inter alia, career specialists
and experts in the field, extensive networks for intelligence gathering, and multiple and flexible
instruments with which to protect and advance U.S. interests. (Scowcroft Decl. 10-11 (Mot.
to Dismiss Ex. 5); Johnston Decl. 18-19 (Mot. to Dismiss Ex. 7); West Decl. 6 (Mot. to
26
The U.S. Constitution vests the power to conduct foreign affairs in the Executive and Legislative Branches of the
United States Government:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties . . . ; and he
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public
ministers and Consuls . . . . [H]e shall receive Ambassadors and other public Ministers.
U.S. Const. art. II, 2, cl. 2.; art. II, 3.
The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and
with the Indian Tribes . . . .
U.S. Const. art. I, 8, cl. 3.
20
Dismiss Ex. 12)); see also IAM II, 649 F.2d at 1358 (The political branches of our government
are able to consider the competing economic and political considerations and respond to the
public will in order to carry on foreign relations in accordance with the best interests of the
country as a whole.).
institutionalized issue. (Rogers Decl. 8 (Mot. to Dismiss Ex. 8); see also Scowcroft Decl.
10-11 (Mot. to Dismiss Ex. 5); Jordan Decl. 7-8 (Mot. to Dismiss Ex. 10)); see also Spacil
v. Crowe, 489 F.2d 614, 619 (5th Cir. 1974) (The executives institutional resources and
expertise in foreign affairs far outstrip those of the judiciary.).
Recent actions of the Bush Administration regarding the No Oil Producing and Exporting
Cartels Act of 2007 (NOPEC) demonstrate the Executive Branchs rejection of the use of
judicial intervention in respect of oil policy. NOPEC would subject oil producing nations to
suits by the U.S. Attorney General under U.S. antitrust laws in part by eliminating foreign
sovereign immunity and act of state defenses.
NOPEC, and in one of two Statements of Administration Policy declared that the appropriate
means for achieving [U.S. policy objectives in the international energy trade] lies in diplomatic
efforts by the United States with the countries involved in that trade, rather than lawsuits against
those countries in U.S. courts; it warned that adjudication of foreign sovereign oil policies
would substantially harm other U.S. interests.27 More recently, senior Cabinet officials in
letters to key members of Congress have described the potential negative consequences of
NOPEC and reiterated the Administrations strong opposition to the proposed legislation.28
27
28
Letter from Secretary of the Interior Dirk Kempthorne and Secretary of Energy Samuel Bodman to Speaker
Nancy Pelosi (May 5, 2008) (Ex. F); Letters from Secretary of the Treasury Henry M. Paulson, Jr. to Representative
John D. Dingell, Representative Joe Barton, Senator Jeff Bingaman, and Senator Pete Domenici
(Oct. 16, 2007) (Ex. G); see also Letter from Allan Hubbard, Assistant to the President for Economic Policy and
Director of the National Economic Council, to Senate Minority Leader Mitch McConnell (Oct. 15, 2007) (Ex. H).
21
Adjudication of plaintiffs claims similarly would usurp the Executive and Legislative Branches
constitutional authority to conduct foreign affairs and disrupt the proper operation of their welldeveloped diplomatic resources. For this reason alone, plaintiffs claims must be dismissed. See
Baker, 369 U.S. at 217, 82 S. Ct. at 710; Occidental of Umm, 577 F.2d at 1203-04.
2.
This case also presents a non-justiciable political question because there are no
judicially discoverable and manageable standards for resolving it. Baker, 369 U.S. at 217, 82
S. Ct. at 710; see also Occidental of Umm, 577 F.2d at 1203 ([T]he political question doctrine
partakes not only of the existence of separation of powers, but also of the limitation of the
judiciary as a decisional body.). Cases implicating foreign policy considerations often raise
issues beyond the realm of judicial expertise. See, e.g., Baker, 369 U.S. at 211, 82 S. Ct. at 707
([R]esolution of [foreign policy] issues frequently turn[s] on standards that defy judicial
application . . . .); Trujillo-Hernandez v. Farrell, 503 F.2d 954, 955 (5th Cir. 1974) (It has
never been supposed that there are any judicially manageable standards for reviewing the
conduct of our nations foreign relations by the other two branches of the federal government.).
Here, adjudication of plaintiffs claims would require the Court to make a legal determination on
the production policies of sovereign oil producing nationspolicies inextricably intertwined,
through diplomatic and economic relations, with U.S. foreign policy. This the Court is illequipped to do.
Unlike the Executive and Legislative Branches, the Judicial Branch has no bureaucracy
with expertise in international relations, no capacity to gather information or intelligence abroad,
and no opportunity to address foreign policy questions on a continuing basis. (Scowcroft Decl.
11 (Mot. to Dismiss Ex. 5)); see also Dickson, 521 F.2d at 236 (dismissing case presenting
22
foreign policy question of a kind for which the Judiciary has neither aptitude, facilities nor
responsibility) (internal quotation marks omitted). Thus, the Court is unable to take into
consideration all of the competing interests implicated by plaintiffs claims and is largely
unprepared to predict or to redress the harmful ramifications of any judicial decision. (See
Scowcroft Decl. 11 (Mot. to Dismiss Ex. 5); Johnston Decl. 18 (Mot. to Dismiss Ex. 7);
Jordan Decl. 8-9 (Mot. to Dismiss Ex. 10); West Decl. 6 (Mot. to Dismiss Ex. 12)); see also
Spacil, 489 F.2d at 619 ([I]n the chess game that is diplomacy only the executive has a view of
the entire board and an understanding of the relationship between isolated moves.). Here, a
finding for plaintiffs would produce an inevitable backlash against the United States which
could greatly undermine its positionand that of moderate oil producing nationsin diplomatic
relations and oil negotiations. (Scowcroft Decl. 12 (Mot. to Dismiss Ex. 5); Johnston Decl.
20-21 (Mot. to Dismiss Ex. 7); Jordan Decl. 8, 10 (Mot. to Dismiss Ex. 10); West Decl.
7-8 (Mot. to Dismiss Ex. 12)).
The absence of judicially manageable standards by which to resolve the myriad, complex
foreign policy considerations at issue in this case further warrants its dismissal. See Baker, 369
U.S. at 217, 82 S. Ct. at 710; Occidental of Umm, 577 F.2d at 1203. Such questions are not legal
matters that can be resolved by U.S. courts. (Scowcroft Decl. 11 (Mot. to Dismiss Ex. 5);
Jordan Decl. 9 (Mot. to Dismiss Ex. 10); West Decl. 6 (Mot. to Dismiss Ex. 12)); see also
Japan Whaling, 478 U.S. at 230, 106 S. Ct. at 2866 ([C]ourts are fundamentally underequipped
to formulate national policies or develop standards for matters not legal in nature.) (quotation
omitted). The international politics of oil are beyond the realm of judicial expertise.
23
3.
The remaining Baker factors are also inextricably present in this case. A ruling by the
Court would be tantamount to an initial policy determination of a kind clearly for nonjudicial
discretion. Baker, 369 U.S. at 217, 82 S. Ct. at 710. Plaintiffs effectively ask this Court to
ignore the longstanding history of U.S. diplomacy in the area of international oil policy and to
permit a policy of confrontation with oil producing nations. Adjudication of plaintiffs claims
could not adequately address the competing political and economic demands of the global oil
market. The judicial branch is not intended to be an instrument of U.S. foreign policy and is
poorly equipped to carry out this role. (West Decl. 6 (Mot. to Dismiss Ex. 12); see also
Rogers Decl. 9 (Making national policy on crude oil pricing in international markets by ad
hoc judicial determination is a blunt instrument haphazardly aimed and uncertain in result.)
(Mot. to Dismiss Ex. 8)).
Likewise, any decision by the Court would undermine the sensitive diplomatic dealings
between the political branches of the U.S. Government and oil producing nationsa foreign
policy prerogative vested in the Executive and Legislature by the U.S. Constitution. See Baker,
369 U.S. at 217, 82 S. Ct. at 710. This would reflect a lack of respect for the political
branches. Occidental of Umm, 577 F.2d at 1204. Further, an [i]ll-timed judicial decision[]
challenging the acts of foreign states could nullify [the political branches diplomatic] tools and
embarrass the United States in the eyes of the world. IAM II, 649 F.2d at 1358. Where, as here,
there is a strong need to continue the policies of successive Administrations in dealing with
OPEC and its Member States through diplomacy and negotiation, the Court lacks constitutional
jurisdiction to decide the case. Baker, 369 U.S. at 217, 82 S. Ct. at 710; Occidental of Umm, 577
F.2d at 1203-04.
24
To participate adeptly in the global community, the United States must speak with one
voice and pursue a careful and deliberate foreign policy. IAM II, 649 F.2d at 1358. The
presence of any one Baker factor warrants dismissal of a case under the political question
doctrine. Baker, 369 U.S. at 217, 82 S. Ct. at 710; Occidental of Umm, 577 F.2d at 1203. Here,
all six are present, and demand dismissal of plaintiffs claims.
CONCLUSION
Plaintiffs complaints are a transparent attempt to achieve indirectly a result
adjudication of sovereign political conductthat plaintiffs cannot achieve directly. For all the
foregoing reasons, this Court should dismiss the complaints in their entirety with prejudice.
Respectfully submitted,
Bracewell & Giuliani LLP
/ s / Carolyn B. Lamm
Carolyn B. Lamm
Attorney-in-Charge
Anne D. Smith
Hansel T. Pham
Jonathan C. Ulrich
701 Thirteenth Street, N.W.
Washington, D.C. 20005
Telephone: (202) 626-3600
Facsimile: (202) 639-9355
/ s / Carrin F. Patman
Carrin F. Patman
State Bar No. 15572500
S.D. Tex. No. 477
711 Louisiana Street, Suite 2300
Houston, TX 77002-2770
Telephone: (713) 223-2300
Facsimile: (713) 437-5365
Robert A. Milne
Thomas J. OSullivan
Raj Gandesha
White & Case LLP
1155 Avenue of the Americas
New York, NY 10036
Telephone: (212) 819-8200
Facsimile: (212) 354-8113
25
CERTIFICATE OF SERVICE
I hereby certify that the foregoing was served on May 16, 2008, pursuant to Fed. R. Civ.
P. 5(b), either by electronic notice through the United States District Court for the Southern
District of Texas or first class mail on the following counsel of record:
Charles J. Cooper
ccooper@cooperkirk.com
David Henry Thompson
dthompson@cooperkirk.com
Stuart M. Paynter
Cooper & Kirk, PLLC
1523 New Hampshire Ave., NW
Washington, DC 20036
David S. Stellings
dstellings@lchb.com
Jennifer Gross
jgross@lchb.com
David P. Gold
dgold@lchb.com
Lieff Cabraser Heimann & Bernstein, LLP
780 Third Ave., 48th Floor
New York, NY 10017
Geoffrey L. Harrison
gharrison@susmangodfrey.com
Lexie G. White
lwhite@susmangodfrey.com
Susman Godfrey LLP
Suite 5100
1000 Louisiana St.
Houston, TX 77002
Joseph R. Saveri
jsaveri@lchb.com
Lieff Cabraser Heimann & Bernstein, LLP
275 Battery Street, Suite 3000
San Francisco, CA 94111
James B. Sloan
jsloan@pedersenhoupt.com
Kimberly S. Cornell
kcornell@pedersenhoupt.com
Pedersen & Houpt
161 North Clark St., Suite 3100
Chicago, IL 60601
William T. Gotfryd
wgotfryd@shhllp.com
Arthur T. Susman
asusman@shhllp.com
Susman Heffner & Hurst, LLP
20 South Clark St.
Chicago, IL 60603
William A. Isaacson
wisaacson@bsfllp.com
Hamish P.M. Hume
hhume@bsfllp.com
Tanya S. Chutkan
tchutkan@bsfllp.com
Boies, Schiller & Flexner LLP
5301 Wisconsin Ave., NW
Suite 800
Washington, DC 20015
John A. Cochrane
Cochrane & Bresnahan
3660 Haldeman Creek Drive
Naples, FL 34112
Robert J. Dwyer
rdwyer@bsfllp.com
Boies, Schiller & Flexner LLP
575 Lexington Ave.
7th Floor
New York, NY 10022
Theodore T. Poulos
tpoulos@cotsiriloslaw.com
Terence H. Campbell
tcampbell@cotsiriloslaw.com
Cotsirilos, Tighe & Streicker, LLP
33 N. Dearborn St., Suite 600
Chicago, IL 60602
Walter W. Noss
wnoss@scott-scott.com
Scott & Scott, LLP
12434 Cedar Rd.
Suite 12
Cleveland Heights, OH 44106
Edmund W. Searby
esearby@mcdonaldhopkins.com
McDonald Hopkins, LLC
600 Superior Ave., East
Suite 2100
Cleveland, OH 44114
Gregory D. Seeley
gdseeley@sseg-law.com
Seeley, Savidge, Ebert & Gourash Co., LPA
26600 Detroit Rd.
Cleveland, OH 44145
J. William Stefan
William Stefan and Associates
201 Burr Ridge Club
Burr Ridge, IL 60527
Jonathan D. Baughman
jbaughman@mcginnislaw.com
McGinnis, Lochridge & Kilgore, LLP
3200 One Houston Center
1221 McKinney Street
Houston, TX 77010
John B. Beckworth
jbeckworth@wattbeckworth.com
Watt Beckworth Thompson & Henneman,
LLP
1800 Pennzoil Place, South Tower
711 Louisiana St.
Houston, TX 77002
Richard P. Keeton
rkeeton@nickenskeeton.com
Nickens Keeton Lawless Farrell & Flack,
LLP
600 Travis Street, Suite 7500
Houston, TX 77002
Thad T. Dameris
tdameris@hhlaw.com
Hogan & Hartson, LLP
Pennzoil Place
711 Louisiana St., Suite 2100
Houston, TX 77002
J. Timothy Eaton
teaton@shefskylaw.com
John F. Kennedy
jkennedy@shefskylaw.com
Shefsky Froelich, Ltd.
111 East Wacker Dr., Suite 2800
Chicago, IL 60601
Ray G. Rezner
ray.rezner@bfkn.com
Mark S. Bernstein
mark.bernstein@bfkn.com
Rachael M. Trummel
rachel.trummel@bfkn.com
Heather J. Macklin
heather.macklin@bfkn.com
Shermin Kruse
shermin.kruse@bfkn.com
Jessica M. Perez Simmons
jessica.simmons@bfkn.com
Barack Ferrazzano Kirschbaum & Nagelberg
LLP
200 West Madison St., Suite 3900
Chicago, IL 60606
Tracie J. Renfroe
trenfroe@kslaw.com
Alissa B. Rubin
arubin@kslaw.com
King & Spalding LLP
1100 Louisiana St., Suite 4000
Houston, TX 77002
Nathan P. Eimer
neimer@eimerstahl.com
Andrew G. Klevorn
aklevorn@eimerstahl.com
Chad J. Doellinger
cdoellinger@eimerstahl.com
Eimer Stahl Klevorn & Solberg LLP
224 South Michigan Ave., Suite 1100
Chicago, IL 60604
Gale T. Miller
gale.miller@dgslaw.com
Dale R. Harris
dale.harris@dgslaw.com
Tom McNamara
tom.mcnamara@dgslaw.com
Davis Graham & Stubbs LLP
1550 Seventeenth St., Suite 500
Denver, CO 80202
Richard N. Carrell
rcarrell@fulbright.com
Neva J. Burns Dowell
jdowell@fulbright.com
Fulbright & Jaworski LLP
Fulbright Tower
1301 McKinney St., Suite 5100
Houston, TX 77010
Leslie W. Jacobs
les.jacobs@thompsonhine.com
Thompson Hine LLP
3900 Key Center
127 Public Square
Cleveland, OH 44114
James P. Tuite
jtuite@akingump.com
C. Fairley Spillman
fspillman@akingump.com
Steven C. Wu
swu@akingump.com
Christopher M. Egleson
cegleson@akingump.com
Akin Gump Strauss Hauer & Feld LLP
Robert S. Strauss Building
1333 New Hampshire Ave., NW
Washington, DC 20036
Michael K. Swan
mswan@akingump.com
Akin Gump Strauss Hauer & Feld LLP
1111 Louisiana St., 44th Floor
Houston, TX 77002
David L. Doyle
ddoyle@vedderprice.com
Matthew F. Carmody
mcarmody@vedderprice.com
Vedder Price
222 North LaSalle St.
Chicago, IL 60601
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Exhibit 1 to the
Legal Opinion of Dr. Motleb A. Al-Nafissah
Exhibit 2 to the
Legal Opinion of Dr. Motleb A. Al-Nafissah
Exhibit 3 to the
Legal Opinion of Dr. Motleb A. Al-Nafissah
A
Case 4:07-cv-04415 Document 68-3 Filed in TXSD on 05/16/08 Page 1 of 71Exhibit B
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Exhibit
Exhibit 1 to the
Expert Opinion of Dr. Abdulaziz Hamad Al-Fahad
Exhibit 2 to the
Expert Opinion of Dr. Abdulaziz Hamad Al-Fahad
Part One
General Principles
Article 1:
The Kingdom of Saudi Arabia is a fully sovereign Arab Islamic State. Its
religion shall be Islam and its constitution shall be the Book of God and the
Sunnah (Traditions) of His Messenger, may Gods blessings and peace be
upon him (PBUH). Its language shall be Arabic and its capital shall be the city
of Riyadh.
Article 2:
The two holidays of the State shall be Id al-Fitr and Id al-Adha, and its
calendar shall be the Hijri Calendar.
Article 3:
The flag of the State shall be as follows:
(a) Its color shall be green.
(b) Its width shall be two-thirds its length.
(c) Centered therein shall be the expression There is no god but God
and Muhammad is the Messenger of God, with an unsheathed
sword under it. The flag may never be flown at half-mast.
The Law shall set forth the provisions appertaining thereto.
Article 4:
The emblem of the State shall be two crossed swords with a date palm
tree in the middle of the upper space between them. The law shall set forth
the anthem and medals of the State.
Part Two
System of Governance
Article 5:
(a) The system of governance in the Kingdom of Saudi Arabia shall
be monarchical.
(b) Governance shall be limited to the sons of the Founder King
Abd al-Aziz ibn Abd ar-Rahman al-Faysal Al Saud, and the
sons of his sons. Allegiance shall be pledged to the most
suitable amongst them to reign on the basis of the Book of God
Most High and the Sunnah of His Messenger (PBUH).
(c) The King shall select and relieve the Crown Prince, by Royal
Order.
(d) The Crown Prince shall devote himself exclusively to the office
of the Crown Prince and shall perform any other duties
assigned to him by the King.
(e) The Crown Prince shall assume the powers of the King upon his
death until the pledge of allegiance is given.
Article 6:
Citizens shall pledge allegiance to the King on the basis of the Book of
God and the Sunnah of his Messenger, and on the basis of submission and
obedience in times of hardship and ease, fortune and adversity.
Article 7:
Governance in the Kingdom of Saudi Arabia derives its authority from
the Book of God Most High and the Sunnah of his Messenger, both of which
govern this Law and all the laws of the State.
Article 8:
Governance in the Kingdom of Saudi Arabia shall be based on justice,
shura (consultation), and equality in accordance with the Islamic Shariah.
Part Three
Foundations of Saudi Society
Article 9:
The nucleus of Saudi society is the family and its members should be
brought up on the basis of the Islamic creed and its requirement of allegiance
and obedience to God, to His Messenger and to those in authority; respect for
and implementation of laws, and love of and pride in the homeland and its
glorious history.
Article 10:
The State shall endeavor to strengthen family bonds, maintain its Arab
and Islamic values, care for all its members, and provide conditions
conducive to the development of their talents and abilities.
Article 11:
Saudi society shall be based on its members holding fast to the bond of
God, cooperating unto righteousness and piety, and maintaining solidarity,
and avoiding dissention.
Article 12:
Promoting national unity is a duty, and the State shall prevent whatever
leads to disunity, sedition and division.
Article 13:
Education shall aim to instill the Islamic creed in the young, impart
knowledge and skills to them, and prepare them to be useful members in the
building of their society, loving their homeland, and taking pride in its
history.
Part Four
Economic Principles
Article 14:
All Gods bestowed wealth, be it underground, on the surface, or in
national territorial waters, on the land or maritime domains under the States
control, all such resources shall be the property of the State as defined by the
Law. The Law shall set forth the means for exploiting, protecting, and
developing such resources for the benefit, security, and economy of the State.
Article 15:
No concession is to be granted and no public resources of the country are
to be exploited except pursuant to a law.
Article 16:
Public property has sanctity. The State shall protect it, and citizens and
residents shall safeguard it.
Article 17:
Property, capital, and labor are basic constituents of the economic and
social structure of the Kingdom. They are private rights which fulfill a social
function in accordance with Islamic Shariah.
Article 18:
The State shall guarantee private property and its inviolability. No one
shall be deprived of his property except for the public interest, provided that
the owner be fairly compensated.
Article 19:
The public expropriation of property shall be prohibited, and the penalty
of private expropriation may be imposed only by a court order.
Article 20:
Taxes and fees may be imposed only if needed and on a just basis. They
may be imposed, revised, abolished, or exempted only in accordance with the
Law.
Article 21:
Zakah (alms) shall be collected and spent as prescribed by the Shariah.
Article 22:
Economic and social development shall be accomplished according to a
sound and just plan.
Part Five
Rights and Duties
Article 23
The State shall protect the Islamic creed, apply its Shariah, enjoin the
good and prohibit evil, and carry out the duty of calling to God.
Article 24
The State shall maintain and serve the Two Holy Mosques, and provide
security and care to those who travel to them as to enable them to perform Haj
(Major Pilgrimage), Umrah (Minor Pilgrimage), and Ziyarah (Visit of the
Prophets Mosque) in ease and tranquility.
Article 25
The State shall strive to realize the aspirations of the Arab and Muslim
nation for solidarity, unity, as well as to promote its relations with friendly
states.
Article 26
The State shall protect human rights in accordance with the Islamic
Shariah.
Article 27
The State shall guarantee the right of the citizen and his family in
emergencies, sickness, disability, and old age, and shall support the social
Article 29:
The State shall foster sciences, arts, and culture, and shall encourage
scientific research, protect Islamic and Arabic heritage, and contribute to
Arab, Islamic, and human civilization.
Article 30:
The State shall provide public education, and shall be committed to
combating illiteracy.
Article 31:
The State shall be responsible for the care of public health, and shall
provide health care to every citizen.
Article 32:
The State shall endeavor to preserve, protect, and improve the
environment and prevent its pollution.
Article 33:
The State shall create and equip armed forces for the defense of the creed,
the Two Holy Mosques, the society, and the homeland.
Article 34:
Defense of the Islamic creed, society, and homeland is the duty of every
citizen. The Law shall set forth provisions for military service.
Article 35:
The Law shall set forth provisions for Saudi Arabian citizenship.
Article 36:
The State shall provide security to all its citizens and residents. A
persons actions may not be restricted, nor may he be detained or imprisoned,
except under the provisions of the Law.
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Article 37:
Residences shall be inviolable, and they may not be entered or searched
without their owners permission except in cases set forth in the Law.
Article 38:
Punishment shall be carried out on a personal basis. There shall be no
crime or punishment except on the basis of a Shariah or a statutory provision,
and there shall be no punishment except for deeds subsequent to the
effectiveness of a statutory provision.
Article 39:
Mass and publishing media and all means of expression shall use decent
language and adhere to State laws. They shall contribute towards educating
the nation and supporting its unity. Whatever leads to sedition and division,
or undermines the security of the State or its public relations, or is injurious to
the honor and rights of man, shall be prohibited. Laws shall set forth
provisions to achieve this.
Article 40:
Correspondence by telegraph and mail, telephone conversations, and
other means of communication shall be protected. They may not be seized,
delayed, viewed, or listened to except in cases set forth in the Law.
Article 41:
Residents in the Kingdom of Saudi Arabia shall observe its laws. They
shall respect the values, traditions and sensibilities of Saudi society.
Article 42:
The State shall grant political asylum if public interest so dictates. Laws
and international agreements shall specify the rules and procedure for the
extradition of ordinary criminals.
Articles 43:
The court of the King and of the Crown Prince shall be accessible to every
citizen and to every one who has a complaint or a grievance. Every individual
shall have the right to address public authorities in matters of concern to him.
Part Six
Authorities of the State
Article 44:
Article 52:
Appointment and termination of judges shall be by Royal Order, at the
recommendation of the Supreme Judicial Council, as set forth by the Law.
Article 53:
The Law shall set forth the structure and jurisdiction of the Board of
Grievances.
Article 54:
The Law shall set forth the final authority, organization, and jurisdiction
of the Bureau of Investigation and Prosecution.
Article 55:
The King shall run the affairs of the nation in accordance with the
dictates of Islam. He shall supervise the implementation of Islamic Shariah
and the general policies of the State, and the protection and defense of the
country.
Article 56:
The King presides over the Council of Ministers. He shall be assisted in
the discharge of his functions by the members of the Council of Ministers in
accordance with the provisions of this and other laws. The Law of the Council
of Ministers shall set forth the power of the Council with respect to internal
and foreign affairs, and to the organization of the agencies of the Government
and coordination among them. It shall also set forth the requirements
ministers must meet, their powers, accountability, and all their affairs. The
Law of the Council of Ministers and the powers of the Council shall be
amended in accordance with this Law.
Article 57:
(a)
(b)
(c)
Article 58:
The King shall appoint those who hold the rank of minister and deputy
minister and those in Distinguished Grade, and shall relieve them of their
office by Royal Order in accordance with what is set forth in the Law.
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Article 67:
The regulatory authority shall have the jurisdiction of formulating laws
and rules conducive to the realization of the well-being or warding off harm
to State affairs in accordance with the principles of the Islamic Shariah. It shall
exercise its jurisdiction in accordance with this Law, and Laws of the Council
of Ministers and the Shura Council.
Article 68:
The Shura Council shall be established. Its Law shall set forth its
formation, the exercising of its powers and the selection of its members
The King may dissolve and reconstitute the Shura Council.
Article 69:
The King may summon the Shura Council and the Council of Ministers to
a joint session. He may invite whomever he chooses to attend said sessions in
order to discuss whatever matters the King chooses.
Article 70:
Laws, international treaties and agreements, and concessions shall be
issued and amended by Royal Decrees.
Article 71:
Laws shall be published in the Official Gazette, and shall be effective on
the date of publication unless another date is specified therein.
Part Seven
Financial Affairs
Article 72:
(a)
(b)
The Law shall set forth the provisions governing State revenues and
their delivery to the public treasury of the State.
Revenues shall be recorded and disbursed in accordance with the
rules prescribed by law.
Article 73:
No commitment may be made to pay funds out of the public treasury
except in accordance with the provisions of the budget. If budgetary
allocations do not cover such commitments, the commitment must be made
by a Royal Decree.
Article 74:
State property may not be sold, leased, or disposed off except in
accordance with the Law.
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Article 75:
The Law shall set forth provisions governing monetary and banking
matters, as well as weights, scales, and measures.
Article 76:
The Law shall specify the fiscal year of the State. The budget shall be
announced by a Royal Decree, and shall include estimates of revenue and
expenditures for the year, not less than one month before the fiscal year
begins. If compelling reasons prevent its announcement and the new fiscal
year begins, the budget of the previous year shall remain in force pending the
announcement of the new budget.
Article 77:
The agency concerned shall prepare the closing accounts of the State for
the fiscal year that ended and submit the same to the President of the Council
of Ministers.
Article 78:
Budgets of agencies having a public juristic personality and their closing
accounts shall be subject to the same provisions governing the budget and
closing accounts of the State.
Part Eight
Auditing Agencies
Article 79:
All State revenues and disbursements as well as all movable and
immovable property of the State shall be subject to subsequent audit. The
proper use of these properties and protection of the same shall be ascertained
and an annual report shall be submitted thereon to the President of the
Council of Ministers. The Law shall specify the audit agency having
jurisdiction in this matter as well as its chain of command and jurisdictions.
Article 80:
Government agencies shall be monitored, and their proper administrative
performance and enforcement of the laws shall be verified. Financial and
administrative violations shall be investigated and an annual report thereon
shall be submitted to the President of the Council of Ministers.
The Law shall specify the agency having jurisdiction in this matter and its
chain of command and jurisdictions.
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Part Nine
General Provisions
Article 81:
The enforcement of this Law shall not prejudice whatever treaties and
agreements with states and international organizations and agencies to which
the Kingdom of Saudi Arabia is committed.
Article 82:
Without prejudice to the provisions of Article 7 herein, no provision of
this Law may be suspended except on a temporary basis, in the manner set
forth under the Law, at the time of war or during a declared state of
emergency.
Article 83:
Amendment of this Law can only be made in the same manner of its
promulgation.
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Exhibit 3 to the
Expert Opinion of Dr. Abdulaziz Hamad Al-Fahad
Exhibit 4 to the
Expert Opinion of Dr. Abdulaziz Hamad Al-Fahad
Exhibit 5 to the
Expert Opinion of Dr. Abdulaziz Hamad Al-Fahad
News Summary
Reports
Press Releases
Recent News
Public Statements
Statements
Speeches
Transcripts
2008 Speech
04/10/2008
Oil Minister remarks at the International Oil Summit in
Paris
Minister of Petroleum and Mineral Affairs Ali Al-Naimi address titled
Energy and the Environment: Opportunities and Challenges at the
International Oil Summit in Paris, April 10, 2008
Prior Years
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http://208.246.28.155/2008News/Statements/SpeechDetail.asp?cIndex=716
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5/1/2008
In the interview, Bush also said that most oil imported into the United States ''comes from
Canada and Mexico,'' not from Saudi Arabia.
Bush also said that, while he was a ''big supporter'' of energy conservation, he would not issue a
specific appeal to the public to ease up on driving and not use as much fuel. ''I think they can
figure out how to do that,'' he told CBS. ''I mean, the market has a way of convincing people to
drive less, depending on their ability to afford.''
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