-i- TO THE SUBROGATE PRESIDENT OF THE ... - Chevron

also filed suit against Chevron for the same alleged indivisible harms to the
environment. 730 If the settlement agreements signed with the Government of Ecuador
and the local governments do not bar this litigation, then there is no principled reason
why a judgment in favor of the plaintiffs here would have the effect of res judicata with
respect to these other groups who say that they are not represented by the plaintiffs. In
the absence of res judicata, this type of litigation would continue indefinitely, and my
client would potentially be subject to numerous overlapping and potentially inconsistent
judgments without ever having the repose of finality of legitimate court orders and
settlements. This would be anathema to due process.
Because the Government of Ecuador and the local governments were acting on
behalf of the citizens in their respective jurisdictions, the only claims that survived the
settlements were those for personal injury and individual property damage. This is
reflected in the carve-out provision of the State’s settlement, which was understood to
preserve the rights of third parties to bring claims for alleged individual injuries. 731 But
the plaintiffs in this case did not allege any individual injuries. As Mr. Donziger admitted,
the plaintiffs “did not sue for” “personal damages.” 732 Their complaint demands the
removal of alleged contaminants that “threaten the environment and health of the
inhabitants,” 733 seeks money for the repair of alleged “environmental damages,” 734 and
thus seeks to redress the same alleged harm covered by the governmental settlements.
As we have seen, such claims have been vindicated and released by the Government
of Ecuador and the local governments acting on behalf of all Ecuadorian citizens, and
the plaintiffs, as Ecuadorian citizens, cannot bring them again.
This conclusion is only reinforced by the fact that the release granted in
September 1998 was also an official act of the State, which, under administrative law,
“acquires binding force” and is “effective erga omnes.” 735 The “immutability of . . . the
administrative action is just a part of the stability of legal rules in general (certainty—
finality, or order) as a means of achieving certainty and protection.” 736 The binding
730 The record includes a written declaration from leaders of the Huaorani and Kichwa indigenous
groups protesting their inclusion in this lawsuit and stating that neither the plaintiffs nor the Frente has
been authorized to represent them. Chevron’s Motion regarding Plaintiffs’ Representation of Kichwa and
Huaorani Communities, filed Jan. 17, 2007 at 3:00 p.m., Record at 125652-54, 125653.
731 See Memorandum of Understanding dated Dec. 14, 1994, filed May 24, 2004 at 2:18 p.m.,
Record at 7705-07v, 7706v.
732 Diary of Steven Donziger, entry dated Oct. 27, 2006, at 30, attached as Annex 1 to Chevron’s
Third Supplemental Motion for Terminating Sanctions, filed Dec. 20, 2010 at 4:30 p.m. (DONZ00027256).
733 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 79.
734 Plaintiffs’ Complaint, filed May 7, 2003 at 11:30 a.m., Record at 73-80v, 79v.
735 FRAGA, Gabino, Administrative Law, 38 th Edition, Porrúa, México, 1998, pp. 275, 279.
736 LINARES, Juan Francisco, Administrative Res Judicata, Ed. Kraft, 1945 ed., p. 91. See also
MERKL, Adolfo, General Theory of Administrative Law, Ed. Nacional, 1980 ed., p. 263 (“The certainty of
legal rulings makes the immutability of administrative actions imperative, even against the exigencies of
the public interest”).
CERT. INTERMARK VER: JD
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