Institute of Cetacean Research v. Sea Shepherd Conservation Society

FILED

FOR PUBLICATION FEB 25 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

INSTITUTE OF CETACEAN No. 12-35266

RESEARCH, a Japanese research

foundation; KYODO SENPAKU D.C. No. 2:11-cv-02043-RAJ

KAISHA, LTD., a Japanese

corporation; TOMOYUKI OGAWA, an

individual; TOSHIYUKI MIURA, an OPINION

individual,

Plaintiffs - Appellants,

v.

SEA SHEPHERD CONSERVATION

SOCIETY, an Oregon nonprofit

corporation; PAUL WATSON, an

individual,

Defendants - Appellees.

Appeal from the United States District Court

for the Western District of Washington

Richard A. Jones, District Judge, Presiding

Argued and Submitted October 9, 2012

Seattle, Washington

Before: KOZINSKI, Chief Judge, TASHIMA and M. SMITH, Circuit

Judges.

page 2

KOZINSKI, Chief Judge:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass

containers of acid; drag metal-reinforced ropes in the water to damage propellers

and rudders; launch smoke bombs and flares with hooks; and point high-powered

lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded

you believe your purpose to be.

Plaintiffs-Appellants (collectively, “Cetacean”) are Japanese researchers

who hunt whales in the Southern Ocean. The United States, Japan and many other

nations are signatories to the International Convention for the Regulation of

Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74, which authorizes

whale hunting when conducted in compliance with a research permit issued by a

signatory. Cetacean has such a permit from Japan. Nonetheless, it has been

hounded on the high seas for years by a group calling itself Sea Shepherd

Conservation Society and its eccentric founder, Paul Watson (collectively “Sea

Shepherd”). Sea Shepherd’s tactics include all of those listed in the previous

paragraph.

Cetacean sued under the Alien Tort Statute, 28 U.S.C. § 1350, for injunctive

and declaratory relief. The statute provides a cause of action for “a tort . . .

committed in violation of the law of nations or a treaty of the United States.” 28

page 3

U.S.C. § 1350. Cetacean argues that Sea Shepherd’s acts amount to piracy and

violate international agreements regulating conduct on the high seas. The district

court denied Cetacean’s request for a preliminary injunction and dismissed its

piracy claims. We have jurisdiction over the order denying the injunction pursuant

to 28 U.S.C. § 1292(a). We also have jurisdiction to review the dismissal of the

piracy claims because the district court’s reasoning for dismissing them is

“inextricably intertwined with” its reasons for denying the preliminary injunction.

Smith v. Arthur Andersen LLP, 421 F.3d 989, 998 (9th Cir. 2005) (internal

quotation marks omitted).

I. DISMISSAL OF THE PIRACY CLAIMS

We review the district court’s dismissal of Cetacean’s piracy claims de novo.

Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008).

“[The definition of piracy under the law of nations . . . [is] spelled out in the

UNCLOS, as well as the High Seas Convention,” which provide almost identical

definitions. United States v. Dire, 680 F.3d 446, 469 (4th Cir. 2012); see United

Nations Convention on the Law of the Sea (“UNCLOS”), art. 101, Dec. 10, 1982,

1833 U.N.T.S. 397; Convention on the High Seas, art. 15, Apr. 29, 1958, 13 U.S.T.

2312, 450 U.N.T.S. 82. The UNCLOS defines “piracy” as “illegal acts of violence

page 4

or detention, or any act of depredation, committed for private ends by the crew or

the passengers of a private ship . . . and directed . . . on the high seas, against

another ship . . . or against persons or property on board such ship.” UNCLOS art.

101 (emphasis added); see also Convention on the High Seas art. 15.

The district court’s analysis turns on an erroneous interpretation of “private

ends” and “violence.” The district court construed “private ends” as limited to

those pursued for “financial enrichment.” But the common understanding of

“private” is far broader. The term is normally used as an antonym to “public”

(e.g., private attorney general) and often refers to matters of a personal nature that

are not necessarily connected to finance (e.g., private property, private entrance,

private understanding and invasion of privacy). See Webster’s New Int’l

Dictionary 1969 (2d. ed. 1939) (defining “private” to mean “[b]elonging to, or

concerning, an individual person, company, or interest”).

We give words their ordinary meaning unless the context requires otherwise.

See Leocal v. Ashcroft, 543 U.S. 1, 8–9 (2004); Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 69 (2012). The context

here is provided by the rich history of piracy law, which defines acts taken for

private ends as those not taken on behalf of a state. See Douglas Guilfoyle, Piracy

Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-

page 5

Piracy Efforts, 57 Int’l & Comp. L. Q. 690, 693 (2008) (discussing the High Seas

Convention); Michael Bahar, Attaining Optimal Deterrence at Sea: A Legal and

Strategic Theory for Naval Anti-Piracy Operations, 40 Vand. J. Transnat’l L. 1, 32

(2007); see also Harmony v. United States, 43 U.S. (2 How.) 210, 232 (1844)

(“The law looks to [piracy] as an act of hostility . . . being committed by a vessel

not commissioned and engaged in lawful warfare.”). Belgian courts, perhaps the

only ones to have previously considered the issue, have held that environmental

activism qualifies as a private end. See Cour de Cassation [Cass.] [Court of

Cassation] Castle John v. NV Mabeco, Dec. 19, 1986, 77 I.L.R. 537 (Belg.). This

interpretation is “entitled to considerable weight.” Abbott v. Abbott, 130 S. Ct.

1983, 1993 (2010) (internal quotation marks omitted). We conclude that “private

ends” include those pursued on personal, moral or philosophical grounds, such as

Sea Shepherd’s professed environmental goals. That the perpetrators believe

themselves to be serving the public good does not render their ends public.

The district court’s interpretation of “violence” was equally off-base. Citing

no precedent, it held that Sea Shepherd’s conduct is not violent because it targets

ships and equipment rather than people. This runs afoul of the UNCLOS itself,

which prohibits “violence . . . against another ship” and “violence . . . against

persons or property.” UNCLOS art. 101. Reading “violence” as extending to

page 6

malicious acts against inanimate objects also comports with the commonsense

understanding of the term, see Webster’s New Int’l Dictionary 2846, as when a

man violently pounds a table with his fist. Ramming ships, fouling propellers and

hurling fiery and acid-filled projectiles easily qualify as violent activities, even if

they could somehow be directed only at inanimate objects.

Regardless, Sea Shepherd’s acts fit even the district court’s constricted

definition. The projectiles directly endanger Cetacean’s crew, as the district court

itself recognized. And damaging Cetacean’s ships could cause them to sink or

become stranded in glacier-filled, Antarctic waters, jeopardizing the safety of the

crew.

The activities that Cetacean alleges Sea Shepherd has engaged in are clear

instances of violent acts for private ends, the very embodiment of piracy. The

district court erred in dismissing Cetacean’s piracy claims.

II. PRELIMINARY INJUNCTION

“A plaintiff seeking a preliminary injunction must establish [1] that he is

likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the

absence of preliminary relief, [3] that the balance of equities tips in his favor, and

[4] that an injunction is in the public interest.” Winter v. Natural Res. Def.

page 7

Council, Inc., 555 U.S. 7, 20 (2008). We review the district court’s denial of the

preliminary injunction for abuse of discretion. Harris v. Bd. of Supervisors, L.A.

Cnty., 366 F.3d 754, 760 (9th Cir. 2004). “A district court would necessarily

abuse its discretion if it based its ruling on an erroneous view of the law or on a

clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405 (1990).

A. Likelihood of Success

Cetacean sought its injunction pursuant to three international agreements:

the Convention for the Suppression of Unlawful Acts Against the Safety of

Maritime Navigation (“SUA Convention”), art. 3, Mar. 10, 1988, S. Treaty Doc.

No. 101-1, 1678 U.N.T.S. 222, the UNCLOS and the Convention on the

International Regulations for Preventing Collisions at Sea (“COLREGS”), Oct. 20,

1972, 28 U.S.T. 3459, 1050 U.N.T.S. 18.

1. The SUA Convention

The SUA Convention prohibits acts that endanger, or attempt to endanger,

the safe navigation of a ship. SUA Convention art. 3. Cetacean presented

uncontradicted evidence that Sea Shepherd’s tactics could seriously impair its

ability to navigate. The district court nonetheless concluded that, since Sea

page 8

Shepherd has not yet disabled any of Cetacean’s ships, it’s unlikely it would

succeed in the future. This was clear error. The district court overlooked the

actual language of the Convention, which prohibits “endager[ing]” safe navigation.

Id. This requires only that Sea Shepherd create dangerous conditions, regardless of

whether the harmful consequences ever come about. See Webster’s New Int’l

Dictionary 843. As to whether Sea Shepherd’s tactics actually are dangerous, the

record discloses that it has rammed and sunk several other whaling vessels in the

past. See Appendix.

The district court also erred by failing to recognize that Sea Shepherd, at the

very least, attempted to endanger the navigation of Cetacean’s ships. An attempt is

sufficient to invoke the SUA Convention, even if unsuccessful. Sea Shepherd’s

repeated claims that its efforts are merely “symbolic” and “employed so as to

ensure maximum safety” are disingenuous. How else can it explain that it has

switched to metal-reinforced prop-fouling ropes? Reinforced ropes carry the same

symbolic meaning as normal ropes, but they are far more destructive. Nor does

symbolism require Sea Shepherd to bring its ships dangerously close to

Cetacean’s. The district court’s conclusion that Cetacean wasn’t likely to succeed

on its SUA Convention claims rested on an implausible determination of the facts

page 9

and an erroneous application of law; it was an abuse of discretion. United States v.

Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

2. The UNCLOS

For the reasons explained above, Part I, supra, the district court erred in its

assessment of Cetacean’s UNCLOS piracy claims, and consequently abused its

discretion in assessing the likelihood of success on these claims. See Cooter &

Gell, 496 U.S. at 405.

3. The COLREGS

The district court did find that Cetacean is likely to succeed on the merits of

its claims under the COLREGS. The COLREGS state obligatory and universal

norms for navigating ships so as to avoid collision. Crowley Marine Services, Inc.

v. Maritrans, Inc., 530 F.3d 1169, 1172–73 (9th Cir. 2008). Sea Shepherd

deliberately navigates its ships dangerously close to Cetacean’s ships. The district

court’s finding that this is likely a violation of the COLREGS is adequately

supported by the record. See Hinkson. 585 F.3d at 1251.

page 10

B. LIKELIHOOD OF IRREPARABLE HARM

The district court determined that “injury is possible, but not likely,” even

though it found that the projectiles Sea Shepherd launches at Cetacean’s ships “are

an obvious hazard to anyone who [sic] they might hit” and that Sea Shepherd

navigates its ships “in such a way that a collision is highly likely.” Sea Shepherd

itself adorns the hulls of its ships with the names and national flags of the

numerous whaling vessels it has rammed and sunk. See Appendix. The district

court’s observation that Cetacean hasn’t yet suffered these injuries is beside the

point. See Helling v. McKinney, 509 U.S. 25, 33 (1993). Cetacean’s

uncontradicted evidence is that Sea Shepherd’s tactics could immobilize

Cetacean’s ships in treacherous Antarctic waters, and this is confirmed by common

sense: A dangerous act, if committed often enough, will inevitably lead to harm,

which could easily be irreparable. Harris, 366 F.3d at 766.

C. BALANCE OF EQUITIES

The district court correctly found that the balance of equities favors

Cetacean. As it noted, “[a]bsent an injunction, the whalers will continue to be the

victims of Sea Shepherd’s harassment,” but “Sea Shepherd . . . points to no

hardship that it will suffer if the court imposes an injunction.”

page 11

D. PUBLIC INTEREST

“The public interest inquiry primarily addresses impact on non-parties rather

than parties.” Bernhardt v. L.A. Cnty., 339 F.3d 920, 931 (9th Cir. 2003) (internal

quotation marks omitted). This is particularly the case where “the impact of an

injunction reaches beyond the parties, carrying with it a potential for public

consequences.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009).

The primary public interests at issue here are the health of the marine ecosystem,

Winter, 555 U.S. at 25–26; see also Earth Island Inst. v. U.S. Forest Serv., 442

F.3d 1147, 1177 (9th Cir. 2006), and the safety of international waterways.

Where a valid law speaks to the proper level of deference to a particular

public interest, it controls. See Golden Gate Rest. Ass’n v. City & Cnty. of S.F.,

512 F.3d 1112, 1126–27 (9th Cir. 2008). Our laws defining the public interest in

regards to whaling are the Whaling Convention Act and the Marine Mammal

Protection Act, both of which permit whaling pursuant to scientific permits issued

under the Whaling Convention. 16 U.S.C. § 1372; 16 U.S.C. § 916c. Cetacean’s

activities are covered by such a permit and thus are consistent with congressional

policy as to the marine ecosystem.

Our laws also reflect a strong public interest in safe navigation on the high

seas. As already discussed, Sea Shepherd’s activities clearly violate the UNCLOS,

page 12

the SUA Convention and the COLREGS. See Part II.A, supra. As such, they are

at loggerheads with the public interest of the United States and all other seafaring

nations in safe navigation of the high seas.

The district court also considered the interest in keeping U.S. courts out of

the international political controversy surrounding whaling. But enjoining piracy

sends no message about whaling; it sends the message that we will not tolerate

piracy. This is hardly a controversial view, as evidenced by a joint statement from

the United States, Australia, the Netherlands and New Zealand condemning

dangerous activities in the Southern Ocean. Joint Statement on Whaling and

Safety at Sea from the Governments of Australia, the Netherlands, New Zealand,

and the United States: Call for Responsible Behavior in the Southern Ocean Whale

Sanctuary (Dec. 13, 2011), available at

http://www.state.gov/r/pa/prs/ps/2011/12/178704.htm. Refusing the injunction

sends the far more troublesome message that we condone violent vigilantism by

U.S. nationals in international waters.

The district court also rejected Cetacean’s claims on international comity

grounds. While there is a public interest in maintaining harmonious international

relations, it’s not a factor here. An Australian court has entered default judgment

against Cetacean, purporting to enjoin it from whaling in Antarctic coastal waters

page 13

over which Australia claims sovereignty. The district court’s deference to

Australia’s judgment in that case was an abuse of discretion. Asvesta v.

Petroutsas, 580 F.3d 1000, 1009 (9th Cir. 2009). To begin, the district court

misunderstood the Australian judgment, which addressed the legality of Cetacean’s

activities, not Sea Shepherd’s. Whatever the status of Cetacean’s whaling under

Australian law, it gives Sea Shepherd no license to engage in piracy. It is for

Australia, not Sea Shepherd, to police Australia’s court orders.

Additionally, comity applies only if the foreign court has competent

jurisdiction. Id. at 1011. But the United States doesn’t recognize Australia’s

claims of sovereignty over Antarctic waters. See Note from U.S. Deputy

Representative to the United Nations, to Secretary-General of the United Nations

(Dec. 3, 2004); Note from Embassy of the United States, to Australian Department

of Foreign Affairs and Trade (Mar. 31, 1995). By according comity to Australia’s

judgment, we would implicitly recognize Australia’s jurisdiction, in contravention

of the stated position of our government. The conduct of foreign affairs is within

the exclusive province of the Executive, see United States v. Hooker, 607 F.2d

286, 289 (9th Cir. 1979), and we must defer to its views, see Willams v. Suffolk

Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839); cf. Mingtai Fire Ins. Co. v. United

Parcel Serv., 177 F.3d 1142, 1147 (9th Cir. 1999).

page 14

E. UNCLEAN HANDS

An injunction is an equitable remedy. Winter, 555 U.S. at 32. While the

Winter factors “are pertinent in assessing the propriety of any injunctive relief,”

id., traditional equitable considerations such as laches, duress and unclean hands

may militate against issuing an injunction that otherwise meets Winter’s

requirements. Here, however, the district court abused its discretion in denying the

injunction based on unclean hands. Seller Agency Council, Inc. v. Kennedy Ctr.

for Real Estate Educ., Inc., 621 F.3d 981, 986 (9th Cir. 2010).

The district court held that Cetacean’s hands are unclean because, “[i]n

flouting the Australian injunction, the whalers demonstrate their disrespect for a

judgment of a domestic court.” Because neither the United States nor Japan

recognizes Australia’s jurisdiction over any portion of the Southern Ocean,

Cetacean owes no respect to the Australian order. Moreover, the unclean hands

doctrine requires that the plaintiff have “dirtied [his hands] in acquiring the right he

now asserts, or that the manner of dirtying renders inequitable the assertion of such

rights against the defendant.” Republic Molding Corp. v. B.W. Photo Utils., 319

F.2d 347, 349 (9th Cir. 1963). Cetacean has done nothing to acquire the rights to

safe navigation and protection from pirate attacks; they flow automatically from

page 15

customary international law and treaties. Nor is there anything remotely

inequitable in seeking to navigate the sea lanes without interference from pirates.

* * *

The district court’s orders denying Cetacean’s preliminary injunction and

dismissing its piracy claims are REVERSED. The preliminary injunction we

issued on December 17, 2012, Inst. of Cetacean Research v. Sea Shepherd

Conservation Soc’y, 702 F.3d 573 (9th Cir. 2012), will remain in effect until

further order of this court. The district judge’s numerous, serious and obvious

errors identified in our opinion raise doubts as to whether he will be perceived as

impartial in presiding over this high-profile case. The appearance of justice would

be served if the case were transferred to another district judge, drawn at random,

and we so order in accordance with the standing orders of the Western District of

Washington. The panel retains jurisdiction over any further appeals or writs

involving this case.

page 16

COUNSEL

Martha Christie Helmer, John Neupert (argued) and James L. Phillips, Miller Nash,

LLP, Portland Oregon, for appellants.

Rachel Eve Buker, Daniel P. Harris (argued) and Charles Philip Moure, Harris &

Moure, PLLC, Seattle, Washington, for appellees.

page 17

Appendix

ER 279

page 18

ER 281