Ninth Circuit issues preliminary injunction recognizing activist conservation society as pirates.

• Author: Keefe, Ryan A.

Institute of Cetacean Research v. Sea Shepherd Conservation Society, 708 F.3d 1099 (9th Cir. 2013).

The Sea Shepherd Conservation Society (Sea Shepherd) has garnered worldwide attention for its controversial methods of protecting whales and other marine wildlife, eliciting strong reactions from parties as disparate as Canadian Premiers and the South Park television show. (1) None of Sea Shepherd's conflicts have caused more disputes about the role of international law, piracy, and international treaties than its attacks against the Institute of Cetacean Research (Institute), a collection of Japanese scientific researchers whose hunting methods ultimately kill whales. (2) In Institute of Cetacean Research v. Sea Shepherd Conservation Society, (3) the United States Court of Appeals for the Ninth Circuit granted the Institute a preliminary injunction against Sea Shepherd, and its efforts to stop internationally authorized whaling. (4) The Ninth Circuit concluded that the District Court's denial of the preliminary injunction was a culmination of serious errors, primarily, its determination that Sea Shepherd's acts did not constitute piracy. (5)

In 1986, the International Whaling Commission (IWC) established a moratorium on commercial whaling. (6) Article VIII of the International Convention for Regulation of Whaling (Whaling Convention) allows "countries to engage in whaling for the purposes of scientific research." (7) In 1999, Australia laid claim to a region of the Southern Ocean which it called the Australian Whale Sanctuary (AWS) in an effort to give itself jurisdiction over the Japanese whalers who hunted in that region. (8) Australia's Federal Court issued a permanent injunction against the Japanese whalers but "neither Australia's courts nor other arms of its government have attempted to enforce the injunction." (9) Accordingly, Japanese whalers hunt humpback whales, sei whales, fin whales, and sperm whales, and some of this hunting has occurred in the off-limits AWS. (10)

The Institute is a fleet of Japanese whaling vessels that, for the last twenty years, has received a research permit from the Japanese government to capture and kill whales in the Southern Ocean. (11) Since the 2005-2006 whaling season, Sea Shepherd "has used a small fleet of ships (under Paul Watson's) command to stymie [the Institute's] whaling in the Southern Ocean." (12) The Japanese-flagged whaling fleet consists of three small ships for pursuing whales, one larger ship to hold the whale carcasses, and another large ship that is dedicated solely to offsetting Sea Shepherd's disruption efforts. (13) Sea Shepherd uses two Dutch-flagged fleet vessels that are smaller than the Japanese pursuit ships, and an Australian-flagged ship that is even smaller than the Dutch vessels. (14)

Sea Shepherd has engaged in numerous activities in the Southern Ocean in order to disrupt and ultimately stop the Institute from whaling. (15) Thus far, the it has thrown glass bottles containing paint or butyric acid, launched safety flares with metal hooks, thrown smoke bombs, employed high powered lasers, dragged towing lines to destroy the rudder or propeller of the ships, and intentionally piloted ships to collide with the whaling ships. (16) The Institute has deployed countermeasures such as bamboo poles, long-range acoustic devices, concussion grenades, and grappling hooks to fend off Sea Shepherd. (17) Neither party produced significant evidence of being harmed by these actions, although the whalers have videotaped ship collisions on three separate occasions. (18) The Institute sought injunctive and declaratory relief from the United States District Court for the Western District of Washington on four grounds: Alien Tort Statute (ATS) piracy claims; ATS safe navigation claims; admiralty claims; and civil conspiracy. (19) The Ninth Circuit held that the District Court had erroneously failed to issue the preliminary injunction against Sea Shepherd, and wrongfully dismissed the Institute's ATS piracy claims. (20)

All federal district courts are granted subject matter jurisdiction to establish whether a violation of the law of nations is actionable under the ATS. (21) In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court "held that the ATS might permit suits for violations of modern norms comparable to [the] paradigmatic late- eighteenth century norms of the law of nations," namely offenses against ambassadors, violations of safe conduct, and acts of piracy. (22) Actionable ATS violations of international law must concern specific, universal, and obligatory norms. (23) To remedy violations of international law norms, district courts have the power under the ATS to issue a preliminary injunction when a party demonstrates it is likely to suffer irreparable harm without the injunction, a likelihood of success on the merits, a balance of hardships in its favor, and that public interest would favor issuing an injunction. (24) Four major international treaties are relied upon to support claims of piracy and interference with maritime navigation: the United Nations Convention on the Law of the Sea (UNCLOS); Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA); International Regulations for Preventing Collisions at Sea (COLREGS); and the High Seas Convention. (25) Even courts in the same federal district have previously split on the question whether piracy meets specific, universal, and obligatory standards of international law claims. (26)

UNCLOS defines piracy as acts of violence outside of a state's jurisdiction that are directed against a ship and committed for private ends. (27) SUA serves as a source for deciding ATS safe navigation claims because SUA has traditionally been regarded as an international law source that manages claims of both privacy and safe navigation. (28) SUA prohibits acts of violence against either a person on board a ship or the ship itself which causes damage to the ship or its cargo, including placing a device or substance on a ship that is likely to damage the ship. (29) Courts can use seven factors to assess whether admiralty claims exist and determine what choice of law the court may use: the place of the wrongful act; the flag of the vessel; the allegiance or domicile of the injured party; the allegiance of the ship-owner; the place of the contract; the inaccessibility of the foreign forum; and the law of the forum. (30)

The importance of international comity stems from the basic principal that nations will typically favor their domestic interests over foreign interests presented in a domestic forum. (31) A domestic court's extension of international comity to foreign courts is neither an absolute obligation nor is it a formal courtesy. (32) International comity requires that decisions of foreign tribunals should be recognized in domestic courts when possible because such recognition expands the influence of U.S. courts in the international community and facilitates international cooperation. (33) Furthermore, legal authorities have understood that comity's obligations stop when recognizing comity would vitiate the public polices of the adjudicating forum. (34) Ultimately, international comity may encourage a court to show deference to foreign courts, but case-specific inquiries are appropriate when foreign adjudicative bodies elicit concerns over fairness. (35)

In Institute of Cetacean Research v. Sea Shepherd Conservation Society, the Ninth Circuit granted the Institute a preliminary injunction against Sea Shepherd, and reversed the dismissal of the Institute's ATS claims of piracy against Sea Shepherd. (36) The District Court correctly acknowledged that Sea Shepherd posed a substantial risk of continuing its tactics and behavior going forward, but incorrectly concluded that such continuing tactics and behavior did not require injunctive relief because no one had been irreparably harmed yet and such harm was unlikely to occur in the future. (37) The Ninth Circuit held that UNCLOS and SUA established international norms for ATS purposes and that the plain language of the treaties defined piracy in a way that certainly included Sea Shepherd Conservation Society's actions. (38) Furthermore, the Ninth Circuit stated that the District Court erred when it considered international comity concerns as a basis for denying the preliminary injunction when international comity concerns were actually inapplicable to the case. (39) International comity concerns were deemed irrelevant insofar as Australia did not have actual jurisdiction over the disputed AWS; any judicial recognition of Australian jurisdiction would contravene the established position of the United States government. (40)

The Ninth Circuit correctly reversed the District Court's decision, holding that issuing a preliminary injunction against the whalers was required, and that dismissal of piracy claims against Sea Shepherd was wrong. (41) The District Court accurately predicted that, had the preliminary injunction not been issued, more whales would die in the short term, negatively impacting public interest. (42) Sea Shepherd's avowed use of increasingly destructive and dangerous means for stopping vessels in the AWS contradicted its contention that it was not attempting to endanger whaling vessels, and that a preliminary injunction was not appropriate. (43) Moreover, the District Court had acknowledged that issuing the preliminary injunction would not prevent Sea Shepherd from continuing its whale conservation mission as the conservation society could still pursue its agenda in a variety of other ways. (44) Instead of viewing the preliminary injunction from the point of view of the harm done to the whalers, the District Court instead viewed the preliminary injunction with more of a mind to the "good" Sea Shepherd was trying to accomplish--precisely the wrong standard for issuing a preliminary injunction. (45)

As the Ninth...