Shell Offshore, Inc. v. Greenpeace, Inc.

• Decision Date: 12 March 2013
• Docket Number: No. 12–35332.,12–35332.
• Parties: SHELL OFFSHORE, INC., a Delaware corporation; Shell Gulf of Mexico, Inc., a Delaware corporation, Plaintiffs–Appellees, v. GREENPEACE, INC., a California corporation, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

709 F.3d 1281

SHELL OFFSHORE, INC., a Delaware corporation; Shell Gulf of Mexico, Inc., a Delaware corporation, Plaintiffs–Appellees,

v.GREENPEACE, INC., a California corporation, Defendant–Appellant.

No. 12–35332.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Oct. 9, 2012.

Filed March 12, 2013.

Rebecca J. Hozubin and Michael A. Moberly (argued), Law Office of Hozubin & Moberly, Anchorage, AK, for Defendant–Appellant.

Jeffrey W. Leppo (argued), Ryan P. Steen and Jason T. Morgan, Stoel Rives, LLP, Seattle, WA, and James Torgerson, Stoel Rives LLP, Anchorage, AK, for Plaintiffs–Appellees.

Appeal from the United States District Court for the District of Alaska, Sharon L. Gleason, District Judge, Presiding. D.C. No. 3:12 cv–0042 SLG.

Before: KOZINSKI, Chief Judge, TASHIMA and MILAN D. SMITH, JR., Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Shell Offshore, Inc. and Shell Gulf of Mexico, Inc. (together, “Shell”) hold multi-year oil and gas leases in the Outer Continental Shelf (“OCS”), located in the Arctic Ocean off the coast of Alaska. Greenpeace, Inc. (“Greenpeace USA”) has publicly undertaken a campaign to “stop Shell” from drilling in the Arctic. The district court granted Shell's motion for a preliminary injunction, which prohibited Greenpeace USA from coming within a specified distance of vessels involved in Shell's Arctic OCS exploration and from committing various unlawful and tortious acts against those vessels. Greenpeace USA argues that the action is not justiciable, that the district court lacked subject matter jurisdiction to issue its order, and that the court erred in its application of Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), to the merits of Shell's motion. We conclude that the action presents a justiciable case or controversy, that the district court had jurisdiction to issue its order, and that it did not abuse its discretion in doing so. Accordingly, we affirm.

I. BACKGROUND

A. Greenpeace Efforts to Stop Arctic Drilling

Shell has presented evidence that Greenpeace USA and Greenpeace entities around the world are publicly committed to stopping Shell's exploration of its Arctic OCS leases. Indeed, the websites of virtually all Greenpeace organizations, including Greenpeace USA, prominently feature a campaign to “stop Shell.”

But “stop Shell” is not merely a campaign of words and images. Greenpeace USA also uses so-called “direct actions” to achieve its goals, and its general counsel has conceded that direct action can include illegal activity. There is evidence that Greenpeace USA and its counterparts around the globe are united in the goal of stopping Shell. When Greenpeace activists forcibly boarded an oil rig off the coast of Greenland in 2010 and used their bodies to impede a drilling operation, Greenpeace USA's executive director described their conduct as “bold non-violent direct action” by “our activists.” Greenpeace USA similarly endorsed the forcible boarding of a Shell vessel by Greenpeace New Zealand activists in February 2012, again referring to them as “our brave activists.”

The record before the district court contained evidence that Greenpeace activists used illegal “direct action” to interfere with legal oil drilling activities on many such occasions. Several incidents involved Shell vessels that were subsequently named in the district court's preliminary injunction order and used in Shell's 2012 Arctic OCS drilling operation. See Shell Offshore Inc. v. Greenpeace, Inc., 864 F.Supp.2d 839, 854–55 (D.Alaska 2012). These incidents were as follows:

1. Direct Action Against Shell's Harvey Explorer Vessel

Greenpeace USA activists unlawfully boarded the Harvey Explorer, a vessel that Shell contracted to use in its Arctic OCS operation, in May 2010. The vessel was in the Gulf of Mexico (and scheduled to depart for Alaska) when activists boarded it, unfurled banners, and painted slogans on its walls.¹2. Direct Action Against Cairn Energy's Arctic Drilling Operation

Shell adduced evidence that Greenpeace used direct action against another energy company, Cairn Energy, in order to prevent Cairn from conducting OCS oil and gas exploration activities in the Arctic Ocean. Greenpeace USA's executive director described the first such action in Greenpeace International's 2010 Annual Report:

In August, our activists evaded Danish navy commanders and scaled Cairn's exploration rig off Greenland, halting the operation—we knew that, due to very tight deadlines, even a minor delay could have a major effect; Cairn didn't find oil in 2010.

Dkt. 56–19 (Ex. 1015 at 0005).

In 2011, Greenpeace activists again boarded a Cairn vessel off the coast of Greenland. Approximately twenty such activists were arrested after climbing the rig, attaching themselves under the rig in a “survival pod,” and hanging a few meters from the drill bit. A news report posted on the Greenpeace Africa website quoted one of the “climbers” as saying:

There's no way Cairn can drill for oil while we're hanging next to their drill-bit, and it's going to be extremely difficult for them to remove our survival pod. To drill oil here would be dangerous insanity. We have to stop the Arctic oil rush.

Dkt. 56–25 (Ex. 1020 at 0001).

3. Direct Action Against Shell's Noble Discoverer Vessel

In February 2012, six Greenpeace New Zealand activists illegally boarded and occupied the Shell drillship Noble Discoverer while it stopped at New Zealand on its way to the Arctic Ocean. Activists equipped with survival gear scaled the 53–meter drilling tower, secured themselves to the rig, and unfurled “stop Shell” banners. They were arrested by New Zealand authorities four days later. Greenpeace USA, in its blog, endorsed the activists' conduct and described them as “our brave activists.” Dkt. 11–14 at 2. Its website described the incident as “only the first chapter in what will undoubtedly be an epic battle.”

4. Direct Action Against Shell's Nordica and Fennica Vessels

In March 2012, Greenpeace activists boarded and occupied the Nordica and Fennica, two of Shell's “icebreaker” support vessels, while in port in Finland. Again in May 2012, Greenpeace activists twice boarded and occupied the Nordica while it transited through Swedish and Danish waters. Activists chained themselves to the vessel, dropped weights and other objects in the water to obstruct the vessel's propulsion, and created a human blockade using divers.

B. Preliminary Injunction

Shell was scheduled to begin federally-authorized exploration of its Arctic OCS leases in 2012. In the months leading up to the exploration, Shell first obtained a temporary restraining order and then a preliminary injunction that barred Greenpeace USA from coming within specified distances of named Shell vessels ² involved in the OCS exploration. See Shell Offshore Inc. v. Greenpeace, Inc., 2012 WL 1931537, at *16 (D.Alaska May 29, 2012) (amended order); Shell Offshore, 864 F.Supp.2d at 855 (original order). The injunction also prevented Greenpeace USA from committing various tortious and illegal acts against those vessels and their occupants.³ By its own terms, the injunction expired on October 31, 2012—the last day of the 2012 Arctic Ocean open water season during which Shell would explore its OCS leases.

Greenpeace USA challenges the injunction on several grounds: (1) that the dispute does not present a justiciable case or controversy; (2) that the district court lacked subject matter jurisdiction; (3) that Shell has sued the wrong Greenpeace entity; and (4) that the district court based its ruling on legal standards and factual findings that were erroneous. We conclude that each of these contentions lacks merit.

II. STANDARD OF REVIEW

Our standard of review for preliminary injunction appeals is by now familiar:

We review the district court's decision to grant or deny a preliminary injunction for abuse of discretion. Our review is limited and deferential. The district court's interpretation of the underlying legal principles, however, is subject to de novo review and a district court abuses its discretion when it makes an error of law.

Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003) (en banc) (internal citations omitted); see also United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.2009) (en banc) (articulating our two-part test for abuse of discretion). We review findings of fact for clear error. Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir.2011). “Under this standard, [a]s long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.” Id. (alteration in original) (internal quotation marks omitted).

We review standing, ripeness, and mootness de novo. See Doe No. 1 v. Reed, 697 F.3d 1235, 1238 (9th Cir.2012); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.2009). “[W]e have an independent obligation to consider mootness sua sponte.” NASD Dispute Resolution, Inc. v. Judicial Council, 488 F.3d 1065, 1068 (9th Cir.2007) (internal quotation marks omitted).

III. JUSTICIABILITY

A. Standing and Ripeness

Greenpeace USA's justiciability arguments are hazy, but appear to challenge both Shell's standing to sue and the ripeness of the dispute. “Article III standing requires an injury that is actual or imminent, not conjectural or hypothetical. In the context of injunctive relief, the plaintiff must demonstrate a real or immediate threat of irreparable injury.” Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1100 (9th Cir.2000) (internal quotation marks omitted). The same facts by which Shell has shown (1) a likelihood of success on the merits of its claim that Greenpeace USA would commit tortious or illegal acts against Shell's Arctic drilling operation in the absence of an injunction, and (2) that the resulting harm would be...