Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y

• Decision Date: 13 June 2016
• Docket Number: CASE NO. C11-2043JLR
• Citation: 191 F.Supp.3d 1228
• Parties: INSTITUTE OF CETACEAN RESEARCH, et al., Plaintiffs, v. SEA SHEPHERD CONSERVATION SOCIETY, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

191 F.Supp.3d 1228

INSTITUTE OF CETACEAN RESEARCH, et al., Plaintiffs,

v.SEA SHEPHERD CONSERVATION SOCIETY, et al., Defendants.

CASE NO. C11-2043JLR

United States District Court, W.D. Washington, at Seattle.

Signed June 13, 2016

Elizabeth Tedesco Milesnick, M. Christie Helmer, John F. Neupert, Miller Nash Graham & Dunn LLP, Portland, OR, James L. Phillips, Miller Nash Graham & Dunn LLP, Seattle, WA, for Plaintiffs.

Claire Loebs Davis, Douglas W. Greene, Kristin Beneski, Taylor Washburn, Lane Powell PC, Seattle, WA, for Defendants.

ORDER

JAMES L. ROBART, United States District Judge

I. INTRODUCTION

This matter comes before the court on Plaintiffs The Institute of Cetacean Research ("the Institute"), Kyodo Senpaku Kaisha, Ltd., and Tomoyuki Ogawa's (collectively, "Plaintiffs") motion to dismiss with prejudice three of Defendants Sea Shepherd Conservation Society ("SSCS") and Paul Watson's (collectively, "Defendants") four counterclaims.¹ (Mot. (Dkt. # 304); see also 3d Amended Counter-Complaint ("3ACC") (Dkt. # 297).) Defendants oppose that motion (Resp. (Dkt. # 311)), and Plaintiffs have filed a reply memorandum (Reply (Dkt. # 312)). Having considered the submissions of the parties, the appropriate portions of the record, and the relevant law,² the court DENIES Plaintiffs' motion to dismiss and ORDERS Defendants to show cause as discussed more fully herein.

II. BACKGROUND

This is a case between Antarctic whalers and environmentalists who oppose whaling. The parties seek damages and injunctive relief related to past, present, and future actions of allegedly perpetrating and funding piracy and unsafe navigation in the Southern Ocean.

A. Procedural Posture

In 2013, the Ninth Circuit granted Plaintiffs preliminary injunctive relief against Defendants' acts of piracy and unsafe navigation. See Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y , 708 F.3d 1099, 1106 (9th Cir.2013) ; Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean I ), 725 F.3d 940 (9th Cir.2013) (amending and superseding 708 F.3d 1099 ). The preliminary injunction bars Defendants from "physically attacking any vessel engaged by Plaintiffs...in the Southern Ocean...or from navigating in a manner that is likely to endanger the safe operation of any such vessel." Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean Injunction) , 702 F.3d 573, 573 (9th Cir.2012) ; Cetacean I , 725 F.3d at 947 (ordering that the Ninth Circuit's injunction pending appeal in Cetacean Injunction "remain in effect until further order of" the Ninth Circuit). Furthermore, Defendants are "[i]n no event" to "approach [P]laintiffs any closer than 500 yards when [D]efendants are navigating on the open sea." Id.

On June 30, 2015, Defendants filed a second amended counter-complaint against Plaintiffs and Hiroyuki Komura. (See 2d Am. Counter-Complaint ("2ACC") (Dkt. # 250).)³ Two of the six counterclaims alleged therein sought injunctive relief for Plaintiffs' alleged whaling and three sought injunctive relief for Plaintiffs' alleged perpetration and financing of piracy and unsafe navigation. (Id. ) On December 21, 2015, the court dismissed Defendants' whaling counterclaims for lack of subject matter jurisdiction and failure to state a claim and dismissed Defendants' piracy and unsafe navigation counterclaims for lack of standing. (See 12/21/15 Order (Dkt. # 294) at 38–49.) The court granted Defendants leave to file a third amended counter-complaint, and Defendants timely did so on January 20, 2016. (3ACC.)

B. Defendants' Factual Allegations

Defendants omit their whaling counterclaims from their third amended counter-complaint. (See generally 3ACC.) However, Defendants contend they have remedied the pleading deficiencies in their piracy and unsafe navigation counterclaims. (See generally Resp.) Plaintiffs disagree and move to dismiss Defendants' injunctive counterclaims with prejudice. (Mot. at 2, 11.) The basic timeline of Defendants' allegations has not changed from those set forth in their second amended counter-complaint.⁴ (Compare 2ACC with 3ACC.) However, Defendants have amended their counter-complaint to provide greater specificity as to the past and future actions taken by the parties—and several non-parties—in the Southern Ocean.

Defendants first clarify the difference between Sea Shepherd, "a loosely organized global conservation movement" consisting of "independent entities in other countries," and SSCS, "a non-profit organization" based in Oregon whose mission is "to end the destruction of habitat and slaughter of wildlife in the world's oceans." (3ACC ¶¶ 3–4.) Although SSCS inspired Sea Shepherd and is among Sea Shepherd's member entities, Sea Shepherd also includes foreign entities with "independent boards, officers, staff, and finances."⁵ (Id. ¶ 4.) SSCS is the only Sea Shepherd entity that is a party to this suit. Mr. Watson founded SSCS, previously served as its executive director, and is now a "strategic advisor to the SSCS board." (Id. ¶ 5.)

After the Ninth Circuit issued its preliminary injunction, "SSCS withdrew from participation in the Southern Ocean whale-protection campaigns, and has not participated in their planning, management, funding, or execution since its withdrawal." (Id. ¶ 50.) However, Defendants "plan to return to the Southern Ocean, beginning in the 2016-2017 season, to conduct campaigns to monitor, research, and protect the vital krill population, and to seek out, monitor, document, and expose poaching activities, including unlawful whaling by" Plaintiffs and Mr. Komura. (Id. ¶¶ 7, 52.) Defendants intend to do so while abiding by the injunction. (Id. ¶ 52.)

Defendants allege that the Institute has "repeatedly launched attacks upon... Sea Shepherd vessels and crew" and that at least some of these attacks have occurred "when the Sea Shepherd vessels have not been engaged in efforts to impede [the Institute]'s whaling or otherwise posed any threat to the whaling fleet." (Id. ¶ 53.) Defendants assert that the Institute's vessels have "tracked down and chased Sea Shepherd vessels across long distances" to launch these attacks. (Id. ) Examples of the Institute's behavior, as proffered by Defendants, include: launching "unprovoked attacks against SSCS's helicopter," which has "never engaged in any act of aggression against any whaling vessel, participated in any operations that endangered [the Institute's fleet's] safe navigation or the safety of the crew, or made any direct attempt to impede their illegal whaling" (id. ¶ 58); "pursuing the STEVE IRWIN for approximately two weeks" and using long-range acoustic devices and dangerous navigation tactics to force the ship to return to port (id. ¶ 61; see also id. ¶¶ 72 (alleging a similar event in 2012, several years later), 82 (alleging a similar event in 2014); 86 (alleging a similar pursuit over the course of six weeks in 2008)); deliberately ramming the ADY GIL (id. ¶ 62) and the BOB BARKER (id. ¶ 65); "pursuing and approaching smaller Sea Shepherd vessels in an aggressive manner" (id. ¶¶ 68, 71); and attempting to foul the rudders and propellers of the BOB BARKER (id. ¶ 75). Although SSCS ceased its direct involvement in the Southern Ocean in 2012, Defendants allege that the events above took place as late as 2014 against foreign Sea Shepherd entities. (Id. ¶ 82.)

Based on the Institute's history of indiscriminate aggression towards SSCS and similar entities and Defendants' intention to continue to monitor krill and poaching in the Southern Ocean, Defendants allege that similar violent encounters are likely to occur in the future, notwithstanding SSCS's professed intention to abide by the injunction. (Id. ¶¶ 52, 84–88.) Defendants therefore seek injunctive relief against Plaintiffs and Mr. Komura for acts of piracy (id. at 89–96), acts of unsafe navigation on the high seas (id. at 97–100), and funding piracy and unsafe navigation (id. at 97–109).⁶ Plaintiffs' motion to dismiss these three counterclaims is now before the court. (See generally MTD.)

III. ANALYSIS

A. Legal Standards

1. Under Rule 12(b)(1)

A motion to dismiss for lack of subject matter jurisdiction is either facial or factual. See Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir.2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. The court accepts the factual allegations in the complaint as true, and the nonmoving party is entitled to have those facts construed in the light most favorable to it. Fed'n of African Am. Contractors v. City of Oakland , 96 F.3d 1204, 1207 (9th Cir.1996). However, if the moving party "convert[s] the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty. , 343 F.3d 1036, 1039 n.2 (9th Cir.2003) (citing St. Clair v. City of Chico , 880 F.2d 199, 201 (9th Cir.1989) ). In either instance, the party asserting its claims in federal court bears the burden of establishing subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

2. Under Rule 12(b)(6)

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court construes the complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc. , 416 F.3d 940, 946 (9th Cir.2005). The court must accept all well-pleaded allegations of material fact as true and draw all reasonable inferences in favor of the plaintiff. See Wyler Summit P'ship v. Turner Broad. Sys., Inc. , 135 F.3d 658, 661 (9th Cir.1998). "To survive a motion to dismiss, a complaint must contain sufficient factual matter,...