Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y
| Decision Date | 19 December 2014 |
| Docket Number | No. 12–35266.,12–35266. |
| Parties | INSTITUTE OF CETACEAN RESEARCH, a Japanese research foundation; Kyodo Senpaku Kaisha, Ltd., a Japanese corporation; Tomoyuki Ogawa, an individual; Toshiyuki Miura, an individual, Plaintiffs–Appellants, v. SEA SHEPHERD CONSERVATION SOCIETY, an Oregon nonprofit corporation; Paul Watson, an individual, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John F. Neupert (argued), M. Christie Helmer, James L. Phillips, Sharae M. Wheeler, Miller Nash LLP, Portland, OR, for Plaintiffs.
Daniel P. Harris, Charles P. Moure, Rebecca Millican, Harris & Moure, PLLC, Seattle, WA, for Defendant Sea Shepherd Conservation Society.
Timothy G. Leyh (argued), Michelle Buhler, Charles S. Jordan, Calfo Harrigan Leyh & Eakes, LLP, Seattle, WA, for Defendant Paul Watson.
David F. Taylor (argued), Kathleen M. O'Sullivan, Zachary P. Jones, Perkins Coie, Seattle, WA, for non-party respondents Lani Blazier, Marnie Gaede, Bob Talbot, Robert Wintner, and Ben Zuckerman.
Clare Loebs Davis, Katie Smith Matison, Lane Powell PC, Seattle, WA, for non-party respondent Susan Hartland.
Kristina S. Bennard, Julia D. Woog, Yarmuth Wilsdon PLLC, Seattle, WA, for non-party respondent Peter Rieman.
On a Motion for Contempt. D.C. No. 2:11–cv–02043–RAJ.
Before: ALEX KOZINSKI, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.
Institute of Cetacean Research (Cetacean), Kyodo Senpaku Kaisha, Ltd., Tomoyuki Ogawa, and Toshiyuki Miura (collectively, Plaintiffs) filed this contempt proceeding against Sea Shepherd Conservation Society (Sea Shepherd US), its founder Paul Watson, its administrative director Susan Hartland, and six volunteer members of the Sea Shepherd US board (collectively, Defendants). The Plaintiffs allege that the Defendants violated our injunction prohibiting Sea Shepherd US, Watson, and “any party acting in concert with them” from physically attacking or coming within 500 yards of the Plaintiffs' whaling and fueling vessels on the open sea.
After we handed down our injunction, the Defendants adopted what they called the “separation strategy.” Pursuant to the strategy, they ceded control of the Operation Zero Tolerance (OZT) campaign, designed to thwart the Plaintiffs' whaling activities in the Southern Ocean, to foreign Sea Shepherd entities. The Defendants knew those entities would use assets transferred to them by the Defendants in the OZT campaign, and that there was a “very high risk” the entities would violate our injunction. It is undisputed that these foreign entities repeatedly committed acts against the Plaintiffs' whaling ships during the OZT campaign that would have violated the injunction if performed by the Defendants.
In this opinion, we consider whether the Defendants violated our injunction when they implemented the “separation strategy.” The Plaintiffs contend that the strategy was aimed at evading our injunction and ensuring that the OZT campaign proceeded unabated, despite the issuance of the injunction. In support of their contention, the Plaintiffs point to undisputed evidence that the Defendants provided substantial assistance to the OZT campaign after our injunction issued. The Defendants contend, on various grounds, that they should not be held liable for the acts of entities they did not control and whose violations they could not prevent.
Our thorough review of the record in this case, and the concessions of counsel at oral argument, compel us to hold Sea Shepherd US, Watson, and Sea Shepherd US's volunteer board members in contempt for violating our injunction.
Plaintiff Cetacean is a Japanese research foundation that has for many years received permits from the Japanese government authorizing it to take whales for research purposes. The International Convention for the Regulation of Whaling, to which the United States, Japan, and 87 other nations are signatories, authorizes whale hunting when conducted in compliance with a research permit issued by a signatory. See Int'l Conv. for the Regulation of Whaling, art. VIII, § 1, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74. Japan issued such a permit to Cetacean that authorized it to take whales in the Southern Ocean during the period December 20, 2012 to March 31, 2013.
For several years, Sea Shepherd US and its founder, Watson, have opposed Cetacean's whale hunting efforts in the Southern Ocean. Sea Shepherd US is organized as an Oregon nonprofit corporation with tax-exempt status under section 501(c)(3) of the Internal Revenue Code. It is governed by an unpaid board of volunteer directors. Several current and former directors of the organization are respondents in this contempt proceeding.
In addition to Sea Shepherd US, there exist a number of foreign Sea Shepherd entities, including those organized and governed under the laws of Australia, Belgium, France, Germany, the Netherlands, and the United Kingdom. We sometimes refer to Sea Shepherd US and the other Sea Shepherd entities collectively as “Sea Shepherd.”
Since 2004, Sea Shepherd has mounted a yearly campaign to prevent Cetacean from killing whales in the Southern Ocean. Sea Shepherd's tactics have included throwing smoke bombs and glass containers of acid at the Plaintiffs' vessels; dragging metal-reinforced ropes in the water to damage the vessels' propellers and rudders; throwing safety flares with metal hooks at nets hung from the Plaintiffs' vessels in the hope that they will set fire to the vessels; and shining high-powered lasers at the Plaintiffs' vessels to annoy the crew.See Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 860 F.Supp.2d 1216, 1223–24 (W.D.Wash.2012), rev'd, 725 F.3d 940 (9th Cir.2013). Sea Shepherd has piloted its vessels in ways that make collisions with the Plaintiffs' vessels highly likely; in fact, collisions have occurred on several occasions. Id. Hoping to prevent Sea Shepherd's dangerous interference with its whaling activities, the Plaintiffs brought an action for injunctive relief in the United States District Court for the Western District of Washington. After the district court denied their request for a preliminary injunction, 860 F.Supp.2d 1216, rev'd, 725 F.3d 940, the Plaintiffs appealed. We reversed. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 725 F.3d 940 (9th Cir.2013).
We issued an injunction pending appeal against Sea Shepherd US and Watson on December 17, 2012. The injunction provided in relevant part:
Defendants Sea Shepherd Conservation Society and Paul Watson, and any party acting in concert with them (collectively “defendants”), are enjoined from physically attacking any vessel engaged by Plaintiffs the Institute of Cetacean Research, Kyodo Senpaku Kaisha, Ltd., Tomoyuki Ogawa or Toshiyuki Miura in the Southern Ocean or any person on any such vessel (collectively “plaintiffs”), or from navigating in a manner that is likely to endanger the safe navigation of any such vessel. In no event shall defendants approach plaintiffs any closer than 500 yards when defendants are navigating on the open sea.
This injunction remains in effect pending further order of court. Inst. of Cetacean Research, 725 F.3d at 947.
At the time our injunction was handed down, Sea Shepherd US was organizing and preparing in earnest for OZT, its ninth annual whale defense campaign against the Plaintiffs. Prior to the issuance of our injunction, Sea Shepherd US, as in previous years, had taken the lead administrative role in preparing for the campaign. It recruited both volunteer and paid crew, and outfitted and fueled four vessels for the campaign: the Bob Barker, Steve Irwin, Sam Simon, and Brigitte Bardot. Sea Shepherd US had already spent over 2 million dollars on the campaign when our injunction issued.
Watson received a copy of our injunction on December 18, 2012, the day after it issued. At that time, Watson was in the Southern Ocean serving as campaign leader, just as he had in previous years. Over the next several days, Watson and other members of Sea Shepherd devised a plan that would come to be known as the “separation strategy.” Pursuant to the strategy, Sea Shepherd US would turn over control of OZT and transfer assets it owned to foreign Sea Shepherd entities, including Sea Shepherd Australia. Sea Shepherd Australia is an Australian public company limited by guarantee and registered under the laws of Australia. For each of the previous whale defense campaigns, Sea Shepherd Australia has provided an operations base for the four vessels as well as logistical support. Watson was a member of the boards of both Sea Shepherd US and Sea Shepherd Australia when the injunction issued. As part of the separation strategy, Watson would step down from the boards of both entities, and a new OZT campaign leader would assume Watson's responsibilities. Watson, however, would remain on board the Steve Irwin as an “observer” during the campaign.
The members of Sea Shepherd US's board learned of the injunction by email on December 18, 2012. When the injunction was handed down, the board was composed of Watson, who was also the paid Executive Director of Sea Shepherd US, and volunteer members Lani Blazier, Marnie Gaede, Bob Talbot, Robert Wintner, Ben Zuckerman, and Peter Rieman, all of whom are respondents in this proceeding.
Gaede, the board's vice president, called a telephonic board meeting for December 20, 2012, during which Sea Shepherd US's attorneys discussed the significance of the injunction and advised the board members on how to respond. All of the board members were present, along with another respondent in this proceeding, Susan Hartland, Sea Shepherd US's Administrative Director. The board discussed the separation strategy and agreed to implement it. Shortly after the board meeting, members of Sea Shepherd US and Sea Shepherd Australia began working together to facilitate the transfer of operational...
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