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

• Decision Date: 19 March 2012
• Docket Number: Case No. C11–2043RAJ.
• Citation: 860 F.Supp.2d 1216
• Parties: The INSTITUTE OF CETACEAN RESEARCH, et al., Plaintiffs, v. SEA SHEPHERD CONSERVATION SOCIETY, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

860 F.Supp.2d 1216

The INSTITUTE OF CETACEAN RESEARCH, et al., Plaintiffs,

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

Case No. C11–2043RAJ.

United States District Court,

W.D. Washington,

at Seattle.

March 19, 2012.

James L. Phillips, Miller Nash LLP, Seattle, WA, M. Christie Helmer, John F. Neupert, Miller Nash, Portland, OR, for Plaintiffs.

Charles P. Moure, Daniel P. Harris, Rachel Eve Buker, Harris & Moure PLLC, Seattle, WA, for Defendant.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

RICHARD A. JONES, District Judge.

I. INTRODUCTION

This matter comes before the court on Plaintiffs' motion for a preliminary injunction. Dkt. # 13. This order also resolves several issues that Defendants raised in their motion to dismiss, although the court will issue a separate order addressing that motion. The court heard oral argument from the parties on February 16, 2012. Having reviewed the parties' briefs and the voluminous evidentiary record, the court DENIES the motion for a preliminary injunction for the reasons stated below.

Because this order “grant[s] or refus[es] an interlocutory injunction,” the court must make findings and fact and conclusions of law. Fed.R.Civ.P. 52(a)(2). The court includes its findings and conclusions in this order, which serves as a memorandum of the court's decision. Fed.R.Civ.P. 52(a)(1) (permitting findings and conclusions within “an opinion or a memorandum of decision”); see also FTC v. H.N. Singer, Inc., 668 F.2d 1107, 1109 (9th Cir.1982) (noting that explicit factual findings are unnecessary).

II. BACKGROUND

This case concerns a long-enduring standoff in the high seas that has attracted the attention, but not the intervention, of many nations' governments. Defendant Sea Shepherd Conservation Society (“Sea Shepherd”), headed by Defendant Paul Watson, has used a small fleet of ships under Mr. Watson's command to stymie Plaintiffs' whaling in the Southern Ocean. Plaintiffs, to whom the court will refer collectively as the “whalers”, ¹ have their own fleet that kills hundreds of whales each year in the Southern Ocean. An understanding of each fleet's presence in the Southern Ocean begins with an understanding of international whaling regulation.

A. Whaling in the Southern Ocean

The International Convention for the Regulation of Whaling (“Whaling Convention”) established the International Whaling Commission (“IWC”). Int'l Conv. for the Regulation of Whaling, Art. III, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72. Since 1986, the IWC has maintained a moratorium on commercial whaling. Whaling Convention, Sch. ¶ 10(e). The moratorium has no binding force; any member nation is free to object to it and disregard it. Whaling Convention, Art. V. Japan, a longtime IWC member, initially objected to the moratorium, but withdrew its objection in 1987. Although it purports to eschew “commercial whaling,” Japan takes advantage of IWC rules that permit any member nation to issue permits to kill whales for “scientific research.” Whaling Conv., Art. VII. The IWC has no authority over the permits. For more than 20 years, Japan has issued a “research” permit that permits the slaughter of hundreds of whales in the Southern Ocean. Holders of Japan's permits have killed thousands of whales in the Southern Ocean since 1987. The whalers in this case have been the recipients of Japan's permit for many years. This season, for example, they have a permit to kill up to 935 minke whales, 50 fin whales, and 50 humpback whales. Compl. (Dkt. # 1), Ex. 1. There is no evidence that this “research” has produced any work of scientific value. There is no evidence that killing whales is necessary to perform legitimate scientific research. There is no dispute that the whalers sell meat from the whales they kill for consumption in Japan. Using the shelter of Japan's “research” permit, the whalers have sold whale meat despite the IWC's creation of the Southern Ocean Whale Sanctuary in 1994, an additional prohibition on commercial whaling. Whaling Conv., Sch. ¶ 7(b).

Plaintiffs' whaling is the focus of criticism, if not outright condemnation, from many nations' governments. As recently as last December, the governments of the United States, Australia, New Zealand, and The Netherlands jointly stated that they “remain resolute in [their] opposition to commercial whaling, including so-called ‘scientific’ whaling, in particular in the Southern Ocean Whale Sanctuary....” J. Statement on Whaling and Safety at Sea (Dec. 13, 2011) (http:// www. state. gov/ r/ pa/ prs/ ps/ 2011/ 12/ 178704. htm). They stated their “disappoint[ment] about the recent departure of the Japanese whaling fleet for the Southern Ocean,” and “emphasize[d] that lethal techniques are not required in modern whale conservation and management.” Id. The Buenos Aires Group, consisting of IWC members Argentina, Brazil, Chile, Costa Rica, Ecuador, Mexico, Peru, and Uruguay, declared their “strongest rejection of the hunting of nearly a thousand whales ... in the Southern Ocean Whale Sanctuary.” Buenos Aires Group J. Statement, Feb. 21, 2011 (http:// portal 3. sre. gob. mx/ english) (Press Release No. 51). The IWC itself has repeatedly passed resolutions criticizing Japan's “research” program in the Southern Ocean. See, e.g., IWC Res. Nos. 1989–3, 1994–10, 2001–7, 2003–1 & 2, 2005–1, 2007–1 (http:// www. iwcoffice. org/ meetings/ resolutions/ search Res. htm).

Among the world's governments, Australia has taken the most active role in protecting Southern Ocean whales. In 1999 it created the Australian Whale Sanctuary (“AWS”), a swath of the Southern Ocean encompassing all waters within 200 miles of Australia's Antarctic territory. See Humane Society Int'l v. Kyodo Senpaku Kaisha Ltd., 2008 FCA 3, ¶¶ 5–8 (FCR 2008) (describing creation of AWS).² Because Australia's claim to its Antarctic territory is disputed, only the United Kingdom, France, Norway, and New Zealand recognize the AWS. Id. ¶¶ 13. That has not deterred Australia's courts. In January 2008, Australia's Federal Court issued a permanent injunction in a case that the Human Society International brought against the whalers. The court concluded that the whalers had killed whales in the AWS in violation of Australian law. Id. ¶ 39. It enjoined the whalers from hunting and killing whales in the AWS. Id. ¶ 55. The whalers, who refused to participate in the Australian proceedings, do not dispute that they have hunted and killed whales in the AWS since the injunction. It is not clear whether they have violated the injunction this season. So far as the record reveals, neither Australia's courts nor other arms of its government have attempted to enforce the injunction.

Australia has recently taken its opposition to Southern Ocean whaling a step further. It has sued Japan in the International Court of Justice (“ICJ”), contending that Japan's “research” whaling permits violate the Whaling Convention's commercial whaling moratorium and regulation on the Southern Ocean Whale Sanctuary. ICJ Press Release No. 2010/16 (June 1, 2010) (http:// www. icj- cij. org/ docket/ files/ 148/ 15953. pdf). The ICJ is awaiting Japan's response to Australia's pleadings.

B. Sea Shepherd's Confrontation with the Whalers

While the world's governments condemn Antarctic whaling from afar, Sea Shepherd is in the Southern Ocean actively intervening to keep the whalers from their prey. Whaling season in the Southern Ocean lasts from November or December until February or March. Sea Shepherd has coordinated a campaign to frustrate the whalers' efforts in each of the last seven seasons, including this one, dating back to the 2005–2006 season. It also mounted an initial Southern Ocean campaign in 2002.

Sea Shepherd characterizes its Southern Ocean campaigns as “aggressive protests”; the whalers characterize them as terrorism. Whatever label one chooses, there is ample evidence of the tactics that Sea Shepherd uses. The whalers have captured those tactics in photographs and videos; the Animal Planet network has captured them for the past three seasons for use in its “Whale Wars” television program. The court now describes Sea Shepherd's tactics. In doing so, it makes only preliminary findings based on the evidence currently in the record. Based on that evidence, the court describes the facts as the parties would likely be able to prove them at trial.³

The whaling fleet consists solely of Japanese-owned, Japanese-flagged vessels, including the NISSHIN MARU (“NM”), a 425–feet–long, 63–feet–wide ship, and three smaller ships, named YUSHIN MARU number one, two, and three (“YM1,” “YM2,” and “YM3”). The NM is the only ship large enough to hold dead whales. The YM vessels search for, chase, and harpoon whales. It also appears that the whaling fleet uses at least one other large vessel (apparently named SHONAN MARU NO. 2 (“SM2”)) devoted solely to resisting Sea Shepherd's tactics. There are more than a hundred crew members who work aboard the whaling fleet's ships.

The Sea Shepherd fleet consists of the BOB BARKER and the STEVE IRWIN, two Dutch-flagged ships that are about 160 feet long, slightly smaller than the YM ships. The BRIGITTE BARDOT, an Australian-flagged 100–foot trimaran, is faster and more maneuverable than the larger boats. Sea Shepherd also uses a number of rigid inflatable boats (“zodiacs”) that it launches from the larger ships. Slightly fewer than a hundred crew members work aboard Sea Shepherd's Southern Ocean fleet. Fewer than half of them are citizens of the United States. The Sea Shepherd fleet launches from Australian ports, which are the base of operations for its Southern Ocean campaign. In prior seasons, both the whaling fleet and the Sea Shepherd fleet have used different vessels (or the same vessels under different names), but the essential composition of the fleets has remained the same.

Sea Shepherd throws glass bottles filled with paint or butyric acid at the whaling ships. Often, its crew throws the...