Shell Offshore Inc. v. Greenpeace, Inc., Case No. 3:12-cv-00042-SLG

• Court: United States District Courts. 9th Circuit. District of Alaska
• Writing for the Court: Sharon L. Gleason
• Parties: SHELL OFFSHORE INC., a Delaware corporation, and SHELL GULF OF MEXICO INC., a Delaware corporation, Plaintiffs, v. GREENPEACE, INC., a California corporation, and JOHN and JANE DOES 1-20, Defendants.
• Docket Number: Case No. 3:12-cv-00042-SLG
• Decision Date: 29 May 2012

SHELL OFFSHORE INC., a Delaware corporation,
and SHELL GULF OF MEXICO INC., a Delaware corporation, Plaintiffs,
v.
GREENPEACE, INC., a California corporation, and JOHN and JANE DOES 1-20, Defendants.

Case No. 3:12-cv-00042-SLG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

Dated: May 29, 2012

ORDER RE ALL PENDING MOTIONS

Page 2

TABLE OF CONTENTS

Introduction...................................................................................................................3

I. Greenpeace USA's Rule 12(b)(1) Motion to Dismiss.......................................4

A. Admiralty Jurisdiction............................................................................................6

B. OCSLA Jurisdiction..............................................................................................9

C. Diversity Jurisdiction...........................................................................................12

D. Is There a Case or Controversy?........................................................................14

II. Greenpeace USA's Rule 12(b)(6) Motion to Dismiss.....................................15

A. Nuisance............................................................................................................17

B. Tortious Interference with Contractual Relations ................................................ 24

C. Trespass and Trespass to Chattels .................................................................... 27

D. Conversion ......................................................................................................... 32

E. Interference with Maritime Navigation ................................................................ 34

III. Shell's Motion for Additional Preliminary Injunctive Relief, or Alternatively, for an Indicative Ruling............................................................35

IV. Shell's Motion for Preliminary Injunction.......................................................41

Conclusion ................................................................................................................... 43

Page 3

Introduction

On March 28, 2012, this court entered a Preliminary Injunction Order solely with respect to the United States twelve-mile territorial waters and ports.¹ That order precludes Greenpeace Inc. ("Greenpeace USA"), and those acting in concert with it from coming within certain designated distances of certain ships that Shell Offshore Inc. and Shell Gulf of Mexico Inc. (collectively "Shell") intend to use this summer for exploratory Arctic drilling operations. This court deferred consideration of the scope of any injunctive relief with regard to Shell's planned operations at shore-based facilities and within the waters of the 200-mile United States Exclusive Economic Zone ("EEZ") pending the completion of the parties' briefing on two alternative motions to dismiss this action that had been filed by Greenpeace USA. Meanwhile, Greenpeace USA has filed an interlocutory appeal of the March 28, 2012 Preliminary Injunction Order to the Ninth Circuit Court of Appeals.²

Three motions that are now fully briefed include: (I) that portion of Greenpeace USA's motion to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1) that was deferred when this court entered the Preliminary Injunction Order on March 28, 2012,³ (II) Greenpeace USA's motion to dismiss this action pursuant to Civil Rule 12(b)(6),⁴ and (III) that portion of Shell's motion for injunctive relief that was deferred in

Page 4

this court's order of March 28, 2012.⁵ Most recently, on May 14, 2012, Shell filed a Motion for Additional Preliminary Injunctive Relief, or Alternatively, for an Indicative Ruling, on shortened time.⁶ That motion has now been fully briefed as well. All four pending motions are addressed in this order.

I. Greenpeace USA's Rule 12(b)(1) Motion to Dismiss

After Greenpeace USA had filed its two motions to dismiss, Shell filed its Second Amended Verified Complaint in this action.⁷ That complaint deleted some of the causes of action that Shell had initially asserted. Shell now alleges five causes of action against Greenpeace USA: nuisance, tortious interference with contractual relations, trespass and trespass to chattels, conversion, and interference with maritime navigation.⁸ For the first four of these causes of action, Shell's Second Amended Complaint has alleged subject matter jurisdiction "under admiralty and maritime law, federal common law, and state law."⁹ As to the fifth cause of action, interference with maritime navigation, Shell has alleged subject matter jurisdiction under "admiralty and maritime law, and federal statutory law."¹⁰

Federal Rule of Civil Procedure 12(b)(1) provides that a party may seek dismissal of an action based on the assertion that the court lacks subject matter

Page 5

jurisdiction. Greenpeace USA maintains that none of the asserted bases for subject matter jurisdiction exists here. It maintains that diversity jurisdiction has not been demonstrated by the face of Shell's complaint and that there is no federal question jurisdiction under either 28 U.S.C. § 1331 or § 1333. Greenpeace USA also asserts that 43 U.S.C. § 1349(b), a provision from the Outer Continental Shelf Lands Act ("OCSLA"), does not support subject matter jurisdiction in this instance. And Greenpeace USA asserts that the International Regulations for Preventing Collisions at Sea ("COLREGS") do not confer subject matter jurisdiction with this court and that international law does not permit the exercise of United States law in this instance. Finally, Greenpeace USA argues that the requisite case or controversy is lacking.

"[W]hen considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction."¹¹ With respect to the alleged future tortious conduct by Greenpeace USA—the focus of the immediate dispute between the parties—this court has relied upon the assertions in the pleadings to determine the scope of subject matter jurisdiction. With regard to the role that Greenpeace USA may have had in the incidents in New Zealand and Finland, the current record on this topic is limited, but it demonstrates a genuine issue of material fact as to the role, if any, that Greenpeace

Page 6

USA may have had in those incidents. Resolution of that factual dispute is not necessary to the determination of this Rule 12(b)(1) motion at this time.¹²

This court's March 28, 2012 Preliminary Injunction Order denied Greenpeace USA's Rule 12(b)(1) motion in part, and held that at a minimum, this court had admiralty jurisdiction pursuant to 28 U.S.C. § 1333 within the United States twelve-mile territorial sea and ports.¹³ The balance of Greenpeace USA's 12(b)(1) motion is now addressed.

A. Admiralty Jurisdiction

Shell has asserted that this court's admiralty or maritime jurisdiction under 28 U.S.C. § 1333 extends beyond the twelve-mile territorial sea with respect to each of the five causes of action it has pled in its Second Amended Complaint. Greenpeace USA asserts that this court's admiralty jurisdiction does not extend beyond the territorial sea and an additional twelve-mile contiguous zone.¹⁴

There are two components to the test for admiralty tort jurisdiction.¹⁵ First, the incident must occur on navigable waters.¹⁶ It is well established that this locality requirement includes the high seas as well as the United States Exclusive Economic

Page 7

Zone ("EEZ").¹⁷ Second, a party seeking to invoke maritime jurisdiction must show "a substantial relationship between the activity giving rise to the incident and traditional maritime activity."¹⁸ In this regard, "a court must assess the general features of the type of incident involved to determine whether such an incident is likely to disrupt [maritime] commercial activity."¹⁹

The underlying bases of each of Shell's causes of action in its Second Amended Complaint are allegations that Greenpeace USA has interfered, and intends in the future to interfere, with the free passage of Shell's owned and contracted vessels and its planned Arctic drilling activities. Greenpeace USA has separately analyzed subject matter jurisdiction with respect to the past alleged tortious conduct in the Gulf of Mexico, New Zealand, and Finland, and the alleged future threatened conduct within the United States EEZ and at land-based facilities. As noted above, this court will not decide the full scope of subject matter jurisdiction with respect to the alleged past tortious conduct by Greenpeace USA in other locations at this time. Rather, such analysis would be more effectively undertaken if and when a greater factual record with respect to Greenpeace USA's role in those actions is before the court. But with respect to Shell's

Page 8

allegations of...