Shell Offshore Inc. v. Greenpeace, Inc.

• Decision Date: 04 March 2016
• Docket Number: No. 15–35392.,15–35392.
• Citation: 815 F.3d 623
• 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

815 F.3d 623

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. 15–35392.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 18, 2015.

Filed March 4, 2016.

Matthew F. Pawa(argued), Benjamin Krass, Pawa Law Group, P.C., Newton, MA; Laura W. Brill, Kendall Brill & Klieger LLP, Los Angeles, CA, for Defendant–Appellant.

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

Before: ALEX KOZINSKI, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Plaintiffs Shell Offshore Inc. and Shell Gulf of Mexico Inc. (together, "Shell"), subsidiaries of Royal Dutch Shell plc, and Defendant Greenpeace, Inc. ("Greenpeace"), a non-profit environmental organization, are long-term foes in this Court. Shell has invested significant amounts of time and money in its search for oil in the Chukchi Sea, a stretch of ocean off the northwest coast of Alaska. Greenpeace regards Shell's efforts as dangerous and environmentally irresponsible. As a result, it has engaged in several direct-action protests in an effort to impede Shell's exploration activities.

In this appeal, the parties once again clash over the propriety of a preliminary injunction entered by the district court to protect Shell from certain more vigorous and more intrusive aspects of Greenpeace's activism.

On appeal, Greenpeace challenges the injunction on several jurisdictional bases, as well as on the merits. We do not reach any of these issues, however, because we conclude that the appeal is moot. Accordingly, we dismiss the appeal and remand for further proceedings.

I. BACKGROUND

A. The 2012 Litigation

In 2012, Greenpeace launched a campaign to "Stop Shell" from drilling for oil in the Chukchi Sea, as part of its greater efforts to "Save the Arctic." Opposed to a project they considered to be a critical threat to the environment, Greenpeace activists unlawfully boarded several ships employed by Shell in its offshore drilling operations. In response, Shell filed suit in the District of Alaska. It sought a preliminary injunction to prevent Greenpeace from interfering with its vessels during the Arctic drilling season. See Shell Offshore Inc. v. Greenpeace, Inc. ("Greenpeace I "), 864 F.Supp.2d 839, 841–42 (D.Alaska 2012). The district court granted Shell's request. The resulting injunction established safety zones around each of the vessels in Shell's Arctic drilling fleet, which Greenpeace was prohibited from entering. Id. at 854–56. The injunction also barred Greenpeace from committing various torts and acts of trespass against Shell's vessels. Id. at 855.

Greenpeace appealed the preliminary injunction, and we affirmed. Shell Offshore Inc. v. Greenpeace, Inc. ("Greenpeace II "), 709 F.3d 1281, 1292 (9th Cir.2013). While the appeal was pending, the Arctic drilling season ended and the preliminary injunction expired. Id. at 1287. We concluded that the case was nevertheless not moot because the mootness exception for cases "capable of repetition, yet evading review" applied. Id. We reasoned that Shell held multi-year drilling rights in the Chukchi Sea and "[a] preliminary injunction limited to a single Arctic Ocean open water season ... will never last long enough to allow full litigation" of the merits. Id. Following our decision in Greenpeace II, Shell voluntarily dismissed the action without prejudice.

B. The 2015 Litigation

In January 2015, Shell announced renewed plans to drill in the Chukchi Sea during the summer drilling season. In response, Greenpeace resurrected its "Stop Shell" campaign. On April 6, 2015, six activists boarded and secured themselves to the Polar Pioneer, a drilling vessel under contract with Shell. The activists—one of whom was a Greenpeace employee—remained on board the Polar Pioneer for six days. One day after the activists commenced their protest, Shell filed a new suit—the instant action—against Greenpeace in the District of Alaska, asserting claims for both injunctive relief and monetary damages.

After an evidentiary hearing, the district court granted Shell a preliminary injunction against Greenpeace. Shell Offshore, Inc. v. Greenpeace, Inc., 2015 WL 2185111 (D.Alaska 2015). As in 2012, the preliminary injunction established safety zones around each of Shell's contracted vessels. The injunction also established aerial safety zones around all helideck-equipped ships; banned Greenpeace from engaging in specified actions affecting Shell's systems and facilities; and prohibited Greenpeace from operating "any drones anywhere within the Burger Prospect in the Chukchi Sea" during the drilling season. Id. at *6–8. Greenpeace timely appealed the preliminary injunction, challenging the district court's jurisdiction to issue the injunction, in addition to contesting the injunction on the merits. We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1292(a)(1).

1. The St. John's Bridge Protest

In July 2015, while this appeal was pending and the preliminary injunction remained in effect, Greenpeace activists suspended themselves from St. John's Bridge over the Willamette River in Portland, Oregon. As stated in an email to supporters, the activists' purpose was to block one of Shell's contracted vessels, the Fennica, from leaving the Portland harbor. The Fennica fell within the preliminary injunction's safety zones, so Shell moved the district court to enforce the injunction.

After an emergency hearing, the district court entered a preliminary order of civil contempt (the "Contempt Order"). The Contempt Order imposed sanctions "so long as [Greenpeace] activists continue to hang from the St. John's Bridge in Portland." The sanctions were structured as a progressively increasing schedule of fines against Greenpeace: $2,500 for each hour in contempt during the first day; $5,000 per hour during the second day; $7,500 per hour during the third day; and $10,000 per hour thereafter. Shell contends that Greenpeace activists remained suspended from the bridge for seven hours in violation of the Contempt Order.¹ The district court has yet to enter a final order sanctioning Greenpeace.²

2. Shell Abandons Its Drilling Efforts

In September 2015, Shell announced that it would cease exploration in offshore Alaska for the foreseeable future. We issued an order to show cause why this appeal, and the underlying action, should not be dismissed as moot. In response, Shell argued that although the underlying litigation continued to present a case or controversy to the district court, this appeal would become moot upon the expiration of the preliminary injunction. Greenpeace disagreed and argued the inverse: that the pending preliminary Contempt Order rescued the appeal from mootness, but that Shell's actions had rendered the underlying litigation moot. The preliminary injunction expired on its own terms on November 1, 2015, and Shell did not seek to renew it.

II. DISCUSSION

"We have an independent obligation to consider mootness sua sponte. " Greenpeace II, 709 F.3d at 1286(quoting NASD Dispute Resolution, Inc. v. Judicial Council, 488 F.3d 1065, 1068 (9th Cir.2007)). "A case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)(quoting Cty. of L.A. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). When events change such that the appellate court can no longer grant "any effectual relief whatever to the prevailing party," any resulting opinion would be merely advisory. Id. (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)). In such a case, the appellate court lacks jurisdiction and must dismiss the appeal. SEIU v. Nat'l Union of Healthcare Workers, 598 F.3d 1061, 1068 (9th Cir.2010). We first address, as we must, the question of mootness before we can consider the substance of the parties' contentions. Greenpeace II, 709 F.3d at 1286.

A. The Preliminary Injunction

All of the issues on appeal derive from the district court's May 8 order granting Shell a preliminary injunction. Thus, our jurisdiction to hear this appeal hinges on whether the parties have a continued, legally cognizable interest in the validity of the injunction. The injunction expired on November 1, 2015, and Shell has not sought to renew it. As a result, the injunction no longer constrains Greenpeace, and it can no longer be enforced by Shell's motion. Because the only order on appeal has now expired, we are unable to grant any effectual relief to either party. This appeal is moot.³

Even though the preliminary injunction has expired and Shell has pulled out of the Arctic, Greenpeace argues that the still-pending contempt proceeding rescues its appeal from mootness. This argument is unavailing. Only compensatory contempt proceedings survive the termination of an underlying injunction. Here, as we explain below, the district court imposed only a coercive civil contempt sanction. Because the contempt proceeding at issue here is coercive, it cannot rescue the appeal from mootness.

1. The District Court Issued a Coercive Civil Contempt Order

A court's contempt powers are broadly divided into two categories: civil contempt and criminal contempt. "The difference between criminal and civil contempt is not always clear. The same conduct may result in citations for both civil and criminal contempt." United States v. Rylander, 714 F.2d 996, 1001 (9th Cir.1983)(citing United States v. UMWA, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947)). In distinguishing between criminal and civil contempt, we must look to the sanction's "character and purpose." Int'l Union, UMWA v. Bagwell, 512 U.S. 821, 827, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)....