Ninth Circuit Issues Preliminary Injunction Recognizing Activist Conservation Society as Pirates
Keefe, Ryan A., Suffolk Transnational Law Review
Institute of Cetacean Research v. Sea Shepherd Conservation Society, 708 F.3d 1099 (9th Cir. 2013).
The Sea Shepherd Conservation Society (Sea Shepherd) has garnered worldwide attention for its controversial methods of protecting whales and other marine wildlife, eliciting strong reactions from parties as disparate as Canadian Premiers and the South Park television show. (1) None of Sea Shepherd's conflicts have caused more disputes about the role of international law, piracy, and international treaties than its attacks against the Institute of Cetacean Research (Institute), a collection of Japanese scientific researchers whose hunting methods ultimately kill whales. (2) In Institute of Cetacean Research v. Sea Shepherd Conservation Society, (3) the United States Court of Appeals for the Ninth Circuit granted the Institute a preliminary injunction against Sea Shepherd, and its efforts to stop internationally authorized whaling. (4) The Ninth Circuit concluded that the District Court's denial of the preliminary injunction was a culmination of serious errors, primarily, its determination that Sea Shepherd's acts did not constitute piracy. (5)
In 1986, the International Whaling Commission (IWC) established a moratorium on commercial whaling. (6) Article VIII of the International Convention for Regulation of Whaling (Whaling Convention) allows "countries to engage in whaling for the purposes of scientific research." (7) In 1999, Australia laid claim to a region of the Southern Ocean which it called the Australian Whale Sanctuary (AWS) in an effort to give itself jurisdiction over the Japanese whalers who hunted in that region. (8) Australia's Federal Court issued a permanent injunction against the Japanese whalers but "neither Australia's courts nor other arms of its government have attempted to enforce the injunction." (9) Accordingly, Japanese whalers hunt humpback whales, sei whales, fin whales, and sperm whales, and some of this hunting has occurred in the off-limits AWS. (10)
The Institute is a fleet of Japanese whaling vessels that, for the last twenty years, has received a research permit from the Japanese government to capture and kill whales in the Southern Ocean. (11) Since the 2005-2006 whaling season, Sea Shepherd "has used a small fleet of ships (under Paul Watson's) command to stymie [the Institute's] whaling in the Southern Ocean." (12) The Japanese-flagged whaling fleet consists of three small ships for pursuing whales, one larger ship to hold the whale carcasses, and another large ship that is dedicated solely to offsetting Sea Shepherd's disruption efforts. (13) Sea Shepherd uses two Dutch-flagged fleet vessels that are smaller than the Japanese pursuit ships, and an Australian-flagged ship that is even smaller than the Dutch vessels. (14)
Sea Shepherd has engaged in numerous activities in the Southern Ocean in order to disrupt and ultimately stop the Institute from whaling. (15) Thus far, the it has thrown glass bottles containing paint or butyric acid, launched safety flares with metal hooks, thrown smoke bombs, employed high powered lasers, dragged towing lines to destroy the rudder or propeller of the ships, and intentionally piloted ships to collide with the whaling ships. (16) The Institute has deployed countermeasures such as bamboo poles, long-range acoustic devices, concussion grenades, and grappling hooks to fend off Sea Shepherd. (17) Neither party produced significant evidence of being harmed by these actions, although the whalers have videotaped ship collisions on three separate occasions. (18) The Institute sought injunctive and declaratory relief from the United States District Court for the Western District of Washington on four grounds: Alien Tort Statute (ATS) piracy claims; ATS safe navigation claims; admiralty claims; and civil conspiracy. (19) The Ninth Circuit held that the District Court had erroneously failed to issue the preliminary injunction against Sea Shepherd, and wrongfully dismissed the Institute's ATS piracy claims. …