Wednesday, February 27, 2013

Institution Of Cetacean Research v. Sea Shepherd Conservation Society

Feb 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35266. In this case the Appeals Court decides to uphold a high seas piracy claim against an activist group objecting to the legitimate taking of whales for research.
    In an opening statement in this partially split decision, the majority states, "You don't need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be."
    The Appeals Court explains that Plaintiffs-Appellants (collectively, Cetacean) are Japanese researchers who hunt whales in the Southern Ocean. The United States, Japan and many other nations are signatories to the International Convention for the Regulation of Whaling which authorizes whale hunting when conducted in compliance with a research permit issued by a
signatory. Cetacean has such a permit from Japan. Nonetheless, it has been hounded on the high seas for years by a group calling itself the Sea Shepherd Conservation Society and its "eccentric founder," Paul Watson (collectively Sea Shepherd). Sea Shepherd's tactics include all of those listed above.
    Cetacean argues that Sea Shepherd's acts amount to piracy and violate international agreements regulating conduct on the high seas. The district court denied Cetacean's request for a preliminary injunction and dismissed its piracy claims. The majority Appeals Court determined it had jurisdiction over the order denying the injunction and also "have jurisdiction to review the dismissal of the piracy claims because the district court's reasoning for dismissing them is 'inextricably intertwined with' its reasons for denying the preliminary injunction." [citing Smith v. Arthur Andersen LLP, 421 F.3d 989, 998 (9th Cir. 2005)].
    In an interesting twist, an Australian court entered a default judgment against Cetacean, purporting to enjoin it from whaling in Antarctic coastal waters over which Australia claims sovereignty. The majority said, "The district court's deference to Australia's judgment in that case was an abuse of discretion. . . Whatever the status of Cetacean's whaling under Australian law, it gives Sea Shepherd no license to engage in piracy. It is for Australia, not Sea Shepherd, to police Australia's court orders."
    The majority also notes that, "Because neither the United States nor Japan recognizes Australia's jurisdiction over any portion of the Southern Ocean, Cetacean owes no respect to the Australian order." The majority opinion indicates, "The district court's orders denying Cetacean's preliminary injunction and dismissing its piracy claims are reversed. The preliminary injunction we issued on December 17, 2012, Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 702 F.3d 573 (9th Cir. 2012), will remain in effect until further order of this court. The district judge's numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington. The panel retains jurisdiction over any further appeals or writs involving this case."
    The dissenting Justice indicated in a partially dissenting opinion, "I concur in both the reasoning and the judgment of the panel opinion, reversing the district court's dismissal of Cetacean's piracy claims, and its failure to grant Cetacean a preliminary injunction. Even if one believes it is barbaric to harvest whales for any purpose at the beginning of the 21st century, as practiced by
Cetacean, it is clearly permitted under international law. . . However, I respectfully dissent from the majority's decision to reassign this case to a different district judge. . . I see no basis for reassigning this case. Our panel opinion is well-articulated, succinct, and absolutely clear as to what is required of the district judge on remand. . . The Sea Shepherds are pirates. Period. No district judge could fail to grasp the clarity and firmness of our opinion."
    Access the complete opinion (click here). Access the dissenting opinion (click here). [#Wildlife, #CA9]

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