Tuesday, May 28, 2013
May 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35266. Appealed from the United States District Court for the Western District of Washington. This case which was decided in a 2-1 opinion on February 25, 2013 [See WIMS 2/27/13] is amended and the majority also denies Paul Watson's petition for rehearing en banc of the majority's April 1, 2013, order denying him leave to file a late supplemental petition for rehearing en banc.
In the original decision, the majority panel reversed the district court's orders denying a preliminary injunction and dismissing certain claims in an action under the Alien Tort Statute brought against environmental activists by Japanese researchers who hunt whales in the Southern Ocean pursuant to a permit issued under the International Convention for the Regulation of Whaling, art. VIII. The majority panel held that the district court abused its discretion in deferring to the judgment of an Australian court because the United States does not recognize Australia's claims of sovereignty over Antarctic waters. In addition, the unclean hands doctrine did not apply. The panel remanded the case with instructions that it be transferred to another district judge. The, concurring in part and dissenting in part, Justice concurred in both the reasoning and the judgment of the panel opinion, but dissented from the majority's decision to reassign the case to a different district judge.
In their amendment, the majority adds, "Panels have broad discretion to reassign cases on remand when they feel justice or its appearance requires it. See United States v. Quach, 302 F.3d 1096, 110304 (9th Cir. 2002). The district judge has expressed strong and erroneous views on the merits of this high profile case. Without ourselves reaching any determination as to his ability to proceed impartially or impugning his integrity, to preserve the appearance of justice, we conclude reassignment is appropriate."
Also, in denying Watson's petition, the majority said, "We are unpersuaded by Watson's belated claim that he and co-defendant-appellee Sea Shepherd developed 'divergent interests.' Watson had months to consider whether his interests diverge from Sea Shepherd's, yet claims to have discovered only recently that they do. He does not explain how or why. His bald assurance that 'serious grounds exist' is too little, too late. No further petitions for panel rehearing or rehearing en banc may be filed."
Access the amended opinion (click here). [#Wildlife, #CA9]
Posted by JPMcJ at 4:23 PM