9th Circuit Slams Judge for Sustaining Pirates
(CN) - Whaling opponents acted as pirates in attacking Japanese ships, and the trial judge who initially sided with them can no longer hear the case, the 9th Circuit ruled.
The scathing opinion filed late Monday reinforces a previous order barring the Sea Shepherd Conservation Society from coming within 500 yards of the vessels it protests.
Though the International Whaling Commission banned commercial whaling in 1982, the Japanese government gives the Institute of Cetacean Research permits to kill whales for scientific research.
In a 2011 complaint against the society and founder member Paul Watson, the Institute of Cetacean Research said that it needed an injunction to protect its crew and vessels from outraged activists.
Though U.S. District Judge Richard Jones denied a preliminary injunction and dismissed the piracy claims, the Japanese outfit found relief from the 9th Circuit in December 2012, which issued a temporary injunction that barred Sea Shepherd from coming within 500 yards of its vessels.
Reinforcing that order Monday, the three-judge panel concluded that Sea Shepherd had "without a doubt" engaged in piracy.
"You don't need a peg leg or an eye patch," Chief Judge Alex Kozinski wrote for the panel. "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."
Condemning the "erroneous interpretation" of piracy put forth by Judge Jones, Kozinski said that conventions define the practice as "illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship ... and directed ... on the high seas, against another ship . . . or against persons or property on board such ship."
Though Jones limited "private ends" to those pursued for "financial enrichment," he should have interpreted it more broadly as acts "not taken on behalf of a state," the appellate ruling says.
Belgian courts have previously found that environmental activism qualifies as a private end, according to the ruling.
"We conclude that 'private ends' include those pursued on personal, moral or philosophical grounds, such as Sea Shepherd's professed environmental goals," Kozinski wrote. "That the perpetrators believe themselves to be serving the public good does not render their ends public."
The ruling also called the lower court's interpretation of violence "equally off-base."
"Citing no precedent, it held that Sea Shepherd's conduct is not violent because it targets ships and equipment rather than people," Kozinski wrote.
He added that "ramming ships, fouling propellers and hurling fiery and acid-filled projectiles easily qualify as violent activities, even if they could somehow be directed only at inanimate objects."
"Regardless, Sea Shepherd's acts fit even the district court's constricted definition," the ruling continues. "The projectiles directly endanger Cetacean's crew, as the district court itself recognized. And damaging Cetacean's ships could cause them to sink or become stranded in glacier-filled, Antarctic waters, jeopardizing the safety of the crew.
"The activities that Cetacean alleges Sea Shepherd has engaged in are clear instances of violent acts for private ends, the very embodiment of piracy. The district court erred in dismissing Cetacean's piracy claims."
Kozinski said Jones abused his discretion by failing to issue a preliminary injunction and wrongly concluded that Sea Shepherd was unlikely to disable any Cetacean ships in the future since had not done so to date.
The activists tried, "at the very least," to foul the ships' props, but weren't successful, according to the ruling.
An injunction was also warranted since Cetacean showed likelihood of irreparable harm, the panel concluded.
"Cetacean's uncontradicted evidence is that Sea Shepherd's tactics could immobilize Cetacean's ships in treacherous Antarctic waters, and this is confirmed by common sense: A dangerous act, if committed often enough, will inevitably lead to harm, which could easily be irreparable," Kozinski wrote.
In refusing to enter an injunction, the District Court also "considered the interest in keeping U.S. courts out of the international political controversy surrounding whaling," the ruling says.
"But enjoining piracy sends no message about whaling; it sends the message that we will not tolerate piracy," Kozinski wrote.
The lower court wrongly rejected the whalers' claims on international comity grounds when deferred to an Australian judgment that addressed the legality of The Institute of Cetacean Research's activities, according to the ruling. An Australian court has enjoined the whalers from operating in Antarctic coastal waters, but the United States doesn't recognize Australia's claims of sovereignty over Antarctic waters.
"Whatever the status of Cetacean's whaling under Australian law, it gives Sea Shepherd no license to engage in piracy," the opinion states. "It is for Australia, not Sea Shepherd, to police Australia's court orders."
This also invalidates the lower court's "unclean hands" argument because the lack of jurisdiction means the whalers don't have to respect an Australian judgment, the court found.
Those "numerous, serious and obvious errors" in the Jones ruling raised doubts as to his perceived impartiality, according to the ruling.
The appellate panel ordered the case transferred to another judge drawn at random from the Western District of Washington.
A trial later this year will determine whether Sea Shepherd should face an asset freeze under the International Convention for the Suppression of the Financing of Terrorism.
Meanwhile, earlier this month, Sea Shepherd accused Cetacean Research of having rammed its charter boat, cutting it in two, and then attacking them with water cannons. That claim is pending in Portland federal court.