9th Circuit Won’t Rehear|Greenpeace Injunction

(CN) - The full 9th Circuit on Wednesday declined to revisit a March order barring Greenpeace activists from interfering with Shell's Arctic oil drilling ships.

The March ruling by a three-judge panel upheld a preliminary order establishing a "safety zone" to protect the oil company's ships and crew from alleged harassment.

In issuing the injunction, a federal judge in Anchorage, Alaska, said Shell would suffer irreparable injury "if Greenpeace USA activists were to attempt actions similar to those undertaken by other Greenpeace activists in New Zealand, Finland, or off the coast of Greenland."

But Greenpeace USA argued that Shell had "absolutely" served the wrong Greenpeace entity, as the U.S. subsidiary did not participate in prior boardings.

Shell attorney Jeff Leppo said the record showed that Greenpeace USA had engaged in past actions in Alaska, including placing activists in the way of moving oil machinery.

Writing for the panel, Judge A. Wallace Tashima acknowledged that it wasn't clear which Greenpeace entity was directly responsible for multiple attacks on Cairn Energy vessels in the Arctic Ocean. However, he said it didn't matter, because Greenpeace USA's executive director "essentially took credit for it, describing the perpetrators as 'our activists' and boasting that as a result of this direct action, 'Cairn didn't find oil in 2010.'"

Dissenting Judge Milan Smith called the majority's reliance on boardings in New Zealand and Finland "troubling," because "even the majority admits that Greenpeace USA played no part in these events."

Judge Ronald Gould echoed Smith's views in a dissent from the full court's refusal this week to rehear the case.

"The majority opinion upholds a preliminary injunction against Greenpeace USA based in significant part on acts committed by legally separate Greenpeace entities," Gould wrote. "In doing so, the decision disregards corporate norms of limited liability and relies on a guilt-by-association model that offends justice."

Gould later added: "I would prefer to see our opinions give organizations like Greenpeace USA the breathing space to let their fortunes rise or fall based on their conduct, not on their association with others and not on their free speech endorsement of others. I regret that we take another course that is contrary to what is or should be our law."

Judges Harry Pregerson, Stephen Reinhardt, Kim Wardlaw, William Fletcher and Milan Smith joined him in dissent.

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