SEATTLE (CN) - Greenpeace activists cannot blockade or interfere with Shell's Arctic oil drilling vessels, the 9th Circuit ruled, affirming an injunction that sets a "safety zone" for the ships.
Shell sued Greenpeace in 2012, asking for an exclusion zone to protect its ships and crew from harassment.
U.S. District Judge Sharon Gleason in Anchorage, Alaska, granted an injunction, finding that Shell would suffer irreparable harm "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."
In appealing the decision, Greenpeace USA said Shell had served the wrong Greenpeace entity and its group did not take part in any prior attacks on the oil company.
A divided three-judge panel of the 9th Circuit concluded late Tuesday that Shell operates legally and should be able to conduct oil exploration "without dangerous interference" from the activists.
An injunction is proper "in light of the serious risk to human life and property," according to the ruling.
"The safety zones do not prevent Greenpeace USA from communicating with its target audience because, as the district court observed, Greenpeace USA has no audience at sea," Judge A. Wallace Tashima wrote for the Seattle-based majority.
Even though Greenpeace had conceded that its activists previously attacked a Shell tanker, Tashima said "Shell does not need to show past injury by Greenpeace USA to establish standing or to succeed on the merits."
"And, although the record does not make clear which Greenpeace entity was directly responsible for multiple attacks on Cairn Energy vessels in the Arctic Ocean, 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,'" Tashima added.
In a partial dissent, Judge Milan Smith took issue with the idea that "Shell may impute the actions of other independent Greenpeace entities to Greenpeace USA."
Smith said the Greenpeace USA is "unquestionably entitled to lawfully protest Shell's drilling activities" but the real issue was whether Shell had shown that the activists were likely to take "imminent unlawful action" unless they were enjoined.
"Relying heavily on evidence of previous unlawful encounters between 'Greenpeace activists' and Shell, such as the boarding of the Noble Discoverer in New Zealand and the boarding of the Nordica and Fennica in Finland, the majority concludes that Shell has met its burden," Smith wrote. "The majority's reliance on these acts is troubling, however, because even the majority admits that Greenpeace USA played no part in these events."
Smith called it erroneous for the majority to find that the legal relationship between the various Greenpeace entities had no bearing on the appeal.
"The majority does not adequately explain why this case should be decided any differently, and absent such justification, I cannot endorse its permissive and pernicious new rule," he wrote.
Shell's failure to sue the proper party is ultimately hypocritical, according to the dissent.
"Certainly Shell understands these principles well - its own corporate disclosure statement takes up nearly a full page of its answering brief, listing all of the subsidiaries and entities Shell admittedly relies on to limit its own liability," he wrote. "Yet when it comes to Greenpeace USA, what is sauce for the goose is apparently not sauce for the gander."
He also said that "mere endorsement of criminal conduct cannot support an injunction."
"Put simply, the majority claims that Greenpeace USA can be enjoined, at least in part, because Greenpeace USA wrote favorably about the unlawful activities of groups like Greenpeace New Zealand, and described those groups' activists as 'our activists,'" Smith added. "Again, I disagree."