(CN) – A federal judge refused to dismiss Shell Offshore’s lawsuit accusing Greenpeace protestors of illegally boarding its Alaska-bound oil rig on the high seas.
The protestors, including lone U.S. citizen Aliya Field, used inflatable boats launched from the Greenpeace ship Esperanza to chase down and scale Shell’s transport vessel the Blue Marlin, and chaining themselves to the oil rig Polar Pioneer.
They boarded the ship on April 5 to protest Shell’s Arctic exploration drilling this summer in the Chukchi Sea about 75 miles northwest of Alaska.
Shell sought immediate intervention, asking the Anchorage Federal Court for an injunction ordering the protestors to leave the Blue Marlin and Polar Pioneer, and establishing “safety zones” around all of Shell’s vessels, to be enforced throughout the summer.
The protestors abandoned the rig on May 11, leaving as they arrived, on inflatable boats that took them back to the Esperanza.
Shell also sought damages for Greenpeace’s “tortious and unlawful antics,” which it called “willfully and grossly negligent, and demonstrate a callous disregard for the rights of others,” in Shell’s April 7 complaint.
Greenpeace USA sought dismissal on May 4 for lack of jurisdiction. It claimed that “the actions of other Greenpeace entities cannot legally be attributed to Greenpeace USA,” and that, “the high seas, as well as U.S. territorial waters, are a public forum under First Amendment law.”
In its May 8 opposition, Shell cited Greenpeace’s “direct action” tactics, which it called a “core value” Greenpeace’s network of organizations, and said the group has specifically targeted Shell in the past and present.
“In 2012, this court addressed the scope of its subject matter jurisdiction over ‘alleged future tortious conduct by Greenpeace USA,’ and found multiple grounds for asserting such jurisdiction,” Shell wrote in its 39-page opposition.
That motion concluded: “Shell has demonstrated that Greenpeace USA already has committed, and intends to commit, torts to impede, delay and, if possible, stop Shell’s 2015 Arctic drilling program. Pursuant to well-established law, this court has jurisdiction over Greenpeace USA and those acting in concert with it. There is also no reasonable dispute that civil remedies are available for actual and threatened torts engaged in by one U.S. company against another U.S. company.”
Greenpeace said in its motion for dismissal that “even if there is subject matter jurisdiction within the United States’ exclusive economic zone and within the nation’s land and territorial waters, the court lacks subject jurisdiction over extraterritorial events between foreign-flagged vessels on the high seas.”
Shell argued that it is not asking the court to exercise jurisdiction over foreign-flagged ships, but to exercise jurisdiction over U.S. corporations and to confer subject matter jurisdiction over Greenpeace for “act[s] of piracy” on the high seas.
Piracy, under U.S law, is an exception to the “presumption against extraterritorial application of Acts of Congress,” according to U.S. District Judge Sharon Gleason, who rejected Greenpeace’s motion for dismissal.
Gleason found that “the presumption against extraterritoriality should not apply to Shell’s claims against Greenpeace USA on the high seas. The court finds that the alleged conduct in the complaint, even if it is not piracy, is sufficiently akin to piracy so as to fall within that exception to the presumption against extraterritoriality, particularly when the extraterritorial scope of the court’s jurisdiction is extended only to the high seas.”
She added: “In making this determination, the court has considered that the parties are all U.S. corporations and that the threatened conduct that forms the basis of the complaint relates directly to the development of the OCS (Outer Continental Shelf) resources within the U.S. territory.
“As such, on these alleged facts, the court finds that the claims touch and concern the territory of the U.S. with sufficient force so as to displace the presumption against extraterritorial application.”
Gleason also rejected Greenpeace’s assertion that Shell’s common law maritime claims are trumped by the Ports and Waterways Safety Act and the Outer Continental Shelf Lands Act, which authorize the Coast Guard to declare safety zones and prevent subsequent trespassing.
“It is the relevant statutes, and not the Coast Guard’s subsequent safety and security zone regulations, that are the focus of the displacement analysis,” Gleason wrote. “A review of the PWSA and the OCSLA indicate that they do not speak directly to the question at issue here – the establishment of safety and security zones around private vessels.”
Gleason upheld Shell’s claims of trespass, interference with navigation, private nuisance and civil conspiracy.
Greenpeace and Shell could not be reached for comment after hours Tuesday.
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