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No Favor for Whaling Opponents in 9th Cir.

LOS ANGELES (CN) - Activists who seized whaling ships and equipment in Australia should face sanctions for violating a court order, attorneys told the 9th Circuit.

Though whaling has been banned internationally since 1986, Japanese government research contracts allow the Institute of Cetacean Research to kill whales in the Southern Ocean surrounding Antarctica.

An organization called Sea Shepherd Conservation Society has embarked on anti-whaling campaigns against the institute for the last 10 years. That group's missions against the whalers are also the focus of the Animal Planet television series "Whale Wars."

The institute asked a federal judge in Seattle to enjoin Sea Shepherd and its founder Paul Watson back in 2011, claiming that the group had rammed its vessels, and launched acid-filled bottles and smoke bombs at Japanese crew.

Both parties have labeled the other as a pirate, but the 9th Circuit sided with the whalers on that point last year.

"You don't need a peg leg or an eye patch. 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," Chief Judge Alex Kozinski wrote at the time.

That ruling reinforced a December 2012 injunction barring Sea Shepherd and Watson from attacking the Japanese vessels or coming within 500 yards of them.

Watson and Sea Shepherd in turn folded their plans for a mission called Operation Zero Tolerance, and ceded control of four ships, crew and equipment to Sea Shepherd Australia, a separate entity, according to court records.

The whalers took Sea Shepherd to court again, however, this time claiming that the activists were in contempt for embarking on Operation Zero Tolerance after all.

In a Jan. 31 report and recommendation on the institute's contempt motion, appellate commissioner Peter Shaw urged the 9th Circuit to keep an open mind.

Finding it "clear" that Sea Shepherd Australia "would have taken charge of OZT [Operation Zero Tolerance] regardless of any action by Watson or anyone else with SSCS [Sea Shepherd Conservation Society]," Shaw said there was little Watson and his organization could have done to stop the activists from moving forward.

"There was strong public and legal support for whale defense in Australia and, once the SSAL [Sea Shepherd Australia] board received a legal opinion that this court's injunction did not bind SSAL, it was inevitable that SSAL would take over," Shaw added. "Watson could not have prevented that from occurring."

John Neupert, an attorney for the whalers, urged the 9th Circuit at a hearing Monday to ignore that finding.

The activists "made a calculated decision to evade the injunction by granting the ships to others," Neupert said. "If the purpose of the transfer was to evade the court's order, that is contempt."

But Sea Shepherd attorney David Taylor of Seattle firm Perkins Coie said that any attempt to put the brakes on Operation Zero Tolerance would have been "futile."

Chief Judge Kozinski was not buying that argument.

"They could have said, 'Stop, and what's more we're cutting off all credit cards, so you can't refuel,'" Kozinski said. "They could have said, 'You're going to be cut off from provisions.' Or they could have just said, 'We order you to port.' Or they could have said, 'You proceed, but you stay 500 yards away from the vessels.' They did none of those things. Instead, they handed them [the ships] over to somebody they knew would go ahead and proceed with operations as planned."

The court is also tasked with deciding whether Watson was in contempt because he had stayed on the Sea Shepherd vessel the "Steve Erwin" during the mission.

Watson's attorney Timothy Leyh with Seattle firm Calfo Harrigan Leyh & Eakes said that his client was worried about a Interpol red notice and the prospect of extradition to Japan from Australia or New Zealand.

Kozinski wondered why Watson was concerned about landing in Australia, a nation that was "highly supportive" of Sea Shepherd's anti-whaling activities.

"It's just one of those things where it sounds to me like he's telling us a fib," Kozinski said.

During rebuttal, Neupert echoed that sentiment. He said that Watson knew the chances of extradition were "remote."

"He remained on board even when it violated the injunction on three separate occasions," the attorney added.

Three Sea Shepherd ships were tied to dock after the 9th Circuit's injunction order, and they did not set sail until January 2013, Neupert said.

"If the Japanese had come aboard those ships and tried to take them, I'm sure the board of Sea Shepherd would have stopped the Japanese from taking the ships," the attorney added.

Judge Kozinski did not indicate when the panel will make a decision. Judge A. Wallace Tashima and Milan Smith rounded out the panel.

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