SEATTLE (CN) - The 9th Circuit showed no mercy at a hearing involving activists who launch high seas attacks on the Japanese whalers that allegedly invoke research to cloak their kills.
The Institute of Cetacean Research has permits from the Japanese government to kill whales for scientific research, but critics say the whales killed are used for food and that the research permits circumvent the International Whaling Commission's ban on commercial whaling.
For the last seven whaling seasons, which run from December through March, the Sea Shepherd Conservation Society has sent a fleet of boats to confront the whalers. Some of the Sea Shepherd's tactics include attempting to disable the whalers' propellers, throwing projectiles filled with paint or butyric acid at the ships, and intentionally piloting its ships to cause collisions with the whaling ships.
The Sea Shepherd's tactics have also been the subject of the "Whale Wars" television series on Animal Planet.
The Institute of Cetacean Research sued the Sea Shepherd and its founder Paul Watson in 2011, asking the court to prevent the environmentalists from attacking the crew or interfering with the navigation of whaling ships by imposing an 800-meter safety zone.
Claiming that Sea Shepherd engages in piracy and terrorism, the complaint also sought to freeze the group's assets under the International Convention for the Suppression of the Financing of Terrorism.
The terrorist claims will be heard at a trial in 2013, but U.S. District Judge Richard Jones denied a preliminary injunction after finding that the whalers claim were not likely to suffer irreparable harm. Jones said the Sea Shepherd has "hurt no one despite using essentially the same tactics for eight whaling seasons."
"Sea Shepherd's small boats presents no risk of injury to the whalers," he wrote in March. "The navigation of its large ships to collide with or come too close to the whaling ships presents a risk of injury, but there is nothing in the record from which the court could conclude that injury is likely as a result."
The order also said that public interest weighs against an injunction.
"The public interest no doubt favors the right of ships and their crew to travel freely on the open seas," Jones wrote. "But that interest is tempered by two countervailing interests: the preservation of marine life and the interest in avoiding judicial interference in international political controversies."
"If the court were to grant the whalers their injunction, more whales would die," he added. "This is not in the public interest."
The whalers argued before a three-judge appeals panel on Tuesday that the lower court "misapplied" the standard for evaluating the likelihood or irreparable harm.
John Neupert, representing the Institute of Cetacean Research, said it "wasn't logical" to find that collisions are "highly likely" yet still deny irreparable harm.
Approving an 800-meter "safety zone" would allow the Sea Shepherd to observe, film and protest whaling activities, but end the violence directed at the ships and crew, the Miller Nash attorney said.
"It's a simple case," Neupert said. "Violence should not be condoned."
Arguing that the whalers' actions are legal in international waters, Neupert compared his client's plight to the case to a woman prevented from entering an abortion clinic by protesters throwing rocks and bottles.
Sea Shepherd attorney Dan Harris faced a barrage of hostile questions from the judges, who at times raised their voices and talked over one another as they tried to pin down irreparable harm.
"Sinking a boat at sea, people could drown," Chief Judge Alex Kozinski said. "That sounds to me like likelihood of irreparable harm. Your clients are deliberately engaging in activities that put vessels and people on them in harm's way."
Kozinski asked Harris how he could conclude that harm, if it occurred, would not be irreparable.
Harris said the Sea Shepherd has never sunk a ship with anyone on it. Kozinski then asked if the environmentalists had rammed ships.
"The Sea Shephard has not rammed any ships belonging to the whalers," Harris said.
"Has it rammed ships?" Kozinski asked again.
Harris replied that he was unsure.
Judge Milan Smith noted that, "in this case clearly, repeatedly, there have been attempts to disable the ship."
Judge A. Wallace Tashima jumped in to ask: "Don't you think an attempt to foul a propeller is a dangerous activity?"
Harris said it was not dangerous because the whaling vessels are "state of the art" and had anti-prop-fouling devices.
Smith raised his voice in reply. "Are you representing to the court, as an officer of the court, that your clients have not repeatedly tried in the hope that they would be successful, to foul props?" he asked.
Harris answered: "No, because I don't know what the intent of my clients has been when they have employed prop fouling."
"Counsel, that is so disingenuous," Smith said.
Harris insisted there is no evidence that the Sea Shepherd had ever come close to fouling a prop. And he said that the environmentalists plan to make the next whaling season "safer than the last."
This statement infuriated Smith.
"Come on!" Smith said. "You mean to try to increase the likelihood of fouling the props -- that is an attempt to make it safer for everybody on board that ship?"
Kozinski interjected: "If they really wanted to make it safer they just wouldn't do it," while Smith chimed in: "Don't go at all."
Harris said: "What they're trying to do is stop whaling. They're certainly not trying to injure anyone."
But Smith had no patience for this argument.
"That's because they weren't successful," Smith said. "Not because you didn't try."
Kozinski ended the exchange by asking Harris about the piracy claim.
"Your clients have a view of life and they try to pursue that by damaging other people's property," Kozinski said. "I don't see how this doesn't meet the definition of piracy."
Harris said that universal standards define piracy as an act of theft or stealing.
The lawyer then cautioned the court against issuing an injunction.
"If this court issues an injunction, it will be stepping into an international controversy," Harris said.
Tashima was not impressed. "Is that a reason to not exercise judicial bar?" he asked. "Because you might be stepping into a controversy?"
Harris replied: "It is when the executive branch has already expressed its views on this controversy and the most recent views from the executive branch are condemning whaling."
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