Sea Shepherd tries novel tack in appeal of piracy ruling

By Jeremy P. Jacobs | 05/07/2015 01:27 PM EDT

The anti-whaling group Sea Shepherd has asked the Supreme Court to weigh a federal appeals court decision that characterized the activists’ campaign on the open seas against whale-killing Japanese researchers as piracy.

The anti-whaling group Sea Shepherd has asked the Supreme Court to weigh a federal appeals court decision that characterized the activists’ campaign on the open seas against whale-killing Japanese researchers as piracy.

At issue is a long-running effort by the Japanese Institute of Cetacean Research to stop Sea Shepherd — which was featured in the Animal Planet reality show "Whale Wars" — from harassing its ships in the South Ocean Whale Sanctuary near Antarctica.

Sea Shepherd contends the institute is abusing permits issued by Japan that allows them to kill whales. They point to a March 2014 ruling from the International Court of Justice of the United Nations that ordered Japan to halt the permit program because the activities don’t qualify as scientific research.


A federal appeals judge in Seattle originally sided with Sea Shepherd, but the 9th U.S. Circuit Court of Appeals reversed that ruling in two opinions — one that granted an injunction and another that said the group violated it by coming within 500-yard perimeter of the institute’s ships.

In its petition to the Supreme Court, the group claims the San Francisco-based 9th Circuit extended its jurisdiction beyond its authority to activities in international waters.

"[T]his case is not about piracy," the group wrote. "It is about whether federal courts may create new law and enforce it extraterritorially, without authorization by Congress, and in defiance of the mandates of this Court."

Sea Shepherd goes on to outline a novel legal theory for an environmental group. The group claims that the 9th Circuit ruling contradicts the Supreme Court’s April 2013 ruling in Kiobel v. Royal Dutch Petroleum Co..

That case concerned human rights abuses allegedly funded by the Anglo-Dutch oil giant in Nigeria. The Supreme Court held that the Alien Tort Statute did not allow foreign nationals to file lawsuits in U.S. courts over alleged abuses by foreign countries that occurred abroad.

The ruling was widely regarded as shielding businesses from prosecution for conduct overseas, particularly human rights violations (Greenwire, April 17, 2013).

In a first for an environmental group, Sea Shepherd is seeking to extend the Kiobel doctrine to its conduct near Antarctica — a twist the group notes early in its Supreme Court appeal.

"Ironically, while the Ninth Circuit’s decision targets environmentalists, the precedent it establishes poses the greatest threat to corporations."

The group’s attorney elaborated on that point in a statement.

"Any business that operates internationally should be alarmed by the ruling at issue here," said Claire Davis of the Lane Powell firm. "This case isn’t specific to whaling, but instead raises fundamental questions about how aggressively U.S. courts can interfere in the foreign affairs of U.S. businesses."

‘You are, without a doubt, a pirate’

The case has a long and complicated history. The Japanese Institute sued Sea Shepherd in federal court in 2012, claiming the group — which is known for firing high-powered hoses and throwing smoke bombs at whalers — was harassing its ships.

A federal district court judge in Seattle sided with Sea Shepherd in March 2013. On appeal to the 9th Circuit, however, that ruling was reversed in an opinion by then-chief Judge Alex Kozinski that criticized the group.

"You don’t need a peg leg or an eye patch," Kozinski wrote. "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."

That ruling required Sea Shepherd to stay 500 yards away from the Japanese ships.

About a year later, the institute claimed Sea Shepherd had breached that perimeter. The 9th Circuit took the unusual step of appointing a commissioner to conduct a trial on the issue.

The commissioner sided with Sea Shepherd, but the 9th Circuit ignored the commissioner’s 80-page report and held Sea Shepherd in contempt. The ruling could put Sea Shepherd on the hook for millions of dollars in damages (Greenwire, Dec. 22, 2014).

Sea Shepherd is asking the Supreme Court to review both rulings.

The Supreme Court receives thousands of appeals every year and agrees to hear about 75. It takes the votes of four justices to grant review, and the court will likely consider whether to take up Sea Shepherd’s case next fall.

Click here for Sea Shepherd’s petition.