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Institute of Cetacean Research v. Sea Shepherd Conservation Society

United States Court of Appeals, Ninth Circuit

December 19, 2014

INSTITUTE OF CETACEAN RESEARCH, a Japanese research foundation; KYODO SENPAKU KAISHA, LTD., a Japanese corporation; TOMOYUKI OGAWA, an individual; TOSHIYUKI MIURA, an individual, Plaintiffs - Appellants,
v.
SEA SHEPHERD CONSERVATION SOCIETY, an Oregon nonprofit corporation; PAUL WATSON, an individual, Defendants - Appellees

Argued and Submitted, Pasadena, California: October 27, 2014.

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On a Motion for Contempt. D.C. No. 2:11-cv-02043-RAJ.

John F. Neupert (argued), M. Christie Helmer, James L. Phillips, Sharae M. Wheeler, Miller Nash LLP, Portland, Oregon, for Plaintiffs.

Daniel P. Harris, Charles P. Moure, Rebecca Millican, Harris & Moure, PLLC, Seattle, Washington, for Defendant Sea Shepherd Conservation Society.

Timothy G. Leyh (argued), Michelle Buhler, Charles S. Jordan, Calfo Harrigan Leyh & Eakes, LLP, Seattle, Washington, for Defendant Paul Watson.

David F. Taylor (argued), Kathleen M. O'Sullivan, Zachary P. Jones, Perkins Coie, Seattle, Washington, for non-party respondents Lani Blazier, Marnie Gaede, Bob Talbot, Robert Wintner, and Ben Zuckerman.

Clare Loebs Davis, Katie Smith Matison, Lane Powell PC, Seattle, Washington, for non-party respondent Susan Hartland.

Kristina S. Bennard, Julia D. Woog, Yarmuth Wilsdon PLLC, Seattle, Washington, for non-party respondent Peter Rieman.

Before: ALEX KOZINSKI, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges. Opinion by Judge Milan D. Smith, Jr.

OPINION

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M. SMITH, Circuit Judge:

Institute of Cetacean Research (Cetacean), Kyodo Senpaku Kaisha, Ltd., Tomoyuki Ogawa, and Toshiyuki Miura (collectively, Plaintiffs) filed this contempt proceeding against Sea Shepherd Conservation Society (Sea Shepherd U.S.), its founder Paul Watson, its administrative director Susan Hartland, and six volunteer members of the Sea Shepherd U.S. board (collectively, Defendants). The Plaintiffs allege that the Defendants violated our injunction prohibiting Sea Shepherd US, Watson, and " any party acting in concert with them" from physically attacking or coming within 500 yards of the Plaintiffs' whaling and fueling vessels on the open sea.

After we handed down our injunction, the Defendants adopted what they called the " separation strategy." Pursuant to the strategy, they ceded control of the Operation Zero Tolerance (OZT) campaign, designed to thwart the Plaintiffs' whaling activities in the Southern Ocean, to foreign Sea Shepherd entities. The Defendants knew those entities would use assets transferred to them by the Defendants in the OZT campaign, and that there was a " very high risk" the entities would violate our injunction. It is undisputed that these foreign entities repeatedly committed acts against the Plaintiffs' whaling ships during the OZT campaign that would have violated the injunction if performed by the Defendants.

In this opinion, we consider whether the Defendants violated our injunction when they implemented the " separation strategy." The Plaintiffs contend that the strategy was aimed at evading our injunction and ensuring that the OZT campaign proceeded unabated, despite the issuance of the injunction. In support of their contention, the Plaintiffs point to undisputed evidence that the Defendants provided substantial assistance to the OZT campaign after our injunction issued. The Defendants contend, on various grounds, that they should not be held liable for the acts of entities they did not control and whose violations they could not prevent.

Our thorough review of the record in this case, and the concessions of counsel at oral argument, compel us to hold Sea Shepherd US, Watson, and Sea Shepherd US's volunteer board members in contempt for violating our injunction.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Cetacean is a Japanese research foundation that has for many years received permits from the Japanese government authorizing it to take whales for research purposes. The International Convention for the Regulation of Whaling, to which the United States, Japan, and 87 other nations are signatories, authorizes whale hunting when conducted in compliance with a research permit issued by a signatory. See Int'l Conv. for the Regulation of Whaling, art. VIII, § 1, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74. Japan issued such a permit to Cetacean that authorized it to take whales in the Southern Ocean during the period December 20, 2012 to March 31, 2013.

For several years, Sea Shepherd U.S. and its founder, Watson, have opposed Cetacean's whale hunting efforts in the Southern Ocean. Sea Shepherd U.S. is organized as an Oregon nonprofit corporation with tax-exempt status under section 501(c)(3) of the Internal Revenue Code. It is governed by an unpaid board of volunteer directors. Several current and former directors of the organization are respondents in this contempt proceeding.

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In addition to Sea Shepherd US, there exist a number of foreign Sea Shepherd entities, including those organized and governed under the laws of Australia, Belgium, France, Germany, the Netherlands, and the United Kingdom. We sometimes refer to Sea Shepherd U.S. and the other Sea Shepherd entities collectively as " Sea Shepherd."

Since 2004, Sea Shepherd has mounted a yearly campaign to prevent Cetacean from killing whales in the Southern Ocean. Sea Shepherd's tactics have included throwing smoke bombs and glass containers of acid at the Plaintiffs' vessels; dragging metal-reinforced ropes in the water to damage the vessels' propellers and rudders; throwing safety flares with metal hooks at nets hung from the Plaintiffs' vessels in the hope that they will set fire to the vessels; and shining high-powered lasers at the Plaintiffs' vessels to annoy the crew. See Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 860 F.Supp.2d 1216, 1223-24 (W.D. Wash. 2012), rev'd, 725 F.3d 940 (9th Cir. 2013). Sea Shepherd has piloted its vessels in ways that make collisions with the Plaintiffs' vessels highly likely; in fact, collisions have occurred on several occasions. Id. Hoping to prevent Sea Shepherd's dangerous interference with its whaling activities, the Plaintiffs brought an action for injunctive relief in the United States District Court for the Western District of Washington. After the district court denied their request for a preliminary injunction, 860 F.Supp.2d 1216, rev'd, 725 F.3d 940, the Plaintiffs appealed. We reversed. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 725 F.3d 940 (9th Cir. 2013).

We issued an injunction pending appeal against Sea Shepherd U.S. and Watson on December 17, 2012. The injunction provided in relevant part:

Defendants Sea Shepherd Conservation Society and Paul Watson, and any party acting in concert with them (collectively " defendants" ), are enjoined from physically attacking any vessel engaged by Plaintiffs the Institute of Cetacean Research, Kyodo Senpaku Kaisha, Ltd., Tomoyuki Ogawa or Toshiyuki Miura in the Southern Ocean or any person on any such vessel (collectively " plaintiffs" ), or from navigating in a manner that is likely to endanger the safe navigation of any such vessel. In no event shall defendants approach plaintiffs any closer than 500 yards when defendants are navigating on the open sea.

This injunction remains in effect pending further order of court. Inst. of Cetacean Research, 725 F.3d at 947.

At the time our injunction was handed down, Sea Shepherd U.S. was organizing and preparing in earnest for OZT, its ninth annual whale defense campaign against the Plaintiffs. Prior to the issuance of our injunction, Sea Shepherd US, as in previous years, had taken the lead administrative role in preparing for the campaign. It recruited both volunteer and paid crew, and outfitted and fueled four vessels for the campaign: the Bob Barker, Steve Irwin, Sam Simon, and Brigitte Bardot. Sea Shepherd U.S. had already spent over 2 million dollars on the campaign when our injunction issued.

Watson received a copy of our injunction on December 18, 2012, the day after it issued. At that time, Watson was in the Southern Ocean serving as campaign leader, just as he had in previous years. Over the next several days, Watson and other members of Sea Shepherd devised a plan that would come to be known as the " separation strategy." Pursuant to the strategy, Sea Shepherd U.S. would turn over control of OZT and transfer assets it owned to foreign Sea Shepherd entities,

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including Sea Shepherd Australia. Sea Shepherd Australia is an Australian public company limited by guarantee and registered under the laws of Australia. For each of the previous whale defense campaigns, Sea Shepherd Australia has provided an operations base for the four vessels as well as logistical support. Watson was a member of the boards of both Sea Shepherd U.S. and Sea Shepherd Australia when the injunction issued. As part of the separation strategy, Watson would step down from the boards of both entities, and a new OZT campaign leader would assume Watson's responsibilities. Watson, however, would remain on board the Steve Irwin as an " observer" during the campaign.

The members of Sea Shepherd US's board learned of the injunction by email on December 18, 2012. When the injunction was handed down, the board was composed of Watson, who was also the paid Executive Director of Sea Shepherd US, and volunteer members Lani Blazier, Marnie Gaede, Bob Talbot, Robert Wintner, Ben Zuckerman, and Peter Rieman, all of whom are respondents in this proceeding.

Gaede, the board's vice president, called a telephonic board meeting for December 20, 2012, during which Sea Shepherd US's attorneys discussed the significance of the injunction and advised the board members on how to respond. All of the board members were present, along with another respondent in this proceeding, Susan Hartland, Sea Shepherd US's Administrative Director. The board discussed the separation strategy and agreed to implement it. Shortly after the board meeting, members of Sea Shepherd U.S. and Sea Shepherd Australia began working together to facilitate the transfer of operational control of OZT to Sea Shepherd Australia. On December 22, 2012, Jeff Hansen, a board member of Sea Shepherd Australia, emailed Watson and Hartland regarding plans for Sea Shepherd Australia to " take over," and for Bob Brown, a former Australian senator and decorated environmentalist, to lead the campaign.

Watson chaired a telephonic board meeting of Sea Shepherd Australia on December 27, 2012, in which the board unanimously resolved to assume responsibility for running OZT. Thereafter, Watson submitted his resignation from the Sea Shepherd Australia board and Brown became a member. On December 31, 2012, the Sea Shepherd Australia board resolved that Brown and Hansen would be the new leaders of OZT.

Despite its plan to separate from OZT, Sea Shepherd US's financial support for the campaign did not end immediately after the injunction was issued. Sea Shepherd U.S. paid $163,405 in OZT-related expenses that were invoiced after the injunction was handed down. The majority of this money was spent to refuel the Steve Irwin and pay the credit card expenses of OZT ship captains.

On or about December 27, 2012, several of the Plaintiffs' whaling ships departed Japan for the Southern Ocean. Watson informed the Sea Shepherd U.S. board of this development by email on December 27, 2012. Watson's email stated: " All four Sea Shepherd ships and their crew will be ready to greet the Japanese whalers when they arrive. They intend to kill whales and Sea Shepherd's objective is to see that not a single whale is slain. . . . It appears that the hunt is on and we intend to hunt whalers."

On December 28, 2012, Watson formally resigned from his various roles in Sea Shepherd U.S. and as campaign leader for OZT, effective December 31, 2012. He surrendered command of the Steve Irwin to Siddharth Chakravarty, a citizen of India, but remained on board the ship.

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Other Sea Shepherd U.S. employees participating in OZT also tendered their resignations to the board. Although Sea Shepherd U.S. stopped paying independent contractors serving as captains and crew members of OZT, Watson helped arrange for the crew to be paid by foreign Sea Shepherd entities.

There is evidence that Watson was not a mere passive participant in OZT after he resigned his leadership positions. During the OZT campaign, Watson appeared by phone on a radio show in March of 2013. His answers to questions posed during the show indicate that he believed himself to be a participant in OZT, not just an observer. He said, for instance, " we're chasing the Japanese factory ship Nisshin Maru and keeping it from killing whales." When asked about the atmosphere aboard the ship, Watson said, " Oh, everybody's very upbeat on our ship because we've managed to make sure they don't kill many whales this year." (emphases added).

Watson was also consulted for guidance on how to proceed with certain aspects of the campaign. For instance, on December 28, 2012, Chakravarty emailed a New Zealand customs official seeking permission to anchor the Brigitte Bardot off the New Zealand coast. He learned that the ship would require a hull inspection. Peter Hammarstedt, the captain of the Bob Barker, emailed Chakravarty that " [t]his will have to be Paul's decision. Sid, please check with him and let us know ASAP." After being asked by email for his " decision," Watson replied " [y]es proceed with this option." Watson was consulted for advice about logistical aspects of the campaign on several other occasions after the injunction was issued.

In a December 30, 2012 meeting, the Sea Shepherd U.S. board accepted Watson's resignation and elected new board leadership consisting of Gaede as president, Wintner as vice president, Blazier as secretary, and Rieman as treasurer. The board formally voted to sever all financial and other forms of support to OZT in a series of emails exchanged between January 8 and 9, 2013. The board also voted to ratify a series of grants of property for no consideration to Sea Shepherd entities participating in OZT. Specifically, Sea Shepherd U.S. granted ownership of the Bob Barker to Sea Shepherd Netherlands, and gave equipment to both Sea Shepherd Australia and Sea Shepherd Netherlands. The vessel and the equipment Sea Shepherd U.S. granted had original purchase prices totaling over two million dollars.

On January 29, 2013, in violation of our injunction, the Brigitte Bardot approached within 20.25 yards of the Yushin Maru 3, one of the Plaintiffs' ships, while it was navigating on the open sea. Several additional violations of our injunction occurred on February 15, 17, 18, 19, 20, 24, 25, 27, and 28. Most violations involved incursions of the 500-yard safety perimeter established by the injunction, but collisions occurred on February 20 and 25 in the course of efforts by Sea Shepherd to prevent one of the Plaintiffs' ships from refueling. Watson was on board the Steve Irwin when these collisions occurred.

On February 11, 2013, the Plaintiffs filed a motion to find Sea Shepherd U.S. in contempt and asked us to appoint a special master to conduct contempt proceedings. The basis of the motion was the January 29 incident in which the Brigitte Bardot approached within 500 yards of one of the Plaintiffs' vessels. On February 21, 2013, we referred the contempt motion to the Appellate Commissioner. The Plaintiffs later amended their motion to allege additional acts of contempt, and to include Watson, the six volunteer directors, and Hartland as respondents to the contempt proceedings. The Appellate Commissioner

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held a contempt hearing in Seattle from October 28, 2013 to November 6, 2013. The parties stipulated that actions had occurred at sea that, if performed by enjoined parties, would violate our injunction, and testimony about those events was limited. The hearing focused on how Sea Shepherd US, Watson, the volunteer directors, and Hartland responded to our injunction, and their relationship to the persons and entities leading OZT after Sea Shepherd US's withdrawal from the campaign.

The Appellate Commissioner issued his Report and Recommendation on January 31, 2014. He recommended we find that none of the Defendants had committed an act of contempt, as he believed they had " adopted a 'separation' strategy and took reasonable steps to carry out that strategy in order to guarantee their own compliance with the injunction." The Commissioner determined that the Defendants had not directly ...


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