Wednesday, February 27, 2013
Court Orders Injunction Against ‘Piracy’ by Anti-Whaling Group
By KENNETH OFGANG, Staff Writer
A Japanese foundation that holds a permit to hunt whales in the Southern Ocean is entitled to an injunction against an anti-whaling organization that has attacked its ships, the Ninth U.S. Circuit Court of Appeals has ruled.
“You don’t need a peg leg or an eye patch,” Chief Judge Alex 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.”
The appellate panel issued its own injunction in December, commanding Sea Shepherd Conservation Society and its founder, Canadian environmentalist Paul Watson, to keep their vessels 500 feet away from those of the Institute of Cetacean Research. In a ruling late Monday, it said that order—which the foundation has already accused Sea Shepherd of violating—will remain in effect pending further ruling of the court.
Abuse of Discretion
Kozinski said U.S. District Judge Richard A. Jones of the Western District of Washington abused his discretion when he denied the institute relief. The court also concluded that Jones had committed such “numerous, serious and obvious errors” that the remainder of the case should be heard by another judge.
The institute sued in the Western District, where Sea Shepherd is based, under the Alien Tort Statute. It argued that U.S. courts are bound by the International Convention for the Regulation of Whaling to recognize its Japanese permit and that the defendants’ tactics constitute “piracy” within the meaning of the United Nations Convention on the Law of the Sea and other treaties.
Jones ruled that the defendants weren’t pirates because they target property rather than individuals and engage in tactics that are primarily symbolic. Cetacean, he said, has suffered no real harm.
In addition, Jones said, the whalers have unclean hands because they have been taking whales in violation of an Australian court order, which was issued after Cetacean—which argues that Australia has no jurisdiction over Antarctic waters—defaulted.
Kozinski, however, called the district judge’s reasoning “off-base.” Both the treaties cited by the plaintiff and common sense, he said, suggest that “malicious acts against inanimate objects” constitute violence.
Danger to Human Life
Jones also ignored the very real danger to human life that harassment of whalers can cause, including “caus[ing] them to sink or become stranded in glacier-filled, Antarctic waters, jeopardizing the safety of the crew,” the chief judge wrote. “The activities that Cetacean alleges Sea Shepherd has engaged in are clear instances of violent acts for private ends, the very embodiment of piracy.”
The chief judge also rejected the unclean-hands defense.
“To begin, the district court misunderstood the Australian judgment, which addressed the legality of Cetacean’s activities, not Sea Shepherd’s,” he wrote. “Whatever the status of Cetacean’s whaling under Australian law, it gives Sea Shepherd no license to engage in piracy. It is for Australia, not Sea Shepherd, to police Australia’s court orders.”
Besides, he said, the institute “owes no respect to the Australian order” because neither Japan nor the United States recognizes Australian jurisdiction over any part of the Indian Ocean. By extending comity to the Australian court order, Kozinski said, the district judge was disrespecting the stated position of the United States government.
Dissent From Removal
Senior Judge A. Wallace Tashima concurred in the opinion. Judge Milan D. Smith Jr. concurred in the substantive ruling but dissented from the district judge’s removal from the case.
“We have previously reserved reassignment for only the most egregious cases,” Smith argued. “While the district judge clearly erred in finding for the Sea Shepherds, there is absolutely no evidence in this record to suggest that he did so for an improper purpose, such as bias or prejudice.”
Charles Moure, an attorney representing Sea Shepherd, told The Associated Press he would ask for en banc review of the ruling.
The case is Institute of Cetacean Research v. Sea Shepherd Conservation Society, 12- 35266.
Copyright 2013, Metropolitan News Company