SEATTLE--(BUSINESS WIRE)--Sea Shepherd Conservation Society, a U.S.-based 501(c)(3) non-profit
marine conservation organization, filed a petition yesterday asking the
U.S. Supreme Court to review an appellate decision holding it in
contempt of court based on the activities of foreign groups that opposed
illegal Japanese whale hunts. (The petition is available at: www.seashepherd.org/images/stories/news/2015/news-150428-1-SSCS_Petition_Certiorari_FINAL.PDF).
"Any business that operates internationally should be alarmed by the
ruling at issue here," said Claire Davis, a partner with Lane Powell,
the law firm representing Sea Shepherd at the Supreme Court. "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."
Sea Shepherd seeks review of a Ninth Circuit Court of Appeals decision,
finding that it violated an injunction to remain at least 500 yards away
from Japanese whaling vessels in the Southern Ocean Whale Sanctuary near
Antarctica. The Ninth Circuit asserted jurisdiction over Sea Shepherd
through the Alien Tort Statute, a federal statute intended to allow
foreign citizens to bring actions in U.S. courts for violations of a
small number of universally recognized international laws, usually
understood to include acts such as genocide and torture.
"The Alien Tort Statute is meant to apply in a very narrow set of
circumstances, which do not include environmental activism," said Davis.
"This decision authorizes U.S. courts to invent new international law
and apply it to the activity of all U.S. businesses abroad. It sets a
welcome mat in front of the U.S. courts for any plaintiffs' lawyer or
foreign actor wishing to attack a U.S. business, based on grudges
arising anywhere across the globe."
The legal dispute arises from Japan's long-running violation of the
International Whaling Commission's (IWC's) ban on commercial whaling.
Since the 1980s, Japan has granted Scientific Research Permits for
Japanese organizations to kill more than 1,000 whales in the Southern
Ocean Whale Sanctuary each year, including humpback whales and
endangered fin whales. Last year, the International Court of Justice
declared Japan's research rationale to be a sham, and said that its
whale hunts are in violation of international law. Sea Shepherd's
campaign to stop Japanese whale hunts has been documented in the
Emmy-nominated Animal Planet series "Whale Wars."
Japanese whaling has been the subject of consistent condemnation by the
U.S., foreign governments, IWC, and scores of environmental groups. When
Japan first began violating the moratorium against whaling, President
Ronald Reagan responded by ordering the Secretary of State to suspend
Japan's fishing privileges in U.S. waters.
Sea Shepherd's petition takes exception to two rulings by the Ninth
Circuit--its issuance of the original injunction, through which it
accuses Sea Shepherd of piracy under international law, and its finding
that Sea Shepherd violated that injunction. Both rulings reversed prior
decisions in favor of the conservation organization. In 2012, a federal
District Court in Washington state issued a 44-page opinion denying the
request for an injunction against Sea Shepherd by the Institute of
Cetacean Research, a Japanese whaling group; in 2014, after an eight-day
hearing, a special master recommended the Ninth Circuit find that none
of the defendants had violated the injunction.
Despite its disagreement with the injunction issued by the Ninth Circuit
in late 2012, Sea Shepherd complied, cutting all financial and
administrative ties to Operation Zero Tolerance, an anti-whaling
campaign scheduled for early 2013. Although the Ninth Circuit
acknowledged that Sea Shepherd had not violated any of the terms of the
injunction, it found the organization in contempt nonetheless, claiming
retroactively that the "spirit" of the injunction required Sea Shepherd
to control foreign entities.
Sea Shepherd's bid for review before the Supreme Court raises two legal
questions: (1) whether the Alien Tort Statute provides jurisdiction for
an injunction regulating otherwise legal behavior in international
waters, under a new norm of international law created by U.S. judges;
and (2) whether a federal court can use its contempt power to punish a
party for violating the spirit of an injunction, although it adhered to
its express terms.
"The Ninth Circuit held Sea Shepherd to be committing piracy under
international law, despite the fact that Sea Shepherd had been engaged
in a non-violent campaign to halt illegal whaling in an established
sanctuary. Then the court found Sea Shepherd to be in contempt, even
though it concedes Sea Shepherd had complied with the terms of the
injunction," said Davis. "But these rulings are not really about piracy
or whaling. They are about the ability of the federal courts to exercise
unrestrained power, without authority from Congress, over what the law
says, and how and where it can be enforced."
About Sea Shepherd Conservation Society:
Established in 1977, Sea Shepherd Conservation Society is a U.S.-based
non-profit marine conservation organization dedicated to defending,
conserving, and protecting marine wildlife and ocean ecosystems. By
safeguarding the biodiversity of our delicately balanced oceanic
ecosystems, Sea Shepherd works to ensure their survival for future
generations. Visit www.seashepherd.org
for more information.
The Supreme Court petition was filed as Sea Shepherd Conservation
Society v. The Institute of Cetacean Research et al. A fact sheet
with further information on Sea Shepherd and its involvement in this
litigation is available here: www.seashepherd.org/images/stories/news/2015/news-150429-1-SSCS_LP_Fact_Sheet.pdf.
Claire Davis is available to speak to the media about the case and its
implications for businesses.
http://www.businesswire.com/news/home/20150429005797/en/Sea-Shepherd-Conservation-Society-Takes-%E2%80%98Whale-Wars%E2%80%99
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