Institute of Cetacean Research v. Sea Shepherd Conservation Society, No. 11-cv-2043 (W.D. Wash. Dec. 20, 2015)

Plaintiffs perform lethal whaling with special permits issued by the government of Japan for scientific research.  Defendants are environmentalists who have, over the years, used tactics such as throwing bottles of butyric acid and ship ramming to impede Plaintiffs’ hunting.  Following Plaintiffs’ year-long hiatus from whaling, both Plaintiffs and Defendants sought permanent injunctive relief prior to Plaintiffs’ anticipated recommencement of whaling.  Each party alleged that the other had violated international law against perpetrating and funding piracy and unsafe navigation.  Additionally, Defendants sought to enjoin Plaintiffs’ whaling as either an international law violation or as piracy.

Defendants sought summary judgment on the pleadings as to all of Plaintiffs’ claims.  They argued that the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum narrowed the scope of the Alien Tort Statute (“ATS”), placing Plaintiffs’ claims for freedom from piracy and freedom of safe navigation outside of the court’s subject matter jurisdiction.  The district court found that the Ninth Circuit had addressed Kiobel during contempt proceedings in the case, and had intended for its analysis of Kiobel to be followed by the district court. 

The district court further found that the Ninth Circuit had accurately analyzed the scope of the post-Kiobel ATS.  The Supreme Court in Kiobel specifically used piracy on the high seas as an example of a cause of action for which the ATS extended jurisdiction extraterritorially, despite the ATS’s presumption against extraterritoriality.  Therefore, the court reasoned that it had jurisdiction over the ATS claims for piracy, even if the Ninth Circuit did not intend its Kiobel discussion to be binding.

Defendants also argued that Plaintiffs’ safe navigation claim was insufficiently specific, universal, and obligatory to qualify as an enforceable international norm under which the ATS allows federal courts to hear claims.  The court found that, again, Defendants were attempting to relitigate issues that had been determined earlier in the proceedings.  The Ninth Circuit had already analyzed international law and determined that Plaintiffs had a likelihood of success on the merits with regard to this claim—thus confirming that it found the claim legally cognizable.

Additionally, Defendants sought to dismiss Plaintiffs’ claims for funding piracy and unsafe navigation.  Plaintiffs justified these claims under the Financing Convention, which they argued included two norms qualifying as customary international law under the ATS.  Section 1(a) of the Financing Convention states that it is an offense to fund an act that is an offense within the scope of the treaties listed in its annex.  Section 1(b) makes it an offense to fund “[a]ny other act intended to cause death or serious bodily injury to a civilian… when the purpose of such act… is… to compel a government or an international organization to do or to abstain from doing any act.”

Plaintiffs argued that Defendants violated those norms by: (1) financing entities with the intent that their assets be used to commit piracy and unsafe navigation; and (2) doing so in order to force the government of Japan to cease authorizing whale research.  The court found that the similarity between funding and perpetrating piracy and unsafe navigation led to the conclusion that the international norm against financing piracy and unsafe navigation was sufficiently specific, universal and obligatory to sustain a cause of action under the ATS.

The court refused, however, to find that Defendants’ funding of “terrorism,” with the intent to cause the government of Japan to cease its authorization of research whaling, was a violation of a specific, universal and obligatory international norm.  Granting Defendants’ motion for judgment on the pleadings with regard to this claim, the court conceded that the nations of the world are divisively split on the legitimacy of terrorism, and that financing terrorism is thus not a cause of action cognizable under the ATS. 

Finally, the court considered Plaintiffs’ motion to dismiss Defendants’ counterclaims.  The court found that the ATS’s presumption against extraterritoriality resulted in a lack of subject matter jurisdiction over Defendants’ whaling counterclaim.  The court also rejected Defendants’ counterclaim that sought to characterize whaling as piracy, or “pirate whaling.”  The court noted that piracy requires acts committed “against another ship or aircraft, or against persons or property on board such ship or aircraft.”  The court rejected Defendants’ argument that piracy was “directed at” them because they had sought to protect the whales, noting how greatly such an interpretation would stretch the definition of piracy.