Criminal Law Sea Shepherd whale activists called pirates, lose ruling by 9th Circuit judges

Published on March 4th, 2013 | by Daniel R. Perlman

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Sea Shepherd whale activists called pirates, lose ruling by 9th Circuit judges

A federal appeals court panel has branded the anti-whaling group Sea Shepherds “pirates,” ordering a halt to attacks on Japanese whalers in Antarctic waters.

The outspoken opinion, which reads at times more like “Moby Dick” than a court decision, hands a victory to Miller Nash, a Portland law firm that took the controversial step of representing Japan’s whale hunters.

The 9th Circuit U.S. Court of Appeals opinion issued late Monday is also unusual for ordering the transfer of a lower-court judge from the case, finding that U.S. District Judge Richard A. Jones made “numerous, serious and obvious errors” in the ruling that generated the appeal.

The majority opinion of the three-judge panel continues an earlier injunction ordering Sea Shepherd Conservation Society activists to stay at least 500 yards away from Japanese whaling ships.

The opinion is a blow to Sea Shepherd, registered in Oregon and based in Friday Harbor, Wash., known for combating whaling on the high seas. It’s a win in a continuing legal battle waged by the plaintiffs, which are led by the Institute of Cetacean Research, a Japanese foundation that cites a scientific-research exception to an international whaling ban.

But the opinion isn’t shutting down Sea Shepherd, which continued clashes this week off Antarctica, claiming whalers rammed one of its vessels and deployed stun grenades and a water cannon.

Scott West, a Sea Shepherd spokesman, said that to comply with the appeals court’s earlier injunction, the U.S. organization has separated itself from Sea Shepherd Australia, which is now operating the anti-whaling campaign.

That argument doesn’t wash with the Cetacean Institute, which filed suit in 2011 against Sea Shepherd and its president, Paul Watson, whom the judges’ opinion describes as eccentric.

Gavin Carter, an institute spokesman in Washington, D.C., noted that Sea Shepherd split its branches after the panel of judges issued a preliminary injunction Dec. 17.

The appeals court judges said their opinion should be taken not as an endorsement of whaling but as a signal that “violent vigilantism by U.S. nationals in international waters” is not condoned.

Judge Jones, a former prosecutor who is a half brother of musician Quincy Jones, has been presiding in Seattle in the case.

The Cetacean Institute appealed Jones’ decisions to dismiss its piracy claims and to deny the foundation’s request for an injunction against Sea Shepherd. Miller Nash lawyer John Neupert presented arguments in October, supported by his law partner, Chris Helmer.

In the latest opinion, Kozinski wrote that Jones erred in dismissing the piracy claims. “Damaging Cetacean’s ships could cause them to sink or become stranded in glacier-filled Antarctic waters,” he wrote, “jeopardizing the safety of the crew.”

Kozinski wrote in the majority opinion that the case, should be transferred to another district judge, drawn at random, as the case continues in the courts.

But another panel member, Circuit Judge Milan Smith,  dissented on that point, saying Jones would be able to put aside his previous views and follow the appeals court’s requirements.

“The Sea Shepherds are pirates. Period,” Smith wrote. “No district judge could fail to grasp the clarity and firmness of our opinion.”

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Source: The Oregonian “Sea Shepherd whale activists called pirates, lose ruling by 9th Circuit judges,” February 27, 2013.

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