Sea Shepherd and Captain Watson Take the Southern Ocean Fight Against the Japanese Whalers to the U.S. Courts

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Starting in 2005, Sea Shepherd and its founder Captain Paul Watson led seven successful campaigns to stop illegal whaling in the Southern Ocean near Antarctica, saving 3,572 whales from the Japanese harpoons. This success, and the notoriety that we brought to Japan’s illegal whaling with the help of the Animal Planet television show Whale Wars, brought down upon us the full wrath of the Japanese whalers and their supporters within the Japanese government. After receiving an infusion of $29 million in subsidies from money that was supposed to go to help victims of the 2011 Japanese tsunami, the whalers went on the attack on several fronts. In addition to using the money to fund extra “security” for its whaling fleet on the high seas, the whalers also used the money to fund a prolonged legal fight against Sea Shepherd in the U.S. courts.

In December 2011, two Japanese whaling entities, the Institute for Cetacean Research (ICR) and Kyodo Senpaku Kaisha Ltd., filed a lawsuit in the United States District Court for the Western District of Washington in Seattle, seeking an injunction against Sea Shepherd and Captain Watson to prevent us from continuing to interfere with their illegal whaling. The whalers alleged that by trying to save whales from their harpoons, we committed “piracy,” financed “terrorism,” and violated international norms and treaties relating to safe navigation.

After years of defending ourselves against this lawsuit and related contempt charges, in May 2015 Sea Shepherd and Captain Watson went on the offensive, filing a comprehensive set of counterclaims against the whalers. In January 2016, in response to an order from the Court, we updated these counterclaims to allege that the whalers’ conduct – namely, violent attacks on Sea Shepherd vessels in furtherance of illegal commercial whaling – constitutes piracy under US and international law. In order to stop the whalers from committing such acts, we have asked the Seattle federal court to issue an injunction that would put an end to this lawless behavior. In addition, we are demanding that the whalers pay for the damages caused by their deliberate ramming of the Sea Shepherd vessel Ady Gil in January 2010.

Although it would normally be impossible to force the Japanese whalers to appear in a U.S. court, we have a unique opportunity to press our claims because the whalers initiated this case against us. Now that the whalers have chased Sea Shepherd into the federal court in Seattle, they cannot claim that the court does not have jurisdiction over them, and they must answer our allegations. Subject to federal procedural rules and the orders of the district judge, the whalers must also yield to the full rigors of the U.S. justice system, which requires that all parties produce voluminous materials to the other side in a process called discovery, and to submit themselves to questioning by the opposition through depositions and at trial.

Sea Shepherd Wins Initial Court Battles, But is Repeatedly Reversed on Appeal

The long gap between the filing of the whalers’ initial complaint in late 2011 and the filing of Sea Shepherd’s own set of comprehensive counterclaims in 2015 is principally a product of the complex and unusual procedural history of this case, which has bounced between the federal trial court in Seattle and the U.S. Court of Appeals for the Ninth Circuit.

In March 2012, U.S. District Judge Richard Jones denied the whalers’ motion for a preliminary injunction to stop us from interfering with their illegal hunts, finding that the whalers had not proven that they were at risk of irreparable harm, and that such an injunction would be against the public interest because it would allow the whalers to continue their illegal actions unimpeded. Judge Jones also dismissed the allegations of “piracy” against us, concluding that our activities did not qualify as piracy because we are not violent and because we seek only to protect the whales and the oceans, and not to realize any personal financial gain.

The whalers appealed Judge Jones’ ruling. In December 2012, a three-judge panel on the Ninth Circuit reversed Judge Jones and issued a preliminary injunction that barred Sea Shepherd, Captain Watson and “any party acting in concert with them” from approaching the Japanese whaling fleet within 500 yards on the open ocean. In early 2013, the Ninth Circuit issued an opinion to support its injunction that allowed the whalers to accuse us of “piracy” under a very broad definition of the term, and which took the highly unusual step of removing Judge Jones from the case. This injunction remains in effect today.

Sea Shepherd is a law-abiding organization, so we responded to the injunction by withdrawing our support and participation from the Southern Ocean whale defense campaigns. But other Sea Shepherd entities around the world, including Sea Shepherd Australia and Sea Shepherd Global, took up the leadership of these campaigns, including Operation Zero Tolerance, which saved 932 whales during the 2012-2013 whaling season, and Operation Relentless, which saved 784 whales during 2013-2014.

Frustrated that they had not succeeded in stopping the worldwide Sea Shepherd movement by suing us, the whalers filed a motion in early 2013 asking the Ninth Circuit to hold us in contempt for violating the preliminary injunction – claiming that we were responsible for the actions of the foreign Sea Shepherd groups during Operation Zero Tolerance. The Ninth Circuit referred the issue of contempt its own factfinder, a Ninth Circuit Appellate Commissioner. Following a 10-day trial in October 2013, the Appellate Commissioner issued an opinion recommending that Sea Shepherd, Captain Watson, several former Sea Shepherd directors, and the former Sea Shepherd administrative director not be held in contempt.

In December 2014, however, the same three-judge Ninth Circuit panel that had reversed Judge Jones rejected the conclusions of its handpicked factfinder, holding that Sea Shepherd, Captain Watson and the former directors were liable for contempt for “aiding and abetting” the actions of the foreign Sea Shepherd groups, and ordering us to pay damages. Sea Shepherd thought that the Ninth Circuit had overstepped its bounds in this opinion, and sought review from the full Ninth Circuit and from the U.S. Supreme Court. This petition was denied, however, and Sea Shepherd agreed in June 2015 to settle the contempt charges with the whalers, paying them $2.55 million in exchange for them dismissing their action for damages of more than $4 million, and dropping all future claims against the Sea Shepherd board.

Sea Shepherd and Watson Launch New Battle in District Court

With the contempt action resolved, the legal battle has now returned to the district court, where Sea Shepherd finally has the chance to take the offensive against the whalers. Our amended counterclaims include four sets of allegations:

  • Count One asserts that the whalers are guilty of piracy, because they have used violent and dangerous tactics to keep Sea Shepherd from interfering with and publicizing their illegal killing of whales. While Japan claims that slaughtering whales is justified by “science,” this rationale has been decisively rejected by the International Court of Justice, which has held that there is no research basis for Japan’s lethal whaling, and that Southern Ocean whaling violates international law. In reality, Japan’s lethal whaling is a for-profit enterprise, and we seek an injunction to prevent the whalers from employing violence against Sea Shepherd vessels and personnel to protect this bloody and illegal commercial activity.
  • Count Two alleges that the whalers have engaged activities on the high seas which interfere with safe navigation, and that they should be ordered to cease these activities.
     
  • Count Three alleges that the whalers have collected hundreds of millions of dollars from the Japanese government to subsidize their illegal activities, including $29 million from the tsunami relief fund, and that this causes them to be in violation of international law banning the financing of piracy and unsafe navigation.
     
  • Finally, Count Four seeks to finally hold the whalers accountable for their deliberate ramming and destruction of the Sea Shepherd vessel Ady Gil in January 2010, and for other damage they have caused by attacking Sea Shepherd vessels.

There are currently several motions pending in the federal district court, including our motion to dismiss the whalers’ claims and their motion to dismiss our counterclaims. We have also filed a motion to compel the whalers to respond to our extensive requests for information about their illegal whaling enterprise.

Trial on the case is scheduled for October 2016.

 

Timeline

1986 
International Whaling Commission issues global ban on commercial whaling.

December 2005 - March 2006
Operation Minke. Sea Shepherd disrupts Japanese whaling operations for the first time in Antarctica. 169 whales saved

December 2006 - March 2007
Operation Leviathan. 534 whales saved.

December 2007 - March 2008
Operation Migaloo. 484 whales saved.

January 2008 
Australia court issues injunction prohibiting whalers from killing whales in Australian Whale Sanctuary.

November 2008
First season of Whale Wars airs on Animal Planet.

December 2008 - March 2009
Operation Musashi. 305 whales saved.

December 2009 - March 2010
Operation Waltzing Matilda. 528 whales saved.

January 2010 
Whalers ram and destroy Sea Shepherd vessel Ady Gil.

May 2010 
Australia sues Japan in the International Court of Justice to have Japanese whaling declared illegal.

December 2010 - March 2011
Operation No Compromise. 863 whales saved.

December 2011 
Whalers sue Sea Shepherd in U.S. federal court.

December 2011 - March 2012
Operation Divine Wind. 768 whales saved.

March 2012 
U.S. District Judge denies whalers’ request for a preliminary injunction to stop Sea Shepherd’s Antarctic whale defense campaign.

May 2012 
Captain Paul Watson is arrested in Germany; Japan requests extradition.

December 2012 
Ninth Circuit reverses District Court; allows whalers to pursue “piracy” charges against Sea Shepherd, and imposes injunction against its Antarctic whale defense campaign.

December 2012 
Due to injunction, Sea Shepherd U.S. withdraws from the Antarctic whale defense campaigns.

January 2013 - March 2013 
Global Sea Shepherd entities proceed with Operation Zero Tolerance. 932 whales saved.

February 2013 
Whalers sue Sea Shepherd for contempt of injunction related to Operation Zero Tolerance.

October 2013 
Trial held for Sea Shepherd U.S., Watson and others on contempt charge.

December 2013-March 2014
Global Sea Shepherd entities proceed with Operation Relentless. 784 whales saved.

January 2014 
Trial commissioner issues opinion that neither Sea Shepherd nor Watson should be liable for contempt.

December 2014 
Ninth Circuit reverses trial commissioner; finds Sea Shepherd and Watson liable for contempt; orders payment of damages.

March 2014 
International Court of Justice rules that Japanese whaling in Southern Ocean violates international law.

Supreme CourtApril 2014
Sea Shepherd asks U.S. Supreme Court to hear case to reverse Ninth Circuit; petition ultimately denied.

December 2014-March 2015 
Whalers kill no whales in Southern Ocean for first time in 25 years.

May 2015 
Sea Shepherd sues whalers; seeks injunction ordering that they halt whaling and pay damages for destruction of Ady Gil.

June 2015 
Sea Shepherd settles contempt damages claim with whalers.

July 2015 
Sea Shepherd moves to dismiss whalers’ remaining lawsuit, including request for permanent injunction.

November 2015 
Australian court rules whalers in contempt for violating 2008 Australian injunction, fining them $1 million; whalers refuse to appear.

January 2016
Sea Shepherd files an amended complaint in U.S. federal court seeking an injunction against whalers’ illegal activities.

October 2016 
Trial scheduled in U.S. federal court between Sea Shepherd and whalers.

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