Appellate Commissioner Shaw of U.S. Court of Appeals Issues Recommendation
Appellate Commissioner Shaw of U.S. Court of Appeals for 9th Circuit Issues Recommendation in Case of Japan’s ICR Vs. Sea Shepherd; Final Ruling Still To Come
Appellate Commissioner Peter Shaw late yesterday issued a report and recommended factual findings that undercut the attempt by Japan’s Institute of Cetacean Research (ICR) to hold Sea Shepherd Conservation Society (SSCS), founder Paul Watson, SSCS’s current and former volunteer directors, and SSCS’s administrative director in contempt of court for allegedly violating a preliminary injunction issued in December 2012.
The injunction ordered SSCS and Watson to refrain from taking certain actions against Japanese vessels engaged in whaling in the Southern Ocean, including endangering the safe navigation of such vessels, physically “attacking” them, or approaching them closer than 500 yards. Japan’s Institute of Cetacean Research (ICR) asked the court to hold Watson, SSCS, current and former SSCS volunteer board members, and SSCS’s administrative director in contempt of court for allegedly failing to comply with the injunction during Operation Zero Tolerance (OZT), the 2012-2013 Antarctic Whale Defense Campaign. A trial on these contempt allegations was held before Commissioner Shaw in Seattle from October 28 through November 6, 2013.
Commissioner Shaw’s recommended findings strongly undercut ICR’s contempt claims. In a 79-page report, Commissioner Shaw repeatedly rejected ICR’s arguments and found that Watson, SSCS, and the SSCS leadership responded reasonably to the injunction, for example, by deciding to halt SSCS’s participation in OZT following the injunction. The Commissioner specifically rejected ICR’s claim that SSCS attempted to ignore or evade the injunction.
Wrote Commissioner Shaw: “It is also clear that SSAL would have taken charge of OZT regardless of any action by Watson or anyone else with SSCS. There was strong public and legal support for whale defense in Australia and, once the SSAL board received a legal opinion that this court’s injunction did not bind SSAL, it was inevitable that SSAL would take over. Watson could not have prevented that from occurring. Ultimately, the responsibility for the incursions of the safety perimeter and any other violation of the injunction lies with SSAL and the captains who reported to SSAL, but plaintiffs have not sought a remedy in this court over SSAL or those captains, and it is doubtful that jurisdiction exists to do so.”
While Commissioner Shaw’s recommendations are welcome news for the founder, officers, directors, staff and supporters of Sea Shepherd Conservation Society, the organization is aware that they are recommendations, and now awaits a ruling in the case by the three-member panel of the Ninth Circuit Court of Appeals that first issued the injunction.
“We are pleased by this report from Commissioner Shaw,” said Charles Moure, counsel for Sea Shepherd Conservation Society. “Clearly, he very thoroughly and thoughtfully considered the thousands of pages of evidence and testimony of many witnesses in this case to issue this well-reasoned recommendation,” Moure said.
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