Sea Shepherd Conservation Society was disappointed to learn today that the U.S. Supreme Court has declined to review an appellate decision holding it in contempt of court based on the activities of foreign groups that opposed illegal Japanese whale hunting in the Southern Ocean.
Sea Shepherd filed a petition in April asking for the high court to hear the appeal, and the Court considered it in a judicial conference on June 4. The Court’s decision was released today.
The Supreme Court only hears appeals in about 75-80 cases each year, out of approximately 10,000 petitions that it receives annually.
“Supreme Court review is always a long shot, because the Court takes only a tiny percentage of the cases that it is asked to review each year,” said Claire Davis, a partner with Lane Powell, the law firm representing Sea Shepherd. “Nevertheless, we were hopeful that the Supreme Court might consider this case, because it raises important questions about the power of the U.S. courts to regulate conduct occurring in other parts of the globe. The fact that this appellate court ruling will stand not only affects Sea Shepherd, but also sets a dangerous precedent for any U.S. business that operates internationally.”
Sea Shepherd sought review of a Ninth Circuit Court of Appeals finding that it had 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.
Sea Shepherd’s petition took exception to two rulings by the Ninth Circuit— its issuance of the original injunction, and its finding that Sea Shepherd violated that injunction. Both rulings reversed prior decisions in favor of Sea Shepherd. In 2012, a federal district court in Seattle denied a request for an injunction against Sea Shepherd by the Institute of Cetacean Research, a Japanese whaling group. The Ninth Circuit reversed that ruling and issued its own injunction.
Despite its disagreement with the injunction issued in late 2012, Sea Shepherd complied with the court order, cutting all financial and administrative ties to Operation Zero Tolerance, an anti-whaling campaign scheduled for early 2013. In 2014, after an eight-day hearing, a special master recommended the Ninth Circuit find that neither Sea Shepherd nor any of the other affiliated defendants had violated the injunction. Although the Ninth Circuit conceded that Sea Shepherd had not violated any of the terms of the injunction, it rejected the special master’s recommendation and 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 raised 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. We are disappointed that the Court did not take the opportunity to consider the Ninth Circuit’s position on these important issues.”