Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y

153 F.Supp.3d 1291

Institute of Cetacean Research, et al, Plaintiffs,

v.Sea Shepherd Conservation Society, et al, Defendants.

CASE NO. C11-2043JLR

United States District Court, W.D. Washington, at Seattle.

Signed December 20, 2015.

Filed December 21, 2015

James L. Phillips, Miller Nash Graham & Dunn LLP, Seattle, WA, M. Christie Helmer, John F. Neupert, Miller Nash Graham & Dunn LLP, Portland, OR, for Plaintiffs.

Claire Loebs Davis, Douglas W. Greene, Kristin Beneski, Lane Powell PC, Hilary V. Bricken, Harris & Moure PLLC, Seattle, WA, for Defendants.

ORDER

JAMES L. ROBART, United States District Judge

I. INTRODUCTION

This matter comes before the court on four dispositive motions and two discovery motions. Plaintiffs The Institute of Cetacean Research (“the Institute”), Kyodo Senpaku Kaisha, Ltd., and Tomoyuki Ogawa (collectively, “Plaintiffs”)¹ move to dismiss all six of Defendants Sea Shepherd Conservation Society (“SSCS”) and Paul Watson's (collectively, “Defendants”) counterclaims. (See MTD (Dkt. # 255); MTD Resp. (Dkt. # 263); MTD Reply (Dkt. # 265).) Alternatively, Plaintiffs moved for partial summary judgment on Defendants' fifth counterclaim, in which SSCS seeks damages for intentional or negligent destruction of property. (See 7/16/15 MPS J (Dkt. # 257); 8/3/15 MPSJ Resp. (Dkt. # 262); 8/7/15 MPSJ Reply (Dkt. # 264); see also 2ACC ¶¶ 87-93.)² Plaintiffs' July 16, 2015 motion for partial summary judgment incorporated by reference Plaintiffs' still-pending April 9, 2015 motion for partial summary judgment, which also sought dismissal of SSCS's counterclaim for damages, and which the parties fully briefed. (See 4/9/15 MPSJ (Dkt. # 228); 4/27/15 MPSJ Resp. (Dkt. # 231); 5/1/15 MPSJ Reply (Dkt. # 232).) Finally, Defendants moved for judgment on the pleadings on all of Plaintiffs' claims. (See MJP (Dkt. # 260); MJP Resp. (Dkt. # 266); MJP Reply (Dkt. # 267).)

Defendants also filed two discovery motions. The first seeks to compel production from the Plaintiffs. (See MTC (Dkt. # 271); MTC Resp. (Dkt. # 277); MTC Reply (Dkt. # 283).) The second asks the court to confirm that Defendants have unilaterally terminated the confidentiality agreement between the parties. (See MTCT (Dkt. # 272); MTCT Resp. (Dkt. # 280); MTCT Reply (Dkt. # 286).)

Having considered the submissions of the parties, the appropriate portions of the record, and the relevant law, and having heard oral argument on December 15, 2015, the court GRANTS IN PART and DENIES IN PART the various motions, as detailed herein.

II. BACKGROUND

A. Procedural History

Plaintiffs filed this case on December 8, 2011, invoking jurisdiction under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, and seeking to enjoin Defendants' alleged dangerous behavior on the high seas in the Antarctic. (Compl. (Dkt. # 1).) Defendants answered and counterclaimed, seeking to enjoin Plaintiffs and collect damages for Plaintiffs' comparable actions. (Ans. (Dkt. # 94).) Following motions practice and a hearing, this court denied Plaintiffs' motion for a preliminary injunction on March 19, 2012. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y , 860 F.Supp.2d 1216 (W.D.Wash.2012). After Plaintiffs appealed that order, this court stayed proceedings on February 1, 2013. (Stay (Dkt. # 131).) The Ninth Circuit reversed this court's denial of a preliminary injunction on February 25, 2013, instituting a preliminary injunction “until further order” of the Ninth Circuit. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y , 708 F.3d 1099, 1106 (9th Cir.2013). The Ninth Circuit insubstantially amended and superseded that order on May 24, 2013. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean I) , 725 F.3d 940 (9th Cir.2013).

This case remained stayed while Plaintiffs brought contempt proceedings in the Ninth Circuit. On December 19, 2014, the Ninth Circuit held SSCS, Mr. Watson, and several non-parties to this suit liable for civil contempt. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean II) , 774 F.3d 935, 959 (9th Cir.2014). The Ninth Circuit issued a contemporaneous decision rejecting several peripheral challenges to the injunction. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean III) , 588 Fed.Appx. 701 (9th Cir.2014) (unpublished).³

On March 31, 2015, this court lifted its stay. (3/31/15 Min. Entry (Dkt. # 243).) Plaintiffs filed the operative first amended complaint on May 1, 2015 (see FAC (Dkt. # 234)), and Defendants answered that complaint and asserted counterclaims on June 30, 2015 (see FAC Ans. (Dkt. # 250); 2ACC). On June 4, 2015, pursuant to the Ninth Circuit's directive in Cetacean II, this court imposed coercive sanctions on the parties that had violated the injunction. (Sanct. Order (Dkt. # 239).) The case then proceeded, and the parties have since filed the motions addressed herein.

B. Factual Background⁴

This is a case between Antarctic whalers and environmentalists that oppose whaling. The Institute is a Japanese foundation that performs lethal whaling in the Southern Ocean. (See FAC ¶¶ 3, 10.) Kyodo Senpaku, a Japanese corporation, owns the whaling vessels used by the Institute, and Mr. Ogawa is the Master of the Nisshin Mara, the “mother” ship of the Institute's whaling operations. (See id. ¶¶ 4-5.)

In 1982, the International Whaling Commission adopted a moratorium on commercial whaling, which took effect in 1986. (ICJ Ruling (Dkt. # 175-1) ¶ 100; see also 2ACC ¶ 16.) Under Article VIII of the International Convention for the Regulation of Whaling, however, this moratorium does not apply to whale hunting conducted in accordance with a “special permit” granted for purposes of scientific research by a signatory of the Whaling Convention. International Convention for the Regulation of Whaling [hereinafter Whaling Convention] art. VIII, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74; (see also ICJ Ruling ¶ 55.) From 1987 to 2014, through a series of programs entitled JARPA and JARPA II, Japan has issued special permits to the Institute on an annual basis. (See ICJ Ruling ¶¶ 99-100.) These special permits allow the Institute to perform lethal whaling in the Southern Ocean.⁵ (See FAC ¶ 11.) The Institute performs its Southern Ocean whaling operations from roughly December to March of each year. (See id. ¶ 12.)

Mr. Watson founded SSCS and served as its executive director until the Ninth Circuit issued its injunction. (See FAC ¶ 7; FAC Ans. ¶ 7; 2ACC ¶ 6.) SSCS's mission is “to end the destruction of habitat and slaughter of wildlife in the world's oceans.” (See 2ACC ¶ 2.) To that end, from 2005 to 2012, SSCS collaborated with foreign Sea Shepherd entities⁶ “on campaigns aimed at exposing and impeding [the Institute's] illegal killing of whales in the Southern Ocean.” (Id. ¶ 28.) Those campaigns sought to “locate and follow” the Institute's whaling ships, “and frustrate its ... whale hunt.” (Id. ) Defendants take the position that notwithstanding the Institute's special permits from Japan, their whaling is nonscientific and thus contravenes the Whaling Convention and other international law. (See id. ¶¶ 19-20.)

Defendants' campaigns led to several nautical confrontations between Plaintiffs and Defendants. (See FAC ¶¶ 13-21; 2ACC ¶¶ 35-38.) The parties dispute who was the aggressor in these interactions, but the acts allegedly taken by one or both parties include ship ramming; throwing bottles of butyric acid, grappling hooks, glass bottles of paint, and smoke bombs and other incendiary devices; illegal boarding; targeting with flares, long-range acoustic devices, and water cannons; fouling rudders and propellers; assault; stabbing with bamboo poles; and general unsafe navigation. (See FAC ¶¶ 15, 20; 2ACC ¶¶ 35-38,41, 43.) Plaintiffs have obtained preliminary injunctive relief against Defendants' acts of piracy and unsafe navigation. See Cetacean I , 725 F.3d at 947. The preliminary injunction bars Defendants from “physically attacking any vessel engaged by Plaintiffs ... in the Southern Ocean ... or from navigating in a manner that is likely to endanger the safe operation of any such vessel.” Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean Injunction ), 702 F.3d 573, 573 (9th Cir.2012) ; Cetacean I , 725 F.3d at 947 (ordering that the Ninth Circuit's injunction pending appeal in Cetacean Injunction “remain in effect until further order of the Ninth Circuit”). Furthermore, Defendants are “[i]n no event” to “approach [P]laintiffs any closer than 500 yards when [D]efendants are navigating on the open sea.” Id. In subsequent proceedings, the Ninth Circuit found Plaintiffs in contempt of the injunction, see Cetacean II , 774 F.3d at 959, and this court issued civil contempt sanctions on Plaintiffs (see Sanct. Order).

In March of 2014, the International Court of Justice (“ICJ”) ruled that JARPA II is noncompliant with the Whaling Convention. (See ICJ Ruling.) In response, Japan declined to grant any special permits for the 2014-15 season, and Plaintiffs performed only sighting surveys. (See FAC ¶ 31.) Japan then developed a new plan for granting special permits entitled NEWREP-A. (See id.; 2ACC ¶ 27.) NEWREP-A lasts 12 years, beginning in the 2015-16 whaling season, and allows the Institute to kill up to 333 minke whales—but no other whale species—annually. (See id. ) A scientific panel at the IWC has found that NEWREP-A—like JARPA II—lacks a scientific basis. (2ACC ¶ 60.)

Plaintiffs intend to recommence whaling in the 2015-16 season with a new special permit under Japan's NEWREP-A program. (FAC ¶ 31, 2ACC ¶ 60.) Defendants have pledged to abide by the preliminary injunction and “do not plan to ever participate again in a Southern Ocean whale-protection campaign.” (Not. of Compliance (Dkt. # 248) at 2; 2ACC ¶ 5.) Nonetheless, foreign Sea Shepherd entities have continued their campaigns, allegedly with funding provided by SSCS. (See FAC ¶ 50.3; FAC Ans. ¶ 44.) The parties seek...