United States District Court, W.D. Washington, Seattle
ORDER ON MOTION FOR SANCTIONS
JAMES L. ROBART, District Judge.
This matter comes before the court on Plaintiffs The Institute of Cetacean Research and Kyodo Senpaku Kaisha, Ltd.'s (collectively, "the Institute") motion for remedial sanctions. (Mot. (Dkt. # 214).) The Institute brings this motion against Defendants Sea Shepherd Conservation Society ("Sea Shepherd US") and Paul Watson, as well as against non-parties Lani Blazier, Marnie Gaede, Bob Talbot, Robert Winter, Ben Zuckerman, and Peter Reiman ("the Former Directors"). Having considered the submissions of the parties, the balance of the record, and the relevant law, and deeming oral argument unnecessary, the court GRANTS in part and DENIES in part the motion.
The underlying facts are set forth in detail in this court's and the Ninth Circuit's prior orders. See Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean I), 725 F.3d 940 (9th Cir. 2013) (preliminary injunction order); Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean II), 774 F.3d 935 (9th Cir. 2014) (contempt order); Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, No. 12-35266 (9th Cir.) Dkt. # 314 [hereinafter R&R]. Accordingly, the court summarizes them only briefly here.
The Institute comprises (1) a Japanese research foundation that receives permits from the Japanese government authorizing it to take whales for research purposes, and (2) the Japanese corporation that owns and crews the whaling ships utilized in the research endeavors. (R&R at 4.) Sea Shepherd US, a nonprofit organization based in the state of Washington, is part of a loosely organized conservation movement whose stated goal is to "defend, conserve, and protect the world's marine wildlife species." (Id. at 3.) This movement includes entities, also bearing the "Sea Shepherd" name, organized and governed under the laws of other jurisdictions, such as Australia, Belgium, and France. (Id. ) Each of these entities has its own board of directors and separate bank accounts. (Id. at 3-4.) For years, the Sea Shepherd movement, led by Sea Shepherd US, has mounted a yearly campaign seeking to prevent the Institute from killing whales in the Southern Ocean. (Id. at 4.) During this campaign, vessels owned and crewed by the Sea Shepherd movement have engaged in various forms of direct interference with the Institute's ships. (Id. at 5.)
Seeking to put an end to the interference, the Institute filed suit against Sea Shepherd U.S. and its founder and Executive Director, Paul Watson, in this district court in late 2011. (Compl. (Dkt. # 1).) The Institute moved for a preliminary injunction, which the district court denied. Inst. of Cetacean Research v. Sea Shepherd Conservation Soc., 860 F.Supp.2d 1216 (W.D. Wash. 2012). Pending a ruling on appeal, the Ninth Circuit issued the following preliminary injunction in December, 2012:
Defendants Sea Shepherd Conservation Society and Paul Watson, and any party acting in concert with them (collectively "defendants"), are enjoined from physically attacking any vessel engaged by Plaintiffs the Institute of Cetacean Research, Kyodo Senpaku Kaisha, Ltd., Tomoyuki Ogawa or Toshiyuki Miura in the Southern Ocean or any person on any such vessel (collectively "plaintiffs"), or from navigating in a manner that is likely to endanger the safe navigation of any such vessel. In no event shall defendants approach plaintiffs any closer than 500 yards when defendants are navigating on the open sea.
(Injunction (Dkt. # 118).)
When the Institute claimed that Sea Shepherd US, Mr. Watson, and Sea Shepherd's then-board of volunteer directors (the Former Directors) were violating the Ninth Circuit's preliminary injunction, the Ninth Circuit referred the resulting contempt proceedings to the Appellate Commissioner ("Commissioner"). (Dkt. # 133.) The Ninth Circuit then reversed the district court's denial of a preliminary injunction and remanded the case. Cetacean I, 725 F.3d at 947; (Dkt. # 150 (mandate).) In doing so, the Ninth Circuit provided that its preliminary injunction would "remain in effect until further order of [the Ninth Circuit]." Cetacean I, 725 F.3d at 947.
After an eight-day trial on the Institute's motion for contempt, the Commissioner issued a Report and Recommendation detailing the actions Sea Shepherd US, Mr. Watson, and the Former Directors undertook during the 2012-13 whaling season after the Ninth Circuit issued its injunction. ( See R&R.) In short, Sea Shepherd US's board enacted a "separation strategy." ( See generally id. ) Pursuant to this strategy, Sea Shepherd U.S. ceded control of the 2012-13 interference campaign, which it had previously taken the lead logistical role in coordinating, to Sea Shepherd Australia Limited ("Sea Shepherd Australia"), and otherwise severed ties to the campaign. ( See generally id. ) In doing so, Sea Shepherd U.S. granted its partial interest in one ship (the Bob Barker ) slated to be used in the 2012-13 campaign, as well as certain equipment on other ships, to foreign Sea Shepherd entities. ( See generally id. ) Sea Shepherd Australia, which viewed itself beyond the reach of the Ninth Circuit's injunction, conducted the 2012-13 campaign with little, if any, regard for the injunction. ( See generally id. ) As a result, Sea Shepherd Australia's ships breached the 500-yard perimeter on multiple occasions. ( See generally id. )
The Commissioner found that Sea Shepherd U.S. and the Former Directors had not violated the express terms of the Ninth Circuit's injunction: they had not physically attacked any whaling vessel, engaged in navigation that endangered the safety of a whaling vessel, or approached within 500 yards of a whaling vessel on the open sea. ( See generally id.; Injunction.) The Commissioner further concluded that the "separation strategy" was a good faith effort to comply with the Ninth Circuit's injunction, and that Sea Shepherd U.S. could not be held liable for Sea Shepherd Australia's actions on the open sea during the campaign. ( See generally R&R.) Accordingly, the Commissioner recommended denying the Institute's motion for a finding of contempt. ( See generally id. )
On review, the Ninth Circuit disagreed with the Commissioner's legal conclusions. See Cetacean II, 774 F.3d at 944 ("We need not resolve which standard of review applies to the Commissioner's findings of fact because our decision rests on grounds the Commissioner incorrectly rejected because of errors of law."). The Ninth Circuit did not disturb the Commissioner's finding that Sea Shepherd U.S. and the Former Directors had not violated the strict letter of the injunction. Id. at 949. Rather, the Ninth Circuit found that Sea Shepherd U.S. had "thwarted" the Ninth Circuit's "objective" in issuing the injunction. Id. Specifically, the Ninth Circuit found that the separation strategy "effectively nullified [the Ninth Circuit's] injunction" because Sea Shepherd U.S. allowed Sea Shepherd Australia to assume control of the 2012-13 campaign and continued to provide "financial and other support for the campaign... by, among other things, transferring for no consideration a vessel and equipment worth millions of dollars." Id. at 945.
The Ninth Circuit ruled as a matter of law that "a party may be held in contempt for giving a non-party the means to violate an injunction, if the party knows it is highly likely the non-party will use those means to violate the injunction." Id. at 948. Applying that rule, the Ninth Circuit held Sea Shepherd U.S. in contempt because "Sea Shepherd US's separation strategy aided and abetted Sea Shepherd Australia and other Sea Shepherd entities to perform acts that would have violated the injunction if done by parties bound by it." Id. at 945.
The Ninth Circuit further held the Former Directors in contempt in their capacities as Sea Shepherd U.S. board members because they voted to ratify the "separation strategy" and the grant of the Bob Barker and other equipment. Id. at 955. Finally, the Ninth Circuit held Mr. Watson personally in contempt because he was present on one of the Sea Shepherd Australia ships that came within the 500-yard perimeter of the Institute's whaling vessels during the 2012-13 campaign. Id. at 957-58.
The Ninth Circuit referred the Institute's request for compensatory damages and attorneys' fees to the Commissioner. Id. at 959. The Ninth Circuit, however, directed the Institute's request for coercive sanctions to the district court. Id. ("While we retain jurisdiction to order remedial relief for acts of contempt that took place prior to the issuance of our mandate, because these coercive sanctions are forward-looking, we believe that policing the Defendants' continuing compliance with the preliminary injunction is better left to the district court.") Consistent with that direction, the Institute has moved for entry of coercive sanction against Defendants Sea Shepherd U.S. and Mr. Watson, as well as against the Former Directors. ( See Mot.)
Specifically, the Institute asks the court to impose on each Former Director a suspended fine of $500, 000.00, payable to the court immediately if the Former Director violates the Ninth Circuit's injunction. (Mot. at 3-4.) The Institute also asks the court to impose on each Sea Shepherd U.S. and Mr. Watson a suspended fine of $2, 000, 000.00, payable to the court immediately if the respective party (a) violates the Ninth Circuit's injunction; (b) encourages, supports, induces, or incites others to violate the Ninth Circuit's injunction; or (c) does not exercise good faith efforts (including initiating litigation) to secure control and possession of the four ships (namely, the Bob Barker, Brigitte Bardot, Sam Simon, ...