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Institute of Cetacean Research v. Sea Shepherd Conservation Society

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

March 17, 2017

INSTITUTE OF CETACEAN RESEARCH, et al, Plaintiffs,
v.
SEA SHEPHERD CONSERVATION SOCIETY, et al, Defendants.

          ORDER

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before the court is Defendants Sea Shepherd Conservation Society ("SSCS") and Paul Watson's (collectively, "Defendants") motion to clarify the scope of the permanent injunction. (Mot. (Dkt. # 352); see also Perm. Inj. (Dkt. # 346).) Plaintiffs The Institute of Cetacean Research ("the Institute"), Kyodo Senpaku Kaisha, Ltd., and Tomoyuki Ogawa (collectively, "Plaintiffs") oppose the motion as unripe and, even if ripe, lacking merit. (Resp. (Dkt. # 354).) The court has considered the parties' briefing, the relevant portions of the record, and the applicable law. Considering itself fully advised, [1] the court GRANTS in part and DENIES in part the motion and clarifies the injunction as follows.

         II. BACKGROUND

         Unlike Moby Dick, this whaling epic will apparently never end. On August 22, 2016, following nearly five years of litigation, the parties jointly moved for the entry of a negotiated permanent injunction that resolved all live claims. (Stip. Inj. (Dkt. # 343); Prop. Order (Dkt. # 344).) The next day, the court entered the parties' negotiated permanent injunction and terminated this case. (Perm. Inj. at 1-3.) Pursuant to the parties' stipulated motion, the court ordered:

Defendants and any party acting in concert with them are permanently enjoined 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 navigation of any such vessel. In no event shall Defendants or any party acting in concert with them approach Plaintiffs any closer than 500 yards when Defendants are navigating on the open sea.
Defendants and any party acting in concert with them are also permanently enjoined from providing any money or property for the purposes of funding any physical attacks on any vessel engaged by Plaintiffs in the Southern Ocean or any person on any such vessel, any navigation in a manner that is likely to endanger the safe navigation of any such vessel, or any approach of any such vessel closer than 500 yards in the open sea, including through any entity that is a part of the worldwide "Sea Shepherd" movement and/or uses or has used some version of the "Sea Shepherd" name.
On the stipulation of the parties, Defendants are also permanently enjoined from expending, directly or indirectly, any part of the settlement consideration to be paid to Sea Shepherd Conservation Society in the settlement of this action to fund acts enjoined herein as against not only Plaintiffs but those same acts as against third parties anywhere in the world.

(Id. at 2.) The court also dismissed all live claims and counterclaims, ordered each party to bear its own costs and attorneys' fees, ordered the parties to provide notice of the injunction to the Ninth Circuit Court of Appeals, and retained jurisdiction to enforce compliance with the permanent injunction. (Id. at 3.)

         Defendants interpret Plaintiffs' recent actions to suggest an actual or imminent "attempt to enforce an interpretation of the Permanent Injunction that goes far beyond its terms." (Mot. at 1.) On October 12, 2016, Plaintiffs sent a letter to third-party PayPal, Inc., that suggests PayPal may be held in contempt for "acting in concert with" Defendants. (Davis Decl. (Dkt. # 353) ¶ 2, Ex. 1 at 2.) In response, PayPal indicated that it had frozen three accounts that it determined were related to Defendants. (Id. ¶ 3, Ex. 2 at 1.) Plaintiffs have submitted similar letters to other financial institutions. (Id. ¶ 1.) In addition, Defendants sought confirmation from Plaintiffs that certain activities do not violate the injunction. (Id. ¶ 5, Ex. 4 at 1-2.) Plaintiffs did not directly respond to Defendants' requests for clarification, but instead indicated that they intend to "wait and see what unfolds." (Id. ¶ 6, Ex. 5 at 2.) Plaintiffs clarified that they "intend to take all steps necessary to ensure full and faithful compliance with the letter and spirit of the" injunction. (Id.)

         In prior proceedings, the Ninth Circuit sanctioned Defendants for violating the preliminary injunction in part because they self-servingly interpreted the injunction without "seek[ing] clarification of their obligations, " despite having "every opportunity" to do so. Inst, of Cetacean Research v. Sea Shepherd Conservation Soc'y (Cetacean II), 114 F.3d 935, 954 (9th Cir. 2014). In light of the Ninth Circuit's admonishment and Plaintiffs' unwillingness to clarify their position on Defendants' planned actions, Defendants now ask the court to clarify the scope of the injunction. (See Mot.) Specifically, Defendants ask the court to confirm that the following actions "would not constitute, or be evidence of, a violation" of the injunction:

1. Discussing the actions of foreign Sea Shepherd entities[2] on social media and other public platforms;
2. Communicating with foreign Sea Shepherd entities, as long as Defendants do not thus direct, incite, or control enjoined conduct;
3. Partnering with foreign Sea Shepherd entities on campaigns, income-generating activities and other projects unrelated to, and kept separate from, Southern ...

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