Institue of Cetacean v. Sea Shepherd Conservatin , 588 F. App'x 701 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
INSTITUTE OF CETACEAN No. 12-35266
RESEARCH, a Japanese research
foundation; KYODO SENPAKU D.C. No. 2:11-cv-02043-RAJ
KAISHA, LTD., a Japanese corporation;
TOMOYUKI OGAWA, an individual;
TOSHIYUKI MIURA, an individual, MEMORANDUM*
Plaintiffs - Appellants,
v.
SEA SHEPHERD CONSERVATION
SOCIETY, an Oregon nonprofit
corporation; PAUL WATSON, an
individual,
Defendants - Appellees.
On a Motion for Contempt
Argued and Submitted October 27, 2014
Pasadena, California
Before: KOZINSKI, TASHIMA, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The Plaintiffs and the Defendants object to the Appellate Commissioner’s
Report and Recommendation recommending that the Defendants not be held in
contempt. We address most of their arguments in an opinion filed separately. The
Defendants briefly raise, but do not fully support, three additional arguments in
their objections. We address these arguments here.
The Defendants cite Schenck v. Pro-Choice Network of Western New York,
519 U.S. 357 (1997), and argue that our injunction’s requirement that they remain
500 yards away from the Plaintiffs on the open sea violates the First Amendment.
We reject this argument. As we recently held in Shell Offshore, Inc. v.
Greenpeace, Inc., “the high seas are not a public forum, and the lessons of Schenck
have little applicability there.” 709 F.3d 1281, 1291 (9th Cir. 2013). We therefore
hold that the injunction did not violate the Defendants’ rights under the First
Amendment.
The Defendants also contend that our injunction was “issued sua sponte and
without notice to any enjoined party, contravening the requirements of Federal
Rule of Appellate Procedure 8 and basic notions of due process.” We reject this
argument as well. It is undisputed that all parties to the injunction received notice
of it.
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Lastly, the Defendants contend that our injunction “reaches purely
extraterritorial conduct that does not violate specific and universal international-
law norms, in violation of Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659(2013).” Kiobel concerns the reach of the Alien Tort Statute, which provides that
“[t]he district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the
United States.” 28 U.S.C. § 1350. We construe the Defendants’ argument, which
is not adequately briefed, as a challenge to the district court’s jurisdiction to hear
the Plaintiffs’ claims. We also reject this argument. The Plaintiffs’ piracy claims
fall within the ambit of the Alien Tort Statute because piracy is a violation of the
law of nations. See Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004) (noting
that Congress “may well” have had actions arising out of piracy in mind when it
enacted the Alien Tort Statute); United States v. Smith, 18 U.S. 153, 161 (1820)
(“The common law, too, recognises and punishes piracy as an offence, not against
its own municipal code, but as an offence against the law of nations, (which is part
of the common law,) as an offence against the universal law of society, a pirate
being deemed an enemy of the human race.”).
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