Tuesday, February 26, 2013

Institute of Cetacean Research v. Sea Shepherd Conservation Society (9th Cir. - Feb. 25, 2013)

This Ninth Circuit opinion is certainly timely.

Chief Judge Kozinski calls the crew of the Sea Shepherd -- an anti-whaling ship featured on the Animal Planet television show Whale Wars -- "pirates."  It's a strongly-worded opinion by Judge Kozinski, and the use of the term "pirate" is deliberate; the Ninth Circuit holds that the plaintiffs (Japanese whalers) have a cause of action against the Sea Shepherd Conservation Society under the Alien Tort Claims Act for piracy.  The Ninth Circuit holds that it doesn't matter that the defendant's conduct is for environmental reasons; it's still violence directed at a ship on the high seas, and the advancement of environmental goals is (the Ninth Circuit holds) "private ends."  So the panel not only reverses the district court's denial of plaintiff's request for a preliminary injunction, but also reassigns the case to a different district judge.  (Judge Milan Smith dissents from the reassignment portion of the opinion.)

Meanwhile, on the same day the Ninth Circuit issued its opinion, half a world away, here's what happens.  The Sea Shepherd collides with whaling ships, each side blaming the other.  One thing's clear, however.  The whalers are taking a more aggressive approach.  Both on the seas as well as in the courtroom.

And what the Ninth Circuit says in its opinion won't tend to make them adopt a different approach.

P.S. - What do you think history will say about Judge Kozinski's opinion?  Put to one side whether he's right about the law.  It's a powerful opinion, full of language that excoriates the Sea Shepherd and its crew.  One could, of course, have adopted a different style.  Will history view the current treatment (read: killing) of large whales favorably?  Or will, on the other side, history take a view akin to how we view the historical record of slavery?  If the latter, in the future, will the Ninth Circuit's opinion in this case be read in the way we currently view lots of the older slavery and/or immigration cases (e.g., cases involving the Fugitive Slave Act)?  My personal take is that we don't necessarily view those cases as "wrong" given the then-prevailing jurisprudence (putting to one side Dred Scott).  But that we nonetheless view them as powerfully morally wrong.  As well as take a dim view of lots of things the the authors of those opinions say in those opinion.  Particularly when, as here, the author expresses a strong moral judgment -- one that turns out to be substantially different than the one that prevails 50 or 100 years hence.