Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding D.C. No. 3:12-cv-00042-SLG
The opinion of the court was delivered by: Tashima, Circuit Judge
Argued and Submitted October 9, 2012--Seattle, Washington
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Tashima; Partial Concurrence and Partial Dissent by Judge Milan D. Smith, Jr.
Maritime Law / Preliminary Injunction
The panel affirmed the district court's preliminary injunction, which prohibited Greenpeace USA from coming within a specified distance of vessels involved in an oil company's exploration of its Arctic Outer Continental Shelf leases and from committing various unlawful and tortious acts against those vessels as they journeyed from shore-based facilities in the United States, through United States territorial waters, and into the waters of the U.S. Exclusive Economic Zone, where rigs attach to the Arctic seabed and conduct exploration activities.
The panel held that Shell Offshore, Inc., and Shell Gulf of Mexico, Inc., had standing to seek injunctive relief and that the dispute was ripe. The panel concluded that even though the preliminary injunction, limited to a single Arctic Ocean open water season, had expired, the case was not moot because it fell within the exception for disputes capable of repetition, yet evading review.
Greenpeace USA did not dispute that, with regard to injunctive relief in the United States and its territorial waters, the district court had diversity jurisdiction, nor that the Outer Continental Shelf Lands Act gave the court jurisdiction to grant injunctive relief while Shell's vessels were attached to the seabed. The panel did not decide whether, under 28 U.S.C. § 1333, the district court also had admiralty jurisdiction to enjoin conduct relating to vessels transiting through the U.S. Exclusive Economic Zone. Instead, the panel held that the district court could exercise supplemental jurisdiction over the entire case because a common nucleus of operative facts underlay Shell's claim for injunctive relief.
The panel affirmed the district court's conclusion that Greenpeace USA was the proper entity to enjoin. The panel also affirmed the district court's conclusions that Shell had shown (1) a likelihood of success on the merits of its claim that Greenpeace USA would commit tortious or illegal acts against the Arctic drilling operation absent an injunction and (2) that the resulting harm would be irreparable. In addition, the district court did not abuse its discretion in concluding that the balance of the equities and the public interest favored Shell.
Judge M. Smith concurred with Parts III and IV of the majority opinion addressing justiciability and jurisdiction. He dissented from the majority's holding that Shell could impute the illegal actions of other independent Greenpeace entities to Greenpeace USA in order to meet Shell's burden of proof for preliminary injunctive relief.
Shell Offshore, Inc. and Shell Gulf of Mexico, Inc. (together, "Shell") hold multi-year oil and gas leases in the Outer Continental Shelf ("OCS"), located in the Arctic Ocean off the coast of Alaska. Greenpeace, Inc. ("Greenpeace USA") has publicly undertaken a campaign to "stop Shell" from drilling in the Arctic. The district court granted Shell's motion for a preliminary injunction, which prohibited Greenpeace USA from coming within a specified distance of vessels involved in Shell's Arctic OCS exploration and from committing various unlawful and tortious acts against those vessels. Greenpeace USA argues that the action is not justiciable, that the district court lacked subject matter jurisdiction to issue its order, and that the court erred in its application of Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), to the merits of Shell's motion. We conclude that the action presents a justiciable case or controversy, that the district court had jurisdiction to issue its order, and that it did not abuse its discretion in doing so. Accordingly, we affirm.
A. Greenpeace Efforts to Stop Arctic Drilling
Shell has presented evidence that Greenpeace USA and Greenpeace entities around the world are publicly committed to stopping Shell's exploration of its Arctic OCS leases. Indeed, the websites of virtually all Greenpeace organizations, including Greenpeace USA, prominently feature a campaign to "stop Shell."
But "stop Shell" is not merely a campaign of words and images. Greenpeace USA also uses so-called "direct actions" to achieve its goals, and its general counsel has conceded that direct action can include illegal activity. There is evidence that Greenpeace USA and its counterparts around the globe are united in the goal of stopping Shell. When Greenpeace activists forcibly boarded an oil rig off the coast of Greenland in 2010 and used their bodies to impede a drilling operation, Greenpeace USA's executive director described their conduct as "bold non-violent direct action" by "our activists."
Greenpeace USA similarly endorsed the forcible boarding of a Shell vessel by Greenpeace New Zealand activists in February 2012, again referring to them as "our brave activists."
The record before the district court contained evidence that Greenpeace activists used illegal "direct action" to interfere with legal oil drilling activities on many such occasions. Several incidents involved Shell vessels that were subsequently named in the district court's preliminary injunction order and used in Shell's 2012 Arctic OCS drilling operation. See Shell Offshore Inc. v. Greenpeace, Inc., 864 F. Supp. 2d 839, 854-55 (D. Alaska 2012). These incidents were as follows:
1. Direct Action Against Shell's Harvey Explorer Vessel
Greenpeace USA activists unlawfully boarded the Harvey Explorer, a vessel that Shell contracted to use in its Arctic OCS operation, in May 2010. The vessel was in the Gulf of Mexico (and scheduled to depart for Alaska) when activists boarded it, unfurled banners, and painted slogans on its walls.*fn2
2. Direct Action Against Cairn Energy's Arctic Drilling Operation
Shell adduced evidence that Greenpeace used direct action against another energy company, Cairn Energy, in order to prevent Cairn from conducting OCS oil and gas exploration activities in the Arctic Ocean. Greenpeace USA's executive director described the first such action in Greenpeace International's 2010 Annual Report:
In August, our activists evaded Danish navy commanders and scaled Cairn's exploration rig off Greenland, halting the operation - we knew that, due to very tight deadlines, even a minor delay could have a major effect; Cairn didn't find oil in 2010.
Dkt. 56-19 (Ex. 1015 at 0005).
In 2011, Greenpeace activists again boarded a Cairn vessel off the coast of Greenland. Approximately twenty such activists were arrested after climbing the rig, attaching themselves under the rig in a "survival pod," and hanging a few meters from the drill bit. A news report posted on the Greenpeace Africa website quoted one of the "climbers" as saying:
There's no way Cairn can drill for oil while we're hanging next to their drill-bit, and it's going to be extremely difficult for them to remove our survival pod. To drill oil here would be dangerous insanity. We have to stop the Arctic oil rush.
Dkt. 56-25 (Ex. 1020 at 0001).
3. Direct Action Against Shell's Noble ...