Shell Oil Company v. Greenpeace, Inc.

Filing 108

ORDER: denying Motion to Dismiss for Lack of Jurisdiction 68 ; granting in part and denying in part Motion to Dismiss 75 ; granting Motion for TRO 6 ; granting Motion for Preliminary Injunction 100 . Signed by Judge Sharon L. Gleason on 05/29/2012. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

SHELL OFFSHORE INC., a Delaware
corporation, and SHELL GULF OF MEXICO
INC., a Delaware corporation,
Plaintiffs,
v.
GREENPEACE, INC., a California
corporation, and JOHN and JANE DOES 120,
Defendants.

Case No. 3:12-cv-00042-SLG

ORDER RE ALL PENDING MOTIONS

TABLE OF CONTENTS
Introduction ................................................................................................................... 3
I.

Greenpeace USA’s Rule 12(b)(1) Motion to Dismiss ....................................... 4
A.

Admiralty Jurisdiction ............................................................................................ 6

B.

OCSLA Jurisdiction .............................................................................................. 9

C.

Diversity Jurisdiction ........................................................................................... 12

D.

Is There a Case or Controversy?........................................................................ 14

II.

Greenpeace USA’s Rule 12(b)(6) Motion to Dismiss ..................................... 15
A.

Nuisance ............................................................................................................ 17

B.

Tortious Interference with Contractual Relations ................................................ 24

C.

Trespass and Trespass to Chattels .................................................................... 27

D.

Conversion ......................................................................................................... 32

E.

Interference with Maritime Navigation ................................................................ 34

III.

Shell’s Motion for Additional Preliminary Injunctive Relief, or
Alternatively, for an Indicative Ruling ............................................................ 35

IV.

Shell’s Motion for Preliminary Injunction ....................................................... 41

Conclusion................................................................................................................... 43

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Introduction
On March 28, 2012, this court entered a Preliminary Injunction Order solely with
respect to the United States twelve-mile territorial waters and ports. 1

That order

precludes Greenpeace Inc. (“Greenpeace USA”), and those acting in concert with it
from coming within certain designated distances of certain ships that Shell Offshore Inc.
and Shell Gulf of Mexico Inc. (collectively “Shell”) intend to use this summer for
exploratory Arctic drilling operations. This court deferred consideration of the scope of
any injunctive relief with regard to Shell’s planned operations at shore-based facilities
and within the waters of the 200-mile United States Exclusive Economic Zone (“EEZ”)
pending the completion of the parties’ briefing on two alternative motions to dismiss this
action that had been filed by Greenpeace USA. Meanwhile, Greenpeace USA has filed
an interlocutory appeal of the March 28, 2012 Preliminary Injunction Order to the Ninth
Circuit Court of Appeals. 2
Three motions that are now fully briefed include: (I) that portion of Greenpeace
USA’s motion to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1)
that was deferred when this court entered the Preliminary Injunction Order on March 28,
2012, 3 (II) Greenpeace USA’s motion to dismiss this action pursuant to Civil Rule
12(b)(6), 4 and (III) that portion of Shell’s motion for injunctive relief that was deferred in

1

Docket 87.

2

Shell v. Greenpeace, Inc., Appeal No. 12-35332 (filed Apr. 26, 2012).

3

Docket 68 [hereinafter 12(b)(1) Mot.]; Docket 87 at 4 [hereinafter Prelim. Inj. Order].

4

Docket 75 [hereinafter 12(b)(6) Mot.].

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this court’s order of March 28, 2012. 5 Most recently, on May 14, 2012, Shell filed a
Motion for Additional Preliminary Injunctive Relief, or Alternatively, for an Indicative
Ruling, on shortened time. 6 That motion has now been fully briefed as well. All four
pending motions are addressed in this order.
I.

Greenpeace USA’s Rule 12(b)(1) Motion to Dismiss
After Greenpeace USA had filed its two motions to dismiss, Shell filed its Second
Amended Verified Complaint in this action. 7 That complaint deleted some of the causes
of action that Shell had initially asserted.

Shell now alleges five causes of action

against Greenpeace USA: nuisance, tortious interference with contractual relations,
trespass and trespass to chattels, conversion, and interference with maritime
navigation. 8

For the first four of these causes of action, Shell’s Second Amended

Complaint has alleged subject matter jurisdiction “under admiralty and maritime law,
federal common law, and state law.” 9 As to the fifth cause of action, interference with
maritime navigation, Shell has alleged subject matter jurisdiction under “admiralty and
maritime law, and federal statutory law.” 10
Federal Rule of Civil Procedure 12(b)(1) provides that a party may seek
dismissal of an action based on the assertion that the court lacks subject matter
5

Docket 6; Prelim. Inj. Order at 9.

6

Docket 100 [hereinafter Mot. for Additional Relief].

7

Docket 86 [hereinafter Second Am. Compl.].

8

Id. at 11-18.

9

Id. at 13, 14, 15, and 16.

10

Id. at 18.

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jurisdiction. Greenpeace USA maintains that none of the asserted bases for subject
matter jurisdiction exists here.

It maintains that diversity jurisdiction has not been

demonstrated by the face of Shell’s complaint and that there is no federal question
jurisdiction under either 28 U.S.C. § 1331 or § 1333. Greenpeace USA also asserts
that 43 U.S.C. § 1349(b), a provision from the Outer Continental Shelf Lands Act
(“OCSLA”), does not support subject matter jurisdiction in this instance.

And

Greenpeace USA asserts that the International Regulations for Preventing Collisions at
Sea (“COLREGS”) do not confer subject matter jurisdiction with this court and that
international law does not permit the exercise of United States law in this instance.
Finally, Greenpeace USA argues that the requisite case or controversy is lacking.
“[W]hen considering a motion to dismiss pursuant to Rule 12(b)(1) the district
court is not restricted to the face of the pleadings, but may review any evidence, such
as affidavits and testimony, to resolve factual disputes concerning the existence of
jurisdiction.” 11

With respect to the alleged future tortious conduct by Greenpeace

USA—the focus of the immediate dispute between the parties—this court has relied
upon the assertions in the pleadings to determine the scope of subject matter
jurisdiction.

With regard to the role that Greenpeace USA may have had in the

incidents in New Zealand and Finland, the current record on this topic is limited, but it
demonstrates a genuine issue of material fact as to the role, if any, that Greenpeace

11

McCarthy v. U.S., 850 F.2d 558, 560 (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947)
(“when a question of the District Court's jurisdiction is raised . . . the court may inquire by
affidavits or otherwise, into the facts as they exist.”); Biotics Research Corp. v. Heckler, 710
F.2d 1375, 1379 (9th Cir. 1983) (consideration of material outside the pleadings did not convert
a Rule 12(b)(1) motion into one for summary judgment)).
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USA may have had in those incidents.

Resolution of that factual dispute is not

necessary to the determination of this Rule 12(b)(1) motion at this time. 12
This court’s March 28, 2012 Preliminary Injunction Order denied Greenpeace
USA’s Rule 12(b)(1) motion in part, and held that at a minimum, this court had admiralty
jurisdiction pursuant to 28 U.S.C. § 1333 within the United States twelve-mile territorial
sea and ports. 13 The balance of Greenpeace USA’s 12(b)(1) motion is now addressed.
A. Admiralty Jurisdiction
Shell has asserted that this court’s admiralty or maritime jurisdiction under 28
U.S.C. § 1333 extends beyond the twelve-mile territorial sea with respect to each of the
five causes of action it has pled in its Second Amended Complaint. Greenpeace USA
asserts that this court’s admiralty jurisdiction does not extend beyond the territorial sea
and an additional twelve-mile contiguous zone. 14
There are two components to the test for admiralty tort jurisdiction. 15 First, the
incident must occur on navigable waters. 16

It is well established that this locality

requirement includes the high seas as well as the United States Exclusive Economic

12

In this regard, Shell is correct that while this court held on the limited record before it that
“Shell has not demonstrated that Greenpeace USA was directly involved in either the New
Zealand or Finnish incidents,” this court did not find that Greenpeace USA was not directly
involved with those incidents. Prelim. Inj. Order at 14.
13

Prelim. Inj. Order at 5-7.

14

Greenpeace USA’s Reply at 2, n.1 (Docket 93) [hereinafter 12(b)(1) Reply].

15

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995).

16

Id.

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Zone (“EEZ”). 17 Second, a party seeking to invoke maritime jurisdiction must show “a
substantial relationship between the activity giving rise to the incident and traditional
maritime activity.” 18 In this regard, “a court must assess the general features of the type
of incident involved to determine whether such an incident is likely to disrupt [maritime]
commercial activity.” 19
The underlying bases of each of Shell’s causes of action in its Second Amended
Complaint are allegations that Greenpeace USA has interfered, and intends in the
future to interfere, with the free passage of Shell’s owned and contracted vessels and its
planned Arctic drilling activities.

Greenpeace USA has separately analyzed subject

matter jurisdiction with respect to the past alleged tortious conduct in the Gulf of Mexico,
New Zealand, and Finland, and the alleged future threatened conduct within the United
States EEZ and at land-based facilities. As noted above, this court will not decide the
full scope of subject matter jurisdiction with respect to the alleged past tortious conduct
by Greenpeace USA in other locations at this time. Rather, such analysis would be
more effectively undertaken if and when a greater factual record with respect to
Greenpeace USA’s role in those actions is before the court. But with respect to Shell’s
17

Myhran v. Johns-Manville Corp, 741 F.2d 1119, 1120 (9th Cir. 1984). See also Victory
Carriers, Inc. v. Law, 404 U.S. 202, 205 (1971) and the cases cited therein. Under the
Admiralty Extension Act, 46 U.S.C. § 30101, damages to shore structures and injuries on land
may also fall within admiralty jurisdiction, so long as the injury is caused by a vessel on
navigable water. See generally T. Schoenbaum, Admiralty and Maritime Law (5th Ed.) § 3-4
[hereinafter Schoenbaum].
18

Sisson v. Ruby, 497 U.S. 358, 364 (1990). See also Exec. Jet Aviation, Inc. v. City of
Cleveland, 409 U.S. 249, 268 (1972).
19

Sisson, 497 U.S. at 363. See also Jerome B. Grubart, Inc., 513 U.S. at 534 (“Second, a court
must determine whether ‘the general character’ of the ‘activity giving rise to the incident’ shows
a ‘substantial relationship to traditional maritime activity.’”) (citing Sisson, 497 U.S. at 365, 364,
and n.2).

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allegations of threatened future tortious conduct as set forth in the five causes of action
of the Second Amended Complaint, this court finds that admiralty jurisdiction clearly
applies to allegations of such misconduct directed toward Shell’s vessels when they are
in transit and unattached to the subsoil or seabed and within the United States EEZ. 20
Greenpeace USA asserts that the Noble Discoverer and the Kulluk do not fall
under admiralty jurisdiction because they are drilling rigs, and have no traditional
maritime purpose. 21 But these movable drilling rigs are vessels, 22 as to which admiralty
jurisdiction applies to claims of intentional tortious acts, at least while such vessels are
underway to a drilling operation. 23 Further, admiralty jurisdiction would extend to aircraft
to the extent such aircraft were being used for traditional maritime activity, such as
bringing workers and supplies to off-shore vessels. 24
20

See generally Shell’s Opp. to 12(b)(1) Mot. at n.22 through 26 (Docket 90) [hereinafter
12(b)(1) Opp.]. Many of the cited cases there support admiralty jurisdiction, but some—such as
Pelican Marine Carriers v. City of Tampa, 791 F. Supp. 845 (M.D. Fla. 1992)—simply apply
maritime law without addressing jurisdiction, while others—such as Bankers Life Ins. Co. v.
Scurlock Oil Co., 447 F.2d 997 (5th Cir. 1971)—have considerably less relevance to the matter
at hand. In any event, this court finds that the exercise of admiralty jurisdiction over tort actions
that meet the two-part test described supra is well-settled.

21

12(b)(1) Reply at 12.

22

See generally Offshore Co. v. Robinson, 266 F.2d 769, 779-80 (5th Cir. 1959) (a special
purpose vessel, a floating drilling platform, considered a vessel so as to confer admiralty
jurisdiction). See also In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, 808
F.Supp.2d 943, 949 (E.D. La. 2011); Schoenbaum § 3-6 at 157.

23

After the drilling rig is secured to the seabed, the Outer Continental Shelf Lands Act, 43.
U.S.C. § 1331 et seq., may instead serve as the primary source of subject matter jurisdiction.
See discussion, infra at 11-12.

24

See Offshore Logistics v. Tallentire, 477 U.S. 207, 218-19 (1986) (“admiralty jurisdiction is
appropriately invoked here under traditional principles because the [helicopter] accident
occurred on the high seas and in furtherance of an activity bearing a substantial relationship to
traditional maritime activity … the ferrying of passengers from an ‘island,’ albeit an artificial one,
to the shore.”).
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With respect to Shell’s fifth cause of action, interference with maritime navigation,
Shell cites to the federal statutes, 33 U.S.C. § 1601 et seq., which codify the
COLREGS, as a separate basis for federal jurisdiction in addition to admiralty
jurisdiction. This court was unpersuaded that these provisions serve as an independent
basis to establish federal subject matter jurisdiction separate and apart from admiralty
jurisdiction. Rather, this court concurs with the analysis of the import of the COLREGS
in the recent District Court decision of The Institute of Cetacean Research v. Sea
Shepherd Conservation Society. 25 The court there readily found admiralty jurisdiction
applicable to the plaintiff’s tort claims regarding alleged tortious conduct on the high
seas that arose from traditional maritime activities. The COLREGS were discussed not
as a separate basis for subject matter jurisdiction, but in the context of the plaintiff’s safe
navigation claim, with the court noting that “admiralty courts in the United States use the
COLREGS to determine fault in maritime collision cases.” 26
B. OCSLA Jurisdiction
43 U.S.C. § 1349(b)(1) establishes federal jurisdiction over OCSLA disputes as
follows:
Except as provided in subsection (c) of this section, the district
courts of the United States shall have jurisdiction of cases and
controversies arising out of, or in connection with (A) any operation
conducted on the outer Continental Shelf which involves
exploration, development, or production of the minerals, of the
subsoil and seabed of the outer Continental Shelf, or which
involves rights to such minerals, or (B) the cancellation,
25

2012 WL 958545, *14 (W.D. Wash. Mar. 19, 2012).

26

Id. at *14 (citing Crowley Marine Servs. v. Maritrans, Inc., 530 F.3d 1169, 1172 (9th Cir.
2008)).
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suspension, or termination of a lease or permit under this
subchapter. Proceedings with respect to any such case or
controversy may be instituted in the judicial district in which any
defendant resides or may be found, or in the judicial district of the
State nearest the place the cause of action arose.
43 U.S.C. § 1333(a)(1) defines the physical areas of the OCS to which the
OCSLA applies, as it provides in pertinent part:
The Constitution and laws and civil and political jurisdiction of the
United States are extended to the subsoil and seabed of the outer
Continental Shelf and to all artificial islands, and all installations and
other devices permanently or temporarily attached to the seabed,
which may be erected thereon for the purpose of exploring for,
developing, or producing resources therefrom, or any such
installation or other device (other than a ship or vessel) for the
purpose of transporting such resources, to the same extent as if the
outer Continental Shelf were an area of exclusive Federal
jurisdiction located within a State . . .
Thus, Section 1333(a)(1) establishes a situs requirement that extends OCSLA
jurisdiction to the subsoil and seabed of the OCS and artificial islands, installations, or
other devices that are permanently or temporarily attached to the seabed in order to
explore for, develop, or produce resources from the OCS. 27 Accordingly, with respect to
the operations of Shell’s drilling rigs after they are temporarily attached to the seabed at

27

This situs limitation in § 1333 (a) does not apply in cases involving the Longshore and Harbor
Workers’ Compensation Act that arise under 43 U.S.C. § 1333(b). Instead, in such cases, “the
OCSLA extends coverage to an employee who can establish a substantial nexus between his
injury and his employer’s extractive operations on the Outer Continental Shelf,” even if the injury
did not take place on the OCS. But § 1333(b) is inapplicable in this action. Pac. Operators
Offshore, LLP v. Valladolid, 132 S. Ct. 680, 684 (2012). But cf. In re Oil Spill, 747 F.Supp. 2d
704 at 708 n.1 (“neither the Supreme Court nor the Fifth Circuit has held that the [§ 1333] situs
requirement has to be satisfied for jurisdiction to be proper under § 1349” of the OCSLA).
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the OCS, the OCSLA, and not admiralty law, is the primary source of subject matter
jurisdiction over Shell’s claims of threatened torts. 28
Distinct from the question of subject matter jurisdiction conferred by the OCSLA
is the question of the applicable law to apply to disputes within OCSLA jurisdiction. All
law applicable to the OCS is federal law, but to fill the substantial “gaps” in the coverage
of federal law, the OCSLA borrows the “applicable and not inconsistent” laws of the
adjacent state as surrogate federal law. 29

Thus, a tort action that did not bear a

significant relationship to traditional maritime activities that involved events occurring at
an OCS drilling site would be governed by federal law, the content of which could be
borrowed from the law of the adjacent state. 30
Greenpeace USA asserts that the OCSLA only accords subject matter
jurisdiction after operations have commenced on the OCS. 31

It maintains that the

“OCSLA provides no basis for an action for preparing an operation on the OCS, and

28

“Admiralty law generally would not apply to the lands and structures covered by OCSLA.”
Offshore Logistics, 477 U.S. at 219 (citing Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352,
359 (1969)).

29

43 U.S.C. § 1333(a)(2); Rodrigue, 395 U.S. at 355-59.

30

See Gulf Offshore Co. v. Mobil Oil Corp, 453 U.S. 473, 480-81 (1981); Union Tex. Petroleum
Corp. v. PLT Eng’g, Inc., 895 F.2d 1043, 1047 (5th Cir.) (in resolving choice of law issue, the
court held that “for adjacent state law to apply as surrogate federal law under OCSLA, three
conditions are significant. (1) The controversy must arise on a situs covered by OCSLA (i.e. the
subsoil, seabed, or artificial structures permanently or temporarily attached thereto). (2) Federal
maritime law must not apply of its own force. (3) The state law must not be inconsistent with
Federal law.”).
31

12(b)(1) Reply at 16.

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provides no basis for a cause of action when nothing has yet occurred, or before the
operation on the OCS has even begun.”32 In this regard, Shell candidly notes that
[t]he full reach of OCSLA jurisdiction in the context of this litigation
cannot be determined with certainty based upon existing cases.
Shell is aware of no case considering the jurisdictional application
of OCSLA in the context of torts committed by a party with the
intent of preventing an OCS leaseholder from accessing and
exploring upon its leases, as is the case here. 33
Yet the OCSLA was intended to facilitate the orderly development of resources on the
Outer Continental Shelf. 34 Consistent with that intent, this court finds that to the extent
that the surrogate law borrowed from Alaska pursuant to 43 U.S.C. § 1333(a)(2)(A)
would recognize a cause of action for a threatened tort at a prospective drilling site
subject to OCSLA jurisdiction, the OCSLA confers subject matter jurisdiction with
respect to such threatened torts before such drilling operations have commenced.
For the foregoing reasons, this court concludes that it has subject matter
jurisdiction in the EEZ over Shell’s tort claims pursuant to admiralty jurisdiction as well
as federal question jurisdiction under the OCSLA, with the applicable jurisdiction
depending on the situs of the alleged prospective tort and the nature of the alleged
tortious activity.
C. Diversity Jurisdiction
Pursuant to 28 U.S.C. § 1332(a), a federal court has diversity jurisdiction of all
civil actions in which there is complete diversity of citizenship among the parties and the
32

Id.

33

12(b)(1) Opp. at 13, n.45.

34

See, e.g., Schoenbaum § 3-9 at 172-173.

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amount in controversy exceeds the sum or value of $75,000. Greenpeace USA does
not dispute that it is incorporated in a different state from Shell. 35 And Shell’s Second
Amended Verified Complaint expressly alleges that the amount in controversy exceeds
$75,000. 36 Accordingly, diversity jurisdiction has now been adequately pled.
But Greenpeace USA asserts that if Shell obtains the preliminary injunctive relief
it seeks, “then none of the other alleged speculative damages will come to fruition.” 37 In
its response, Shell cites to United States Supreme Court precedent that when a party
seeks injunctive relief, “it is well established that the amount in controversy is measured
by the value of the object of the litigation.” 38 In other words, “the test for determining the
amount in controversy is the pecuniary result to either party which the judgment would
directly produce.”39 Here, the object of the litigation is Greenpeace USA’s alleged intent
to interfere with Shell’s planned exploration activities for this summer in the Arctic.
Shell’s Second Amended Complaint asserts that its drilling plans for the limited 2012
Arctic summer season have been “an enormous and costly effort.” 40 And “a complaint
that a plaintiff files in federal court against a diverse defendant invokes diversity
jurisdiction unless it appears to a ‘legal certainty’ that the amount in controversy is less
35

Mem. in Support of 12(b)(1) Mot. at 12 (Docket 69) [hereinafter 12(b)(1) Mem.].

36

Second Am. Compl. at ¶ 13.

37

12(b)(1) Mem. at 12.

38

12(b)(1) Opp. at 18 (Docket 90) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S.
333, 347 (1977)). See also Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002); In re Ford
Motor Co./Citibank (South Dakota), N.A., 264 F.3d 952, 958 (9th Cir. 2001).
39

In re Ford Motor Co., 264 F.3d at 958.

40

Second Am. Compl. at ¶ 19.

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than $75,000.”41

No such showing has been made here so as to defeat diversity

jurisdiction. Accordingly, this court has diversity jurisdiction to consider the causes of
action that are cognizable under Alaska law as pled in Shell’s complaint. 42 Specifically
with regard to Shell’s request for injunctive relief at the aviation facilities on the North
Slope, this court finds that it has subject matter jurisdiction over such claims based on
diversity of citizenship.
D. Is There a Case or Controversy?
Greenpeace USA asserts that this court lacks subject matter jurisdiction because
there was no actual controversy between the parties at the time the complaint was
filed. 43 It asserts that there is no justiciable controversy that is sufficiently definite and
concrete so as to warrant relief. As this court previously noted, this argument is closely
related to the requirement that a plaintiff seeking a preliminary injunction must establish
that there is a likelihood of irreparable harm in the absence of preliminary relief. 44 As
this court had concluded that there is such likelihood, 45 it follows that there is a case or
controversy that is justiciable before the court.

41

Inst. of Cetacean Research, 2012 WL 958545 at *7 (citing Crum v. Circus Circus Enters., 231
F. 3d 1129, 1131 (9th Cir. 2000)).
42

Wright & Miller, Federal Practice & Procedure § 3602.1 at 121, 132 (2009). Given that this
court has federal subject matter jurisdiction with respect to the EEZ under admiralty jurisdiction
and the OCSLA, as discussed herein, this court need not determine to what extent diversity
jurisdiction under state law would apply to an action to enjoin conduct within the EEZ.

43

Id. at 33.

44

Prelim. Inj. Order at 8.

45

Id. at 20.

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For the foregoing reasons, Greenpeace USA’s motion to dismiss for lack of
subject matter jurisdiction under Civil Rule 12(b)(1) is denied.
II.

Greenpeace USA’s Rule 12(b)(6) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) permits a party to seek dismissal of an

action for failure to state a claim for which relief can be granted. Greenpeace USA
asserts that Shell has failed to state a claim for each of its five causes of action,
warranting dismissal of its Second Amended Complaint.
In evaluating Shell’s claims for purposes of Greenpeace USA’s Rule 12(b)(6)
motion, this court applies the “facial plausibility” pleading standard as analyzed by the
Supreme Court in Ashcroft v. Iqbal. 46 Under that standard, to survive a Rule 12(b)(6)
motion to dismiss “a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim for relief that is plausible on its face.’” 47 This plausibility standard
requires “more than a sheer possibility” of entitlement to relief, though it need not rise to
the level of probability. 48 “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient. 49 But “[w]hen there are
well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.”50 Making such a

46

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

47

Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

48

Id. (citing Twombly, 550 U.S. at 556).

49

Id. (citing Twombly, 550 U.S. at 555).

50

Id. at 679.

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determination is “a context-specific task that requires the . . . court to draw on its judicial
experience and common sense.”51
One of Greenpeace USA’s recurring arguments for dismissal is its assertion that
Shell’s complaint and the pleadings “demonstrate that Greenpeace USA, the defendant
in this action, had no involvement in any of the harms Shell has alleged it has incurred
in the past.” 52 But as this court has previously found, at this preliminary stage of the
litigation, the extent, if any, of Greenpeace USA’s involvement in the New Zealand and
recent Scandinavian actions is as yet undetermined. 53 For purposes of a Rule 12(b)(6)
motion to dismiss, filed before discovery has been undertaken, this court is to assume
the veracity of Shell’s allegations that Greenpeace USA has acted in concert with other
Greenpeace organizations in committing past tortious acts against Shell in other
countries. 54 And in any event, this court has previously found that Greenpeace USA is
likely to engage in future tortious activities against Shell in pursuit of its stated goal of
stopping Shell’s Arctic exploration—activities that could include blockading and
boarding Shell-owned or Shell-contracted vessels that are in United States waters and
en route to or operating in the Arctic. 55

51

Id. (citation omitted).

52

Greenpeace USA’s Mem. in Support of 12(b)(6) Mot. at 7 (Docket 76) [hereinafter 12(b)(6)
Mem.].
53

See supra n.12.

54

See, e.g., Second Am. Compl. at ¶¶ 9, 10, 37, 45, 49, 51, 56, 61, and 63.

55

Prelim. Inj. Order at 17.

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28 U.S.C. § 1333 provides that when a court hears a case pursuant to its
admiralty or maritime jurisdiction, it “sav[es] to suitors in all cases all other remedies to
which they are otherwise entitled.” Based on this court’s determinations set forth above
on subject matter jurisdiction, this court will evaluate the first four of Shell’s asserted
causes of action under both federal maritime law, pursuant to the court’s admiralty
jurisdiction, and Alaska law, pursuant to the court’s diversity and OCSLA jurisdiction.
Shell’s fifth cause of action, interference with maritime navigation, will be evaluated as
pled under federal maritime law. 56
A. Nuisance
Shell’s Second Amended Complaint alleges that Greenpeace USA has
“intentionally and knowingly obstructed and interfered with the free passage and
operation of the Noble Discoverer, the Nordica, the Fennica and the Harvey Explorer,”
and “threatens to further tortiously, unlawfully and substantially interfere with Shell’s
exercise of its OCSLA lease rights, and its rights of free passage upon navigable waters
without obstruction or interference.”57 Shell asserts that these actions constitute both a
public and a private nuisance. 58

56

See Second Am. Compl. at ¶ 57. See also discussion, supra at 9.

57

Id. at ¶¶ 36, 35.

58

Id. at ¶¶ 34-40 (First Cause of Action).

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1) Public Nuisance
Shell asserts that federal courts applying maritime law have recognized public
nuisance as a cause of action. 59 Greenpeace USA maintains that “the Supreme Court
has never recognized a cause of action for federal maritime public nuisance, and
Congress has never legislated the same.”60 Greenpeace USA also asserts that even if
such a claim were cognizable, Shell has failed to state such a claim based on the
Restatement (Second) of Torts (“Restatement") definition of that tort. 61

And

Greenpeace USA argues that Shell cannot make a claim based on “potential future
nuisances.” 62
Shell asserts that Alaska state law also recognizes a cause of action for public
nuisance claims. In Maier v. City of Ketchikan, the Alaska Supreme Court cited to both
Prosser on Torts and the Restatement in holding that,
[t]o establish a claim based on public nuisance, it is not sufficient
merely to show that one was injured by the creation or maintenance
of some physical condition which would cause injury to a person
coming into contact with it. It must also be shown that the condition

59

Shell’s Opp. to 12(b)(6) Mot. at 10-11 (Docket 91) [hereinafter 12(b)(6) Opp.]. See Nat’l Sea
Clammers Assoc. v. City of New York, 616 F.2d 1222, 1235 (3d Cir. 1980) (recognizing federal
common law tort of nuisance and adopting Restatement (Second) of Torts definition) vacated on
grounds that private claims for water pollution public nuisance were preempted by federal
statutes sub nom. Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Assoc., 453 U.S. 1
(1981); S. C. Loveland, Inc. v. E. W. Towing, Inc., 608 F.2d 160, 167 (5th Cir. 1979) (using
Restatement definition). But see State of La. ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019,
1030 (5th Cir. 1985) (declining to recognize private cause of action for public nuisance) (cited in
12(b)(6) Opp. at 10 n.40).
60

Greenpeace USA’s Reply to Opp. to 12(b)(6) Mot. at 3 (Docket 94) [hereinafter 12(b)(6)
Reply].
61

Id. at 3-4.

62

Id. at 5.

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would be injurious to those who came in contact with it in the
exercise of a public or common right. 63
For purposes of this motion, this court will assume that Restatement standard for
a public nuisance would apply under both federal maritime law and state law. Section
821B of the Restatement defines a public nuisance as “an unreasonable interference
with a right common to the general public.” 64 It includes among those “circumstances
that may sustain a holding that an interference with a public right is unreasonable . . .
conduct [that] involves a significant interference with the public health, the public safety,
the public peace, the public comfort or the public convenience.” 65
Shell has alleged that Greenpeace USA’s intended actions would create a public
nuisance “because of the inherent public dangers associated with” Greenpeace USA’s
alleged threatened tortious interference with Shell’s OCS leases and Shell’s “rights of
free passage upon navigable waters without obstruction or interference.” 66

Shell

asserts that Greenpeace USA’s direct action campaign “threatens to impair the public
right of navigation, the public right to free commerce, and will create risks of collision,
allisions, and injuries to person and property and the environment.” 67

But Shell’s

complaint alleges an “international direct action campaign” directed solely against

63

403 P.2d 34, 38 (Alaska 1965), overruled on other grounds by Johnson v. City of Fairbanks,
583 P.2d 181, 183 n.4 (Alaska 1978).
64

Restatement (Second) of Torts § 821B.

65

Id.

66

Second Am. Compl. at ¶¶ 38, 35 (Docket 86).

67

12(b)(6) Opp. at 13 (referencing Second Am. Compl. at ¶¶ 4,5, 19 and 35).

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Shell. 68 To constitute a public nuisance, “[t]here must be some interference with a
public right.” 69 As alleged in Shell’s complaint, Greenpeace USA’s alleged past and
future tortious conduct is not intended to, nor designed to, significantly and directly
affect a public right. 70 While there could be some incidental interference with the rights
of third parties to free navigation if Greenpeace USA’s alleged future tortious conduct
were to occur, this court finds that the complaint as pled does not state a plausible
cause of action for a public nuisance. In this regard, this court considers the public
highways and navigable rivers, where courts have found obstructions to constitute
public nuisances, to be substantially different from the vast navigable waters within the
territorial sea and the EEZ. Accordingly, Greenpeace USA’s motion to dismiss Shell’s
public nuisance claim is granted.
2) Private Nuisance
Shell also asserts a claim for private nuisance in its Second Amended
Complaint. Specifically, it asserts that Greenpeace USA’s past and threatened actions
“constitute a private nuisance because the dangers inherent in their direct action
campaign will be specifically borne by Shell and will unreasonably interfere with Shell’s

68

Second Am. Compl. at 2, ¶ 4.

69

Restatement (Second) of Torts § 821B at Comment g (emphasis added).

70

In this regard, Shell’s Opposition refers to paragraph 35 of the complaint, and asserts that the
public right alleged is the “free right of passage upon navigable waters without interference.”
12(b)(6) Opp. at 14. But that paragraph refers specifically to “Shell’s exercise of its OCSLA
lease rights, and its rights of free passage upon navigable waters without obstruction or
interference”—not the public’s right to free passage. Second Am. Compl. at ¶ 35 (emphasis
added).
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use of its vessels and leases.” 71 Shell candidly acknowledges that “Federal courts in
admiralty have not yet expressly recognized a private nuisance cause of action,
presumably due to the requirement that there be an unreasonable interference with a
land or real property interest.”72 But Shell asserts that its rights in its OCS leases are a
uniquely federal, protectable private property interest, and “the exercise of this private
right is currently under threat of a substantial and unreasonable interference by
Greenpeace USA.”73
Greenpeace USA asserts that federal maritime law does not apply to Shell’s
OCS drilling contracts because those contracts are not maritime contracts. 74
Greenpeace USA cites to Union Texas Petroleum Corp. v. PLT Engineering, Inc. 75
There, the Fifth Circuit held that contract disputes relating to the construction of an
underwater gathering line on the OCS were “the subjects of oil and gas exploration and
production” and were not “traditionally maritime activities.” 76 As such, that court held
that the OCSLA, and by extension, Louisiana state law, applied to that particular dispute
instead of maritime law. But the Fifth Circuit has also noted that “[o]il and gas drilling on
navigable waters aboard a vessel is recognized to be maritime commerce.”77
71

Second Am. Compl. at ¶ 39.

72

12(b)(6) Opp. at 16.

73

Id. at 17.

74

12(b)(6) Reply at 9.

75

Id. at 8 (citing Union Tex. Petroleum Corp., 895 F.2d 1043 (5th Cir. 1990)).

76

Union Tex. Petroleum Corp., 895 F.2d at 1049.

77

Id. at 1049 (citing Theriot v. Bay Drilling Corp., 783 F.2d 527 (5th Cir.1986)).

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This court need not determine at this juncture whether federal maritime law or
state law, through the OCSLA, 78 applies to Shell’s cause of action for a private
nuisance, as this court finds that under either construct, the legal analysis would be
consistent with the Restatement and thus substantially the same. 79

Under general

maritime law, federal courts that are evaluating tort claims in the absence of a federal
statute or established federal rule defining the tort have often looked to the Restatement
for guidance. 80 Section 821D of the Restatement defines a private nuisance as “a
nontrespassory invasion of another’s interest in the private use and enjoyment of
land.”81 Alaska’s private nuisance law is comparable. Specifically, AS 09.45.230(a)
authorizes a person to “bring a civil action to enjoin or abate a private nuisance,” and
AS 09.45.255 defines a nuisance as “a substantial and unreasonable interference with

78

Section 1333(a)(2) of the OCSLA imports a state’s substantive law as “surrogate” law when
not inconsistent with Federal law.

79

Greenpeace USA asserts the OCSLA requires “there must have been some violation of the
code provision prior to initiating an action.” 12(b)(6) Reply at 7 (emphasis in original). This
argument may be a reference to 43 U.S.C. § 1349(a), which applies to citizen suits that allege a
violation of the OCSLA and its regulations—a topic not at issue in this litigation. The applicable
jurisdictional section of the OCSLA in this case is 43 U.S.C. § 1349(b), which accords
jurisdiction to the district court over “cases and controversies arising out of, or in connection
with” OCS development. This court does not read that statutory provision to preclude the
court’s exercise of jurisdiction to accord injunctive relief for threatened torts when warranted.
See also discussion, supra at 11-12.

80

See, e.g., Conticarriers & Terminals, Inc. v. Delta Bulk Terminal, 807 F.Supp. 1252, 1255
(M.D. La. 1992) (“In fashioning an appropriate maritime rule where none exists, federal courts
also look to the Restatement of the Law.”); Lewis v. Timco, Inc., 716 F.2d 1425, 1428 (5th Cir.
1983) (“maritime law traditionally resists doctrinal change that might balkanize its uniformity and
generality.”).
81

Restatement (Second) of Torts § 821D. See also id. at § 822.

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the use or enjoyment of real property, including water.” The Alaska Supreme Court has
also cited to the Restatement when reviewing claims of private nuisance. 82
Restatement Section 829A states that “an intentional invasion of another's
interest in the use and enjoyment of land is unreasonable if the harm resulting from the
invasion is severe and greater than the other should be required to bear without
compensation.” 83 And Section 830 states that an intentional invasion of another’s land
is “unreasonable if the harm is significant and it would be practicable for the actor to
avoid the harm in whole or in part without undue hardship.” 84
Here, Greenpeace USA’s alleged intentional interference with Shell’s access to
and use of its OCS lease sites is unreasonable under Section 829A, as it could result in
a harm that is “severe and greater than [Shell] should be required to bear without
compensation.” 85 And applying Section 830, it is certainly practicable for Greenpeace
USA to avoid sending its activists onto navigable waters to board, block, or blockade
Shell vessels en route to or at the OCS lease sites.
This court concurs with Shell’s assertion that its possessory interest in its OCS
leases constitutes an interest in land as to which Shell has alleged a viable cause of
action for a private nuisance under either general maritime law or Alaska law, through
the OCSLA. But with respect to Greenpeace USA’s alleged interference with Shell’s

82

See Parks Hiway Enterprises, LLC v. CEM Leasing, Inc., 995 P.2d 657, 666 (Alaska 2000)
(citing Restatement (Second) of Torts §§ 822A, 822B, 834).
83

Restatement (Second) of Torts § 829A.

84

Id. at § 830.

85

Id. at § 829A.

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use of its vessels, a cause of action for private nuisance cannot be maintained, as the
vessels do not constitute real property.
In light of the foregoing, Greenpeace USA’s motion to dismiss is granted with
respect to Shell’s public nuisance claim and its private nuisance claim with respect to its
vessels. Shell has adequately pled that Greenpeace USA’s alleged interference with
Shell’s access to and use of its interests in its OCS leases constitute a private nuisance
under general maritime law and the OCSLA, including by extension Alaska law.
Accordingly, Greenpeace USA’s motion to dismiss this component of this cause of
action is denied.
B. Tortious Interference with Contractual Relations
Shell’s second cause of action in its Second Amended Complaint asserts that
Greenpeace USA has interfered with Shell’s contracts for the transport to and use of the
Noble Discoverer, the Nordica and the Fennica, and other vessels in the Arctic Ocean. 86
And Shell maintains that Greenpeace USA “has improperly interfered with . . . Shell’s
ability to comply with the conditions of its oil and gas leases and other contracts,
pertaining to [the] Chukchi Sea and the Beaufort Sea oil and gas exploration on Shell’s
United States OCS leases.” 87 Shell also alleges that Greenpeace USA is intentionally
and knowingly threatening to continue to interfere with Shell’s contracts relating to the
exploration of its OCS leases. 88

86

Second Am. Compl. ¶ 43.

87

Id. at ¶ 44.

88

Id. at ¶¶ 43-44

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As it did with respect to Shell’s private nuisance claim, Greenpeace USA asserts
that federal maritime law does not apply to Shell’s OCS drilling contracts because those
contracts are not maritime contracts. 89 But this court finds that federal maritime law
would apply with respect to Shell’s contracts to use third-party vessels during its
intended drilling activities, even if the OCSLA were to apply with respect to Shell’s
leasehold contracts on the OCS.
Applying general maritime law, this court turns to the Restatement for
guidance. 90 The Restatement provides that
[o]ne who intentionally and improperly interferes with the
performance of a contract … between another and a third person
by inducing or otherwise causing the third person not to perform the
contract, is subject to liability to the other for the pecuniary loss
resulting to the other from the failure of the third person to perform
the contract. 91
The parties agree 92 that a plaintiff seeking to establish a claim of tortious
interference with a contract under Alaska law must show: “(1) an existing contract
between it and a third party; (2) defendant’s knowledge of the contract and intent to
induce a breach; (3) breach; (4) wrongful conduct of the defendant causing the breach;
(5) damages; and (6) absence of privilege or jurisdiction for the defendant’s conduct.”93

89

12(b)(6) Reply at 9.

90

See, e.g., Int’l Marine and Indus. Applicators, Inc. v. Avondale Indus., Inc., 1994 WL 71287
(E.D. La. Feb. 28, 1994) (applying Restatement to claim of tortious interference rather than state
law for uniformity).
91

Restatement (Second) of Torts § 766.

92

12(b)(6) Opp. at 17; 12(b)(6) Reply at 9.

93

K. & K. Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 716 (Alaska 2003).

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As the Restatement’s definition of the tort is by and large subsumed within Alaska’s
definition, a single analysis of this tort under Alaska law for purposes of this motion is
appropriate.
Shell’s allegations of Greenpeace USA’s tortious interference with Shell’s
contractual relations with third parties contain very little factual information in support of
this claim. Shell has not alleged any of the specifics of its contractual obligations with
third parties, and has not explained how those contractual obligations have been
impaired by Greenpeace USA’s past alleged conduct against Shell.

Nor has Shell

explained how future alleged tortious conduct by Greenpeace USA, such as blocking or
blockading Shell’s contracted vessels, including its drilling rigs, would interfere with
Shell’s contractual relationships. In short, Shell’s pleading of tortious interference with
contracts can be characterized as “threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements,” which the United States Supreme
Court has held “do not suffice” in the face of a motion to dismiss. 94 Shell correctly
maintains that “[n]otice pleading does not require the incantation of magic words.” 95
And when reviewing a motion to dismiss, a court can draw “reasonable inferences” from
the factual content before it. 96 But this court finds that Shell’s claims of both past and
threatened future tortious interference with its contractual relations have been
inadequately pled such that dismissal of this claim on the record before this court at this
time is warranted.
94

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

95

12(b)(6) Opp. at 19.

96

See Iqbal, 556 U.S. at 678.

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C. Trespass and Trespass to Chattels
Shell’s third cause of action alleges that Greenpeace USA “has boarded and
occupied the Noble Discoverer, the Nordica, the Fennica, and the Harvey Explorer.” 97 It
also alleges that Greenpeace USA
threatens to commit further trespasses to stop, delay, or interfere
with Shell’s exploration activities in the Arctic Ocean on its United
States OCS leases, by boarding vessels or facilities, chaining or
securing persons to anchors, vessels, or facilities, or by otherwise
physically occupying, contacting, damaging, or impeding Shell’s
possession, use, and operation of vessels and facilities[.] 98
Shell asserts that “[t]hese activities by Greenpeace are ultra hazardous, and constitute
trespass or trespass to chattels.” 99
The parties agree that Shell’s cause of action for trespass and trespass to
chattels should be evaluated under the Restatement standard under both federal
maritime law and Alaska law. 100 This approach is consistent with the opinions of the
Fifth Circuit, which has held “that general common law and in particular the
Restatement (Second) of Torts should control to determine the law of maritime
trespass, in order to promote uniformity in general maritime law.” 101 As Alaska, too, has

97

Second Am. Compl. at ¶ 49.

98

Id. at ¶ 49.

99

Id. at ¶ 50.

100

12(b)(6) Mem. at 17; 12(b)(6) Opp. at 20; 12(b)(6) Reply at 10, 18.

101

Marastro Compania Naviera, S.A. v. Canadian Mar. Carriers, Ltd., 959 F.2d 49, 53 (5th Cir.
1992). See also Prelim. Inj. Order at 9.

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adopted the Restatement definition of trespass, 102 this court will apply the Restatement
definitions to Shell’s trespass and trespass to chattels claims.
1) Trespass to Chattels
The Restatement defines trespass to chattels as intentionally “dispossessing
another of the chattel” or intentionally “using or intermeddling with a chattel in another’s
possession.” 103 But the Restatement adds that one who commits a trespass to chattels
is liable to the possessor of the chattel only if the trespasser (1) dispossesses the
possessor of the chattel; (2) impairs the condition, quality, or value of the chattel; (3)
deprives the possessor of the use of the chattel for a substantial period of time; or (4)
causes bodily harm to the possessor, or harm to “some person or thing in which the
possessor has a legally protected interest.” 104
The Restatement Comment on deprivation of use, the basis of liability most
relevant here, states that the deprivation of use necessary to establish liability cannot be
“mere[ly] momentary or theoretical”; it “must be for a time so substantial that it is
possible to estimate the loss caused thereby.” 105 An accompanying illustration states
that the requisite substantial time would be met when a trespasser had deprived a

102

See St. Paul Church, Inc. v. Bd. of Trustees of Alaska Missionary Conf. of United Methodist
Church, Inc., 145 P.3d 541, 558 (Alaska 2006) (citing to the Restatement and prior Alaska
Supreme Court decisions relying on the Restatement). And, to the extent jurisdiction rests
under the OCSLA, Alaska law would apply to this analysis pursuant to 43 U.S.C. § 1333(a).

103

Restatement (Second) of Torts § 217. See also Prentzel v. State, Dept. of Public Safety, 169
P.3d 573, 583 and n.19 (Alaska 2007) (citing Restatement (Second) of Torts § 217).

104

Restatement (Second) of Torts § 218.

105

Id. at § 218 (Comment on Clause (c)).

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possessor of the use of his or her car for one hour. 106
Much of Greenpeace USA’s argument is focused on its assertion that it had no
involvement in the Finnish or New Zealand incidents. But for purposes of this motion to
dismiss, the factual allegations of Shell’s Second Amended Complaint are accepted as
true, and adequately allege that Greenpeace USA was acting in concert with other
Greenpeace organizations with respect to those incidents. 107 More to the point, Shell
has adequately pled that Greenpeace USA intends to commit future trespasses to
Shell’s chattels, and specifically its owned and contracted vessels, so as to state a
cause of action for this threatened future tort. 108

Accordingly, Greenpeace USA’s

motion to dismiss this cause of action is denied.
2) Trespass to Land
Shell’s Second Amended Complaint also asserts a claim for trespass to land. It
asserts that Greenpeace USA’s threatened actions of “chaining or securing persons to .
. . facilities, or by otherwise physically occupying, contacting, damaging, or impeding
Shell’s possession, use, and operation of . . . facilities whether located at docks in
Seattle, Washington, Dutch Harbor, Alaska or elsewhere” would constitute a trespass
upon these real property interests. 109 Its complaint specifically identifies its planned
aircraft operations originating from Barrow and Deadhorse, Alaska. 110
106

Id. at § 218 (Comment on Clause (c), illustration 4).

107

See Second Am. Compl. at ¶¶ 48-51.

108

See, e.g., id. at ¶¶ 28, 48-52.

109

Id. at ¶ 49.

110

Id. at ¶ 18.

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The Restatement creates liability for trespass to land where an individual
“intentionally . . . enters land in the possession of the other, or causes a thing or a third
person to do so,” regardless “of whether he thereby causes harm to any legally
protected interest of the other[.]”111
Greenpeace USA argues that neither Shell’s complaint nor its response to the
Rule 12(b)(6) motion to dismiss “address the trespassory actions it speculates that
Greenpeace USA would take on its Barrow and prospective Deadhorse facilities[.]” 112
Greenpeace USA does not dispute that an entry onto Shell’s leased real property in
Barrow and Deadhorse would constitute a trespass to land under the Restatement, but
it argues that Shell’s request for injunctive relief to preclude a threatened trespass to
these aircraft facilities is “overbroad and unsupported[.]” 113 Citing Iqbal, Greenpeace
USA asserts that Shell’s claims regarding its Barrow and Deadhorse aviation facilities
do not have a sufficient factual basis to state a claim under Rule 12(b)(6). 114 But this
court finds that Shell’s Second Amended Complaint sets forth adequate factual
allegations so as to state a cause of action for a threatened trespass with respect to
these aviation facilities. 115 Accordingly, Greenpeace USA’s motion to dismiss for failure
to state a claim of a threatened trespass at these aviation facilities is denied.

111

Restatement (Second) of Torts § 158.

112

12(b)(6) Reply at 17.

113

12(b)(6) Reply at 17.

114

Id. at 16-17.

115

See, e.g., Second Am. Compl. at ¶¶ 18, 19, 20, 21, 23.

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Shell also asserts that it has a real property interest in its OCS leases, and that
impeding Shell’s access to those leases, including by occupying the airspace above the
lease, would constitute a trespass to land. 116

Greenpeace USA maintains that an

incursion into the air space about the seabed parcels constituting Shell’s OCS leases
would not be an actionable trespass to land. 117 In this regard, Section 159 of the
Restatement is instructive, as it provides that “a trespass may be committed on,
beneath, or above the surface of the earth.” Specifically with regard to aircraft, Section
159 provides that an entry into “space above the land of another is a trespass if, but
only if, (a) it enters into the immediate reaches of the air space next to the land, and (b)
it interferes substantially with the other’s use and enjoyment of his land.” 118

With

respect to what constitutes “immediate reaches,” Comment l to this section indicates
that “flight at 500 feet or more above the surface is not within the ‘immediate reaches,’
while flight within 50 feet, which interferes with actual use, clearly is, and flight within
150 feet, which also so interferes, may present a question of fact.” 119 And Comment m
to Section 159 notes that “[e]ven though a flight may not be within the ‘immediate
reaches’ [so as to constitute a trespass], it may still unreasonably interfere with the use
and enjoyment of the land. In such a case the liability will rest upon the basis of
nuisance rather than trespass.”120
116

12(b)(6) Opp. at 21-22.

117

12(b)(6) Reply at 18.

118

Restatement (Second) of Torts § 159.

119

Id. at § 159 Comment l.

120

Id. at § 159 Comment m.

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Greenpeace USA cites to Section 193 of the Restatement, which states that “[a]
person is privileged to navigate in a reasonable manner navigable waters situated on
land in the possession of another.” 121 However, Comment d of that section identifies
this privilege of navigation as a privilege which, “like the privilege to use a public
highway, must be exercised for the purpose of legitimate navigation and in a reasonable
manner.”122

Thus, under the Restatement, if Greenpeace USA’s presence in the

immediate reaches of the air or in the water above Shell’s OCS leases is not a
reasonable, legitimate use of the air or water for the purposes of navigation, it could
constitute an actionable trespass to land.
For the foregoing reasons, Greenpeace USA’s motion to dismiss Shell’s cause of
action alleging a threatened trespass to land is denied.
D. Conversion
Shell’s fourth cause of action alleges that Greenpeace USA’s actual and
threatened conduct, “including its illegal boarding and occupation of the Noble
Discoverer, the Nordica, the Fennica, and the Harvey Explorer, and its threatened
boarding and occupation of the Kulluk and other vessels,” constitutes “unauthorized use
and control, and tortious conversion, of Shell’s personal property.” 123
Alaska law defines conversion as “an intentional exercise of dominion or control
over a chattel which so seriously interferes with the right of another to control it that the

121

Id. at § 193.

122

Id. at § 193 Comment d.

123

Second Am. Compl. ¶¶ 53-57 (Fourth Cause of Action).

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actor may justly be required to pay the other the full value of the chattel.”124 This
definition is identical to that set forth in Section 222A of the Restatement, to which
federal courts often turn when evaluating maritime torts. 125

The Restatement’s

illustrations in Section 222A make clear that while the seriousness of the interference
that must be exercised over a chattel for it to constitute conversion is significantly higher
than that required for trespass to chattels, the line to be drawn between the two torts is
far from clear. 126
Based on the record before this court, Shell’s Second Amended Complaint fails
to state a cause of action for conversion with respect to the Greenpeace incidents that
have already taken place involving the Noble Discoverer, the Harvey Explorer, the
Nordica, and the Fennica. While Greenpeace USA is alleged to have occupied and
boarded each of these vessels, Shell has not alleged facts that demonstrate that Shell’s
right to control these vessels was so compromised that the tortfeasors may justly be
required to pay Shell the full value of these vessels. Thus, Shell’s action for conversion
is dismissed insofar as it has alleged this tort with respect to these prior actions.
With regard to Greenpeace USA’s threatened future actions, Shell’s allegations
of conversion are substantially the same as those it makes in support of its claim for
trespass to chattels. Shell has alleged that Greenpeace USA intends to board and
occupy its vessels, and that if Greenpeace were “allowed in proximity to Shell’s vessels

124

Silvers v. Silvers, 999 P.2d 786, 793 (Alaska 2000) (citing Alaska Cont’l, Inc. v. Trickey, 933
P.2d 528, 536 (Alaska 1997). See also Restatement (Second) of Torts § 222A.
125

See Restatement (Second) of Torts § 222A.

126

Id. at § 222A Illustrations.

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or operations, their presence would create a dilemma by forcing Shell to choose
between abandoning lawful operations as long as Greenpeace is present, and thereby
incurring irreparable harm, or proceeding at grave risk to life, limb, property, and the
environment.” 127 Given the uncertainty of the consequences of a successful future
tortious direct action by Greenpeace USA against Shell, this court finds that the
threatened tort of conversion has been adequately pled and the motion to dismiss this
count is denied.
E. Interference with Maritime Navigation
Shell’s fifth and final cause of action in its Second Amended Complaint alleges
that Greenpeace USA’s threatened efforts “to blockade or block the path of [Shell’s]
vessels while in navigable waters are in flagrant disregard of the COLREGS, and
otherwise constitute unlawful obstruction or interference with maritime navigation.”128
Shell cites specifically to Rule 18 of the COLREGS, which provides that a vessel “shall
keep out of the way of a vessel restricted in her ability to maneuver,” which presumably
would include a mobile drilling vessel. 129 The asserted basis for jurisdiction for this
claim is general maritime law. 130
Under maritime tort law, “[l]iability for collisions, allisions, and other types of
marine casualties is based upon a finding of fault that caused or contributed to the

127

Second Am. Compl. ¶ 28.

128

Id. at ¶ 62.

129

Id. at ¶ 60; COLREGS (authorized at 33 U.S.C. § 1601-1608), available at
http://www.navcen.uscg.gov/?pageName=navRuleChanges.

130

See also discussion of 33 U.S.C. § 1601, supra at 9.

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damage incurred. From earliest times, this rule has been consistently applied.”

131

This

court finds that an intentional interference with the right of another to freely navigate
may constitute a tort under general maritime law and that this tort has been adequately
pled by Shell. Accordingly, Greenpeace USA’s motion to dismiss this cause of action is
denied. 132
III.

Shell’s Motion for Additional Preliminary Injunctive Relief, or Alternatively, for
an Indicative Ruling
This court’s March 28, 2012 Preliminary Injunction Order was applicable only to

United States territorial waters and ports. 133 The balance of Shell’s motion for injunctive
relief was deferred until the parties completed their briefing on Greenpeace USA’s two
motions to dismiss.

That briefing was completed on April 9, 2012.

In late April,

Greenpeace USA filed an interlocutory appeal to the Ninth Circuit of the March 28, 2012
Preliminary Injunction Order. 134 However, Greenpeace USA has not sought a stay of
the Preliminary Injunction Order. On May 14, 2012, Shell filed a motion seeking a ruling
131

Schoenbaum § 14-2. See also Evergreen Int’l v. Marinex Construction Co., 477 F.Supp.2d
681, 685-86 (quoting Schoenbaum) (citing Folkstone Maritime, Ltd. v. CSX Corp., 64 F.3d 1037,
1046 (7th Cir. 1995)).

132

In this regard, this court disagrees with Greenpeace USA’s interpretation of the District
Court’s analysis of this issue in Institute of Cetacean Research v. Sea Shepherd Conservation
Soc., 2012 WL 958545 (W.D. Wash. Mar. 19, 2012). See 12(b)(6) Reply at 23-24. The District
Court held that “the COLREGS state specific, obligatory, and universal norms of maritime
navigation,” and held that a violation of a COLREG rule could form the basis of an underlying
claim for interference with safe navigation. And the District Court expressly held that the
Japanese whalers “are likely to succeed on one narrow aspect of the claims underlying the
injunction they request: that Sea Shepherd violates the COLREGS by piloting its ships and
boats too close to its ships.” But the court then concluded that “international comity dictates that
it not grant relief[.]” Inst. of Cetacean Research, 2012 WL 958545 at *21.
133

Mot. for Additional Relief (Docket 100).

134

Shell v. Greenpeace, Inc., Appeal No. 12-35332 (filed Apr. 26, 2012).

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on those portions of its motion for injunctive relief that this court had not addressed.
Specifically, Shell seeks to expand the terms of the Preliminary Injunction Order so as
to include its proposed aviation facilities in Barrow and its operations outside of the
twelve-mile territorial sea and within the United States EEZ, which is where it plans to
conduct both of its drilling operations this summer.
The parties dispute the extent to which this court retains jurisdiction to expand
the scope of the Preliminary Injunction while the interlocutory appeal is pending. Shell
asserts that this court retains jurisdiction to expand the Preliminary Injunction Order so
as to include its planned EEZ operations and its leased aviation facilities. Alternatively,
if this court determines that it lacks jurisdiction to accord the additional injunctive relief
Shell seeks at this time, Shell seeks an “indicative ruling” pursuant to Federal Rule of
Civil Procedure 62.1 on the undecided portions of the motion for injunctive relief. If this
court indicates that it would grant the additional relief, Shell indicates that it would then
seek a remand for that purpose from the Ninth Circuit pursuant to Civil Rule 62.1 so as
to have the additional relief accorded to it.
In its response to Shell’s most recent motion, Greenpeace USA has indicated its
non-opposition to this court’s determination of the pending Rule 12 motions, which have
now been determined in this decision. And Greenpeace USA indicates it is not opposed
to this court issuing an indicative ruling concerning the additional injunctive relief sought
by Shell pursuant to Rule 62.1. But Greenpeace USA asserts that the District Court is
without jurisdiction to expand the scope of the Preliminary Injunction Order during the
pendency of its interlocutory appeal. It acknowledges that Rule 62(c) permits a trial
court to “suspend, modify, restore or grant an injunction” while an appeal is pending
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from an interlocutory order, but it maintains that Ninth Circuit case law establishes that
this rule has been interpreted to be “merely expressive of a power inherent in the court
to preserve the status quo where, in its sound discretion, the court deems the
circumstances to so justify.” 135
Greenpeace USA also interprets paragraph 4(c) of Shell’s proposed amended
order to extend the scope of the preliminary injunction to areas outside the United
States EEZ and “impermissibly expand the injunction to permit this Court to exercise
authority over foreign organizations and associated activists not parties to this
proceeding.” 136 However, in its Reply, Shell points to paragraph 1(a) of its proposed
amended order, and clarifies that it had intended and requested that the Preliminary
Injunction Order be expanded only to include its planned operations within the United
States EEZ and its North Slope aviation facilities. 137
Civil Rule 62(c) provides as follows:
While an appeal is pending from an interlocutory order or final
judgment that grants, dissolves, or denies an injunction, the court
may suspend, modify, restore, or grant an injunction on terms for
bond or other terms that secure the opposing party’s rights. . .
In Natural Resources Defense Council, Inc. v. Southwest Marine Inc., the Ninth
Circuit held

135

Greenpeace USA’s Corrected Partial Opp. to Mot. for Additional Relief at 4, n.6 (Docket 1061) [hereinafter Corrected Additional Relief Opp.] (citing McClatchy Newspapers v. Cent. Valley
Typographical Union No. 46, 686 F.2d 731, 734 (9th Cir. 1982)).
136

Id. at 8-9.

137

See Shell’s Reply to Opp. to Mot. for Additional Relief at 6, n.16 (Docket 107) [hereinafter
Additional Relief Reply].
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Once a notice of appeal is filed, the district court is divested of
jurisdiction over the matters being appealed. . . This rule is judgemade; its purpose is to promote judicial economy and avoid the
confusion that would ensue from having the same issues before
two courts simultaneously. . . The principle of exclusive appellate
jurisdiction is not, however, absolute. . . The district court retains
jurisdiction during the pendency of an appeal to act to preserve the
status quo. 138
Citing specifically to Civil Rule 62(c), the Ninth Circuit added
This Rule grants the district court no broader power than it has
always inherently possessed to preserve the status quo during the
pendency of an appeal; it “does not restore jurisdiction to the district
court to adjudicate anew the merits of the case.” . . . Thus, any
action taken pursuant to Rule 62(c) “may not materially alter the
status of the case on appeal.” 139
In Southwest Marine, the Ninth Circuit concluded that the trial court’s modifications of an
injunction while an appeal was pending were within the district court’s discretion, as the
trial court’s modifications “left unchanged the core questions before the appellate panel
deciding the consolidated appeal.” 140

The court added, “if compliance with the

138

Natural Res. Def. Council, Inc. v. S.W. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001)
(citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d
225 (1982) (per curiam); McClatchy Newspapers, 686 F.2d at 734; Masalosalo v. Stonewall Ins.
Co., 718 F.2d 955, 956 (9th Cir. 1983); 20 James Wm. Moore, Moore's Federal Practice,
§§ 303.32[1], 303.32[2][b] (3d ed. 2000); Newton v. Consol. Gas Co., 258 U.S. 165, 177 (1922);
Hoffman v. Beer Drivers & Salesmen's Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir.
1976); United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79 (9th Cir. 1951)).
139

Id. (citing McClatchy Newspapers, 686 F.2d at 734; Allan Ides, The Authority of a Federal
District Court to Proceed After a Notice of Appeal Has Been Filed, 143 F.R.D. 307, 322 (1992)).
See also Mayweathers v. Newland, 258 F.3d 930 (9th Cir. 2001) (upholding District Court’s
authority to enter second preliminary injunction on terms identical to first injunction, when
interlocutory appeal of first injunction was pending and the first injunction was set to
automatically expire by its terms).
140

Id. at 1167.

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injunction threatens to deprive a party of the benefit of a successful appeal, it is up to
that party to obtain a stay of the judgment.”141
The parties here generally agree that this court has the ability to modify an
injunction if necessary to preserve the status quo pending appeal.

They disagree,

however, in their definitions of what constitutes the current status quo. Shell defines the
status quo as “the state of the world before Greenpeace began its campaign to illegally
and tortiously interfere with Shell’s rights to lawfully explore for oil and gas in the
Beaufort and Chukchi Seas.”142 From there, Shell asserts that expanding the scope of
the injunction to include its aviation facilities and planned operations in the EEZ would
not alter that status quo, as “the status quo Shell seeks to preserve is the state of the
world where its lawful rights to explore for oil and gas in the Alaskan OCS are protected
from the unacceptable risks to life, property and the environment caused by
Greenpeace’s ‘direct actions.’”143 Shell also asserts that expanding the scope of the
Preliminary Injunction to include the EEZ and aviation facilities will not materially alter
the status of the case or the core issues that are on appeal before the Ninth Circuit, as
the analysis that this court applied to enter the Preliminary Injunction Order would be
unaltered and the basic terms of the injunction would be unchanged except that they
would apply with equal force to these additional areas. 144

141

Id. at 1168.

142

Additional Relief Reply at 5.

143

Id. at 5.

144

Id. at 6.

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Greenpeace USA asserts that the status quo is an injunction that is limited solely
to United States territorial waters and ports, and that expanding the scope of the
injunction would not preserve this status quo. But Greenpeace USA seems principally
concerned with its reading of the proposed amended injunction to extend beyond the
EEZ, to “an extraterritorial application of this Court’s injunctive power,” 145 “over foreign
organizations and associated activists not parties to this proceeding,” 146 relief which
Shell’s Reply indicates that it is not seeking, and which this court does not intend to
grant. 147
If the maintenance of the status quo is interpreted in its narrowest sense, then it
is difficult to imagine a preliminary injunction ever being modified pending an
interlocutory appeal. Black’s Law Dictionary defines the status quo as “the situation that
currently exists.” 148 The situation that currently exists is one that precludes Greenpeace
USA from tortiously interfering with Shell’s planned OCS operations.

When the

Preliminary Injunction Order was entered on March 28, 2012, the United States
components of those operations were taking place within United States territorial waters
and ports. Shell’s operation in the EEZ and at its aviation facilities are not scheduled to
begin for several more weeks. Thus, when this court entered the March 28 Preliminary
Injunction Order, there was no immediate need to address Shell’s planned activities in
the EEZ and at the aviation facilities. But if this court did not extend the scope of the
145

Corrected Additional Relief Opp. at 5.

146

Id. at 9.

147

See discussion, supra at 37.

148

Black’s Law Dictionary 1542 (Bryan A. Garner, ed.) (9th ed.).

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injunctive relief at this time to include those additional planned areas of operations, such
inaction by this court could be wrongly interpreted as an implicit authorization for
Greenpeace USA to commit illegal or tortious acts against Shell in the EEZ and at
Shell’s aviation facilities. In these circumstances, this court finds that modification of the
injunction to include Shell’s planned operations in the EEZ and the Barrow aviation
facilities may be warranted, as it would not materially alter the status quo of the case on
appeal to the Ninth Circuit. 149 Accordingly, this court will consider the merits of Shell’s
motion for additional preliminary injunctive relief.
IV.

Shell’s Motion for Preliminary Injunction
Shell’s request for preliminary injunctive relief for its planned operations in the

EEZ and at its aviation facilities was fully briefed by the parties earlier this year. The
March 28, 2012 Order Granting Motion for Preliminary Injunction contains a detailed
analysis of the four-factor test that a party seeking preliminary injunctive relief must
establish. 150 That order was limited to United States territorial waters and ports only
because Greenpeace USA’s motions to dismiss for lack of subject matter jurisdiction
and for failure to state a claim had not yet been fully determined by this court. 151 But
149

It follows, too, that if the Ninth Circuit reverses this court’s March 28, 2012 Preliminary
Injunction Order, then the Amended Preliminary Injunction Order would likewise be subject to
that same appellate determination.

150

Prelim. Inj. Order at 11-24.

151

As set forth above, Greenpeace USA’s motion to dismiss under Rule 12(b)(6) has been
granted in part, and Shell’s claims of public nuisance, tortious interference with contractual
relations, and past acts of conversion have all been dismissed. But, as was the case when this
court entered the Preliminary Injunction Order, Shell’s claims of private nuisance, trespass and
trespass to chattels, threatened future conversion, and interference with maritime navigation all
remain viable and form the underpinning of Shell’s continued entitlement to preliminary
injunctive relief.
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the analysis that this court applied when considering preliminary injunctive relief solely
within United States territorial waters and ports is identical for the threatened
Greenpeace USA conduct against Shell in the EEZ or at its Arctic land-based aviation
facilities.

Indeed, with respect to potential tortious interference, Shell’s case for

preliminary injunctive relief applies with greatest force at the planned drilling sites
themselves, each of which are within the EEZ and outside the territorial sea. In short,
this court finds—for all the same reasons that this court previously found—that Shell
has demonstrated the requisite likelihood of success on the merits, likelihood of
irreparable harm in the absence of preliminary relief, the balancing of the equities
remains tipped strongly in its favor, and the public interest will be served by the
inclusion of the EEZ and aviation facilities within the terms of preliminary injunctive
relief. 152

Further, this court has strived to narrowly tailor the scope of preliminary

injunctive relief, and has specifically left open the opportunity for Greenpeace USA to
seek by motion to enter within the safety zones on such terms that this court may order,
so as to accord to the organization the opportunity to more closely monitor Shell’s
planned drilling activities. 153
Apart from expanding the scope of injunctive relief to include Shell’s operations in
the EEZ and the aviation facilities, and correcting the name of one of the vessels, this
court is not otherwise modifying the terms of the Preliminary Injunction Order that is
currently on appeal to the Ninth Circuit. A separate Amended Preliminary Injunction
152

In this regard, this court adopts and incorporates by reference the analysis set forth in this
court’s March 28, 2012 Order Granting Motion for Preliminary Injunction as if fully set forth
herein.

153

See Prelim. Inj. Order at 23-24, 29.

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Order that sets forth the terms of the order and states with specificity the acts that are
restrained is entered on this same date.
Conclusion
For the reasons expressed herein, Greenpeace USA’s Rule 12(b)(1) Motion to
Dismiss for Lack of Subject Matter Jurisdiction is DENIED; Greenpeace USA’s Rule
12(b)(6) Motion to Dismiss for Failure to State a Claim is GRANTED IN PART and
DENIED IN PART. Specifically, Shell’s claims of public nuisance, tortious interference
with contractual relations, and past acts of conversion are each dismissed for failure to
state a claim. Greenpeace USA’s motion to dismiss Shell’s remaining claims of private
nuisance, trespass and trespass to chattels, threatened future conversion, and
interference with maritime navigation is denied; each of these claims remains viable.
Shell’s Motion for Additional Preliminary Injunctive Relief is GRANTED, and a separate
Amended Preliminary Injunction Order is issued on this date.
DATED at Anchorage, Alaska, this 29th day of May, 2012.
/s/ Sharon L. Gleason
United States District Judge

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