Shell Oil Company v. Greenpeace, Inc.

Filing 124

ORDER: denying Greenpeace USA's Motion to Stay 118 . Signed by Judge Sharon L. Gleason on 07/20/2012. (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 1-20,
Defendants.

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

ORDER DENYING GREENPEACE USA’S MOTION TO STAY
This court issued a Preliminary Injunction on March 28, 2012. 1 Greenpeace, Inc.
(also known as “Greenpeace USA”) filed an interlocutory appeal of that injunction with
the Ninth Circuit on April 26, 2012. 2 On May 29, 2012, this court issued an Amended
Preliminary Injunction. 3

Greenpeace USA appealed the Amended Preliminary

Injunction on June 28, 2012. 4
On June 18, 2012, Greenpeace USA filed a motion to stay in its first appeal with
the Ninth Circuit, seeking to stay enforcement of the Preliminary Injunction pending the
Circuit Court’s determination of that appeal. 5 On June 25, 2012, Greenpeace USA filed
1

Docket 87.

2

Docket 95.

3

Docket 109.

4

Docket 114.

5

Appeal No. 12-35332, Docket 11.

an “Urgent Motion” seeking the same relief. 6 The Ninth Circuit denied the motion on
June 27, 2012 “without prejudice to renewal following presentation to the district court.” 7
On July 3, 2012, Greenpeace USA filed a Motion to Stay to this court and
requested consideration on shortened time. 8 The motion seeks to stay both the March
28, 2012 Preliminary Injunction and the Amended Injunction dated May 29, 2012,
pending the outcome of the interlocutory appeal currently before the Ninth Circuit. This
court granted an expedited briefing schedule. 9 In accordance with that schedule, Shell
filed its opposition on July 11, 2012 10 and Greenpeace USA replied on July 16, 2012. 11
DISCUSSION
The Ninth Circuit has held that, when determining whether to issue a stay
pending appeal, a court is to consider:
(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay
will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies. . . [T]he issues
of likelihood of success and irreparable injury represent two points
on a sliding scale in which the required degree of irreparable harm
increases as the probability of success decreases. 12
6

Id., Docket 12.

7

Id., Docket 13.

8

Docket 116, 118.

9

Docket 120.

10

Docket 121.

11

Docket 123.

12

Humane Soc’y of U.S. v. Gutierrez, 523 F.3d 990, 991 (9th Cir. 2008) (citing Golden Gate
Restaurant Ass'n v. City and Cnty. of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008)
(internal quotation marks omitted).
3:12-cv-00042-SLG, Shell Offshore Inc. et al. v. Greenpeace, Inc. et al.
Order Denying Greenpeace USA’s Motion to Stay
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This analysis is similar to the test for preliminary injunctive relief. 13

This court

addresses each of the factors in turn below, adopting its prior analyses where
appropriate.
(1) Greenpeace USA has not made a showing that it is likely to succeed on the
merits of its appeal.
In its Motion to Stay, Greenpeace USA argues that it is likely to succeed on its
interlocutory appeal because the Preliminary Injunction was issued on the basis of “both
an erroneous legal standard and clearly erroneous factual findings.” 14
Greenpeace USA argues that this court improperly relied on the absence in the
record of any statement from Greenpeace USA that it would not attempt tortious or
unlawful acts against Shell in the coming months. Greenpeace USA argues that in
doing so, this court impermissibly shifted the burden of proof from Shell to Greenpeace
USA. In the March 28, 2012 Preliminary Injunction, this court “accorded a minor degree
of weight” to Greenpeace USA’s silence regarding its summer intentions. 15 This court
interpreted that silence as a party admission, citing to the Restatement of Torts, the
Federal Rules of Evidence, and Ninth Circuit precedent. 16 This court’s consideration of
Greenpeace USA’s admission-by-silence as evidence that supported Shell’s motion did
not shift the burden of proof to Greenpeace USA.

13

See Sierra Forest Legacy v. Ray, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
14

Mot. at 5.

15

Docket 87 at 16.

16

Id.

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Order Denying Greenpeace USA’s Motion to Stay
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Greenpeace USA also argues that this court erred by finding a case and
controversy and enjoining conduct based on the possibility of future harm. 17
Greenpeace USA asserts that this court should have looked to “existing Ninth Circuit
precedent,” Roller v. City of San Mateo. 18 In Roller, a 1975 case from the Northern
District of California, the plaintiff sued her former employers for sex discrimination. 19 A
Temporary Restraining Order (“TRO”) was entered before the evidentiary hearing in the
case “in order to ensure that defendants did not interfere with plaintiff’s efforts in
collecting affidavits and compiling documents and records in support of her case.” 20
The evidentiary hearing was then held and the defendants prevailed on the merits.
Among other relief sought, the plaintiff had asked the court to enter a preliminary
injunction continuing the TRO after the evidentiary hearing. 21 The court declined to do
so, explaining that because the case had then been determined, “the purpose of
granting that temporary restraining order no longer is pressing.” 22 And while the Ninth
Circuit affirmed the District Court’s judgment in Roller, the appellate decision contains
no mention of the trial court’s ruling that denied the request for the preliminary

17

Mot. at 14.

18

Id. (citing 399 F. Supp. 358 (N.D. Cal. 1975) judgment aff'd, 572 F.2d 1311 (9th Cir. 1977)).

19

Roller, 399 F. Supp 358.

20

Id. at 365.

21

Id..

22

Id.

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Order Denying Greenpeace USA’s Motion to Stay
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injunction. 23 This court finds that Roller is so factually distinct from the case before this
court that it is not helpful authority.
In discussing the law regarding injunctive relief for threatened torts, Greenpeace
USA asserts that the March 28, 2012 Preliminary Injunction improperly relied only on
the Restatement of Torts and a case from the District of Columbia. 24 But this court also
applied the analysis set forth by the United States Supreme Court in the 2009 decision
of Summers v. Earth Island Institute, 25 as well as the Ninth Circuit’s 1990 holding in
Diamontiney v. Borg that an “injury need not have been inflicted when application is
made or be certain to occur; a strong threat of irreparable injury before trial is an
adequate basis.” 26 This court remains unpersuaded by Greenpeace USA’s assertion
that threatened torts cannot serve as a basis for preliminary injunctive relief.
Greenpeace USA also takes issue with this court’s determinations on the scope
of admiralty, or maritime jurisdiction, and jurisdiction under the Outer Continental Shelf
Lands Act, 43 U.S.C. § 1333 et seq.

27

This court has previously accorded extensive

consideration to these issues, and declines to reconsider its rulings in that regard. 28
Accordingly, Greenpeace USA has not demonstrated to this court that it is likely
to succeed on the merits of its interlocutory appeal.

23

See Roller, 572 F.2d 1311.

24

Docket 118 at 13-14, n.56.

25

Docket 87 at 13 (citing 555 U.S. 488 (2009)).

26

Id. at 8 (citing 918 F.2d 793, 795 (9th Cir. 1990)).

27

Docket 118 at 7-11.

28

Docket 87 at 4-9; Docket 108 at 6-12, Order re All Pending Motions, May 29, 2012.

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Order Denying Greenpeace USA’s Motion to Stay
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(2) Greenpeace USA will not be irreparably injured absent a stay.
Greenpeace USA asserts that it “suffers irreparable harm each day the injunction
remains in effect” because the injunction is an inappropriate restriction on its First
Amendment rights. 29 In response, Shell cites Menotti v. City of Seattle, in which the
Ninth Circuit determined that the size of the zone restricted by an injunction was justified
by the difficulty of effecting the protection sought. 30
The safety zones established in the injunction issued by this court are intended to
prevent illegal or tortious conduct from interfering with Shell’s operations. This court
addressed Greenpeace USA’s First Amendment concerns in its previous orders when
evaluating the balance of the equities31 and declines to reconsider its rulings that the
safety zones imposed by the injunction are not unduly burdensome on Greenpeace
USA’s speech rights. 32
This court is also unpersuaded by Greenpeace USA’s assertion as to the
urgency of its need for a stay. 33 This court issued the Preliminary Injunction on March
28, 2012 and the Amended Preliminary Injunction on May 29, 2012. Greenpeace USA
did not move for a stay until mid-June—nearly three months after the Preliminary

29

Mot. at 15.

30

Docket 121 at 19-20 (citing 409 F.3d 1113, 1134 (9th Cir. 2005)).

31

Docket 87 at 22-23; Docket 108 at 42 (adopting discussion from prior order).

32

As this court has repeatedly noted, if Greenpeace USA feels that the safety zones are unduly
burdensome, it can seek by motion to modify the injunctions. Docket 108 at 42; Docket 87 at
29.
33

See, e.g., Docket 118 at 16-17.

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Order Denying Greenpeace USA’s Motion to Stay
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Injunction had been issued. Greenpeace USA’s delay in seeking a stay is at odds with
its recent assertions of urgency.
Greenpeace USA has not demonstrated to this court that it would be irreparably
injured absent a stay of the preliminary injunction.
(3) Issuance of a stay is likely to substantially injure Shell.
In its prior orders, this court found that Shell is likely to suffer irreparable harm in
the absence of an injunction, in the form of risks to human life, property, and its
exploratory drilling operations. 34 Greenpeace USA argues that because Shell has not
received all of the permits and approvals it requires to begin drilling this summer, Shell
cannot demonstrate that it is likely to suffer irreparable injury in the absence of
injunctive relief. 35 However, based on a consideration of all the evidence in this record,
this court finds it more likely than not that Shell will obtain the necessary permits.
Applying the standard of Winter v. Natural Resources Defense Council, Inc., 36 this court
previously found that Shell is likely to suffer irreparable harm in the absence of
preliminary injunctive relief.

It follows that if a stay is issued, Shell is likely to be

substantially injured, as there would then be no order in effect in this proceeding that
would preclude Greenpeace USA from engaging in tortious or illegal conduct against
Shell.

34

Docket 87 at 19-20; Docket 108 at 42 (adopting discussion from prior order).

35

Reply at 6.

36

555 U.S. 7, 22 (2008).

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(4) A stay is not in the public interest.
This court has previously found, and finds again for the same reasons, that the
enforcement of the Amended Preliminary Injunction is in the public interest. 37
CONCLUSION
For the foregoing reasons, Greenpeace USA’s Motion to Stay is DENIED.
DATED at Anchorage, Alaska this 20th day of July, 2012.

/s/ Sharon L. Gleason
SHARON L. GLEASON
United States District Judge

37

Docket 87 at 23-24; Docket 108 at 42 ((adopting discussion from prior order).

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