Shell Oil Company v. Greenpeace, Inc.
Filing
87
MEMORANDUM AND OPINION: Preliminary Injunction is GRANTED in part; Motion to Stay is GRANTED in part and DENIED in part; Rule 12(b)(1) Motion is DENIED in part and DEFERRED in part. Signed by Judge Sharon L. Gleason on 03/28/2012. (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 GRANTING MOTION FOR PRELIMINARY INJUNCTION
(Within United States Territorial Waters and Ports)
Shell Oil Company 1 filed a combined Motion for Temporary Restraining Order and
Preliminary Injunction on February 27, 2012. 2 After a hearing on February 29, 2012 at
which both Shell and Greenpeace, Inc., participated, this court entered a Temporary
Restraining Order on March 1, 2012 which has enjoined Greenpeace and those acting in
concert with it from engaging in certain illegal or tortious acts within U.S. territorial waters
and waters of the Exclusive Economic Zone of the United States against two vessels in
which the plaintiff has an interest. 3 Specifically, the order applied to the two primary
vessels which Shell intends to use this summer for exploratory offshore oil drilling in the
Beaufort and Chukchi Seas off the northwestern coast of Alaska: the Kulluk and the Noble
1
Pursuant to the Second Amended Verified Complaint (Docket 86), the new plaintiffs in this action
are Shell Offshore Inc. and Shell Gulf of Mexico Inc. (“Shell”).
2
Docket 6.
3
Docket 27.
Discoverer. The Temporary Restraining Order was initially effective until March 14, 2012.
It was extended for an additional 14 days until March 28, 2012 when Greenpeace, Inc.,
which is also known as Greenpeace USA, sought additional time to file its opposition to the
Motion for Preliminary Injunction. 4
Greenpeace USA filed its opposition to the Motion for Preliminary Injunction on
March 12, 2012. 5 With that opposition, it submitted sworn declarations from Thomas
Wetterer, Greenpeace USA’s General Counsel; 6 Nathan Santry, Greenpeace USA’s
Director of Actions; 7 and Anthony Ford, a mariner who is currently employed as the ship
handling Senior Instructor at United States Navy ship simulators. 8
Shell filed its reply on March 16, 2012. 9 With its reply, it included sworn declarations
from William Kupchin, the Aviation Manager for Shell’s planned Arctic operations; 10
Stephen Phelps, the Exploration and Appraisal Manager for the summer drilling plans;11
and John Kaighin, the Marine Manager responsible for all vessels supporting the Arctic
operations. 12 In addition, Shell filed extensive exhibits with the court including both
4
Docket 37.
5
Docket 40.
6
Docket 41.
7
Docket 42.
8
Docket 43 ¶ 7.
9
Docket 61.
10
Docket 62.
11
Docket 64.
12
Docket 66.
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Order Granting Motion for Preliminary Injunction
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information about its drilling plans as well as documentation regarding Greenpeace USA,
Greenpeace International, and other Greenpeace offices. 13
A hearing on the Motion for Preliminary Injunction was held on March 19, 2012.
Counsel for both parties presented arguments to the court; in addition, Mr. Wetterer
testified on behalf of Greenpeace USA.
Also on March 19, 2012, Greenpeace USA filed a motion seeking dismissal of this
action pursuant to Federal Rule of Civil Procedure 12(b)(1), alleging that this court lacked
subject matter jurisdiction to hear this controversy. 14 Shell’s opposition to that motion is
due on March 30, 2012; Greenpeace USA’s reply is due on April 6, 2012. 15 In addition, by
motion filed on March 21, 2012, Greenpeace USA has sought dismissal of this action
based upon Federal Rule of Civil Procedure 12(b)(6), alleging that Shell has failed to state
a claim upon which relief may be granted. 16
Greenpeace USA also filed a separate motion on March 19, 2012 seeking to have
this court stay its ruling on Shell’s Motion for Preliminary Injunction pending a decision on
Greenpeace USA’s Rule 12(b) motions. Shell opposed the stay motion on March 23, 2012,
unless this court extends the Temporary Restraining Order currently in place and adds
additional support vessels to that order. 17 On March 27, 2012, Greenpeace USA replied. It
13
Docket 63, Exs. 1001 - 1078.
14
Docket 69.
15
Docket 82.
16
Docket 75.
17
Docket 79.
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indicated its continuing request for the stay, and its opposition to any further extension of
the Temporary Restraining Order, which expires on this date. 18
Greenpeace USA’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
A district court may not grant a preliminary injunction if it lacks subject matter
jurisdiction over the claim before it. 19 Therefore, the jurisdictional question raised by
Greenpeace USA’s Rule 12(b)(1) motion must be considered before evaluating Shell’s
motion for a preliminary injunction, as the latter issue is moot if this court is without subject
matter jurisdiction.
Greenpeace USA’s Rule 12(b)(1) motion is not yet ripe, as Shell has not yet had the
opportunity to file its response to the motion. However, this court has fully reviewed the
motion, and also heard argument of counsel with respect to subject matter jurisdiction at
the recent hearing on Shell’s motion for a preliminary injunction. Although there are
components of Greenpeace USA's Rule 12(b)(1) motion as to which this court will defer a
ruling pending the completion of briefing on the motion, this court finds that there are
components of Greenpeace USA’s motion that are without merit, such that the motion
should be denied in part at this time, and particularly given the fact that the Temporary
Restraining Order currently in effect will expire by its terms on this day -- March 28, 2012 -before the briefing on the Rule 12(b)(1) motion is completed.
18
Greenpeace USA’s Reply to Opp’n to Mot. for Stay of Prelim. Inj. (Docket 83).
19
Cooper Indus, Inc. v. U.S. E.P.A, 775 F. Supp. 1027, 1036 (W. D. Mich. 1991) (citing City of
Alexandria v. Helms, 728 F.2d 643, 645–46 (4th Cir. 1984); Neighborhood Toxic Cleanup
Emergency v. Reilly, 716 F.Supp. 828, 830 (D.N.J. 1989)). See also W RIGHT & MILLER, FED. PRAC.
& P. § 2941 at 35 [hereinafter W RIGHT & MILLER].
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Greenpeace USA’s Rule 12(b)(1) motion first asserts that diversity jurisdiction does
not exist. Greenpeace USA’s primary concern in this regard may now be resolved, since
the Second Amended Verified Complaint alleges that the matters in controversy exceed the
sum or value of $75,000. 20 However, this court will defer a ruling on this issue pending the
completion of briefing by the parties on the motion. Specifically, the parties’ briefing should
address whether diversity jurisdiction exists and/or is necessary for this court to have
subject matter jurisdiction with respect to Shell’s motion for injunctive relief at land-based
facilities. No immediacy for a ruling on these facilities has been demonstrated, because the
injunctive relief that Shell currently seeks with respect to land-based facilities would apply
solely to aviation facilities in Barrow, Alaska, which presumably will not be in use by Shell
for at least several weeks. 21
Greenpeace USA’s motion also asserts that federal question jurisdiction does not
exist with respect to Shell’s complaint against it. 28 U.S.C. § 1333 provides as follows:
The district courts shall have original jurisdiction, exclusive of the
courts of the States, of: (1) Any civil case of admiralty or maritime
jurisdiction, saving to suitors in all cases all other remedies to which
they are otherwise entitled …
“The traditional domain of admiralty jurisdiction is, of course, the sea, including waters
within the ebb and flow of the tide.”22
In assessing the scope of admiralty jurisdiction at this stage of the proceedings, it is
helpful to distinguish between the territorial sea and U.S. ports on the one hand, and the
20
Second Am. Verified Compl. ¶ 13.
21
See Attach. A to Shell’s Reply in Supp. of Mot. for Prelim. Inj. (Docket 61-1).
22
T. SCHOENBAUM, ADMIRALTY AND MARITIME LAW (5th Ed.) § 3-3 at 122 [hereinafter SCHOENBAUM].
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U.S. Exclusive Economic Zone on the other hand. The territorial sea extends 12 miles from
the baseline shore. 23
Under international law the coastal [nation] has complete sovereignty
over the seas, the air space, the seabed and the subsoil of this area
… An exception to this sovereign control, however, is the right of
innocent passage of foreign vessels. No right of innocent passage in
the air space above the territorial sea exists in the absence of an
agreement or permission by the coastal state. 24
The Exclusive Economic Zone begins at the outer limit of the territorial sea and extends
200 miles from the baseline of the coastal nation. 25
Shell seeks to prevent the occurrence of illegal or tortious activities by Greenpeace
USA on navigable waters with respect to Shell’s contracted vessels. The passage of such
vessels on navigable waters is indisputably a commercial maritime activity, and it is this
precise maritime activity that Shell has alleged that Greenpeace USA seeks to disrupt. As
explained by the United States Supreme Court,
We determine the potential impact [on maritime commerce] of a given
type of incident by examining its general character. The jurisdictional
inquiry does not turn on the actual effects on maritime commerce …
Rather, a court must assess the general features of the type of
incident involved to determine whether such an incident is likely to
disrupt commercial activity. 26
If such disruption is likely, then it is clear that this court has admiralty jurisdiction, at least at
United States ports and within the territorial sea of the United States. Given that Shell has
alleged that Greenpeace USA seeks to disrupt Shell’s maritime activities at U.S. ports and
23
See generally id. § 2-13 at 45.
24
Id. § 2-14 at 44.
25
Id. § 2-16 at 46.
26
Sisson v. Ruby, 497 U.S. 358, 363 (1990).
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within the territorial sea, it is clear that this court has admiralty jurisdiction over Shell’s
action against Greenpeace USA in these areas. 27
With respect to the Exclusive Economic Zone and land-based facilities, this court will
defer the determination of Greenpeace USA’s Rule 12(b)(1) motion to dismiss until the
briefing is completed by the parties on that motion. Deferral of the parameters of subject
matter jurisdiction in those areas is warranted for two reasons. First, the Shell-contracted
vessels are not scheduled to begin exploratory drilling until approximately July 1, 2012. By
then, they are scheduled to be within the Exclusive Economic Zone, but there is no urgency
with respect to the actual drilling sites prior to the completion of the briefing of the motions
to dismiss.
Second, although this court likely has some degree of subject matter
jurisdiction in the Exclusive Economic Zone by virtue of the Outer Continental Shelf Lands
Act (“OCSLA”), 28 the delineation of any injunctive relief in the Exclusive Economic Zone
should occur after the precise parameters of that subject matter jurisdiction have been
determined by this court under the OCSLA, general admiralty jurisdiction, and any other
basis.
Greenpeace USA also asserts in its Rule 12(b)(1) motion to dismiss that there is no
current case or controversy because the New Zealand incident cannot be attributed to
Greenpeace USA, and with respect to any future activity by Greenpeace USA, Shell has
27
Whether and to what extent this court may have subject matter jurisdiction over these waters
under other bases can be addressed as warranted in further proceedings.
28
43 U.S.C. § 1331 et seq. Although Shell has asserted jurisdiction under § 1349 of the OCSLA,
that section would appear to apply to citizen suits alleging violations of the act. The court would
seek input from both parties in their briefing on the Rule 12(b)(1) motion as to the import of
§ 1333(a)(1) of the OCSLA. See generally SCHOENBAUM § 3-9 at 172-178.
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not shown that it is “immediately in danger of sustaining some direct injury.” 29 Instead,
Greenpeace USA asserts that Shell has demonstrated only that “Greenpeace USA may or
could do something in the future” and that this court should not maintain jurisdiction “based
on Shell’s conjecture or hypothetical possibilities.” 30 This argument is closely related 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, and is discussed in that
context further herein. But an “injury need not have been inflicted when application [for
injunctive relief] is made or be certain to occur[.]” 31 Indeed, “[r]equiring a showing of actual
injury would defeat the purpose of the preliminary injunction, which is to prevent an injury
from occurring.” 32 The current record before this court, as discussed further herein,
demonstrates the existence of a case or controversy with respect to Greenpeace USA’s
potential future conduct.
Thus, in light of the foregoing, this court finds that it has subject matter jurisdiction
with respect to the ports of the United States and its territories, together with the territorial
waters of the United States, and Greenpeace’s Rule 12(b)(1) motion as well as its motion to
stay are denied with respect to those areas. Greenpeace USA’s motion to stay a ruling on
Shell’s Motion for Preliminary Injunction is granted with respect to land-based facilities and
29
Greenpeace USA’s Mem. in Supp. of Mot. to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(1) at 33 (Docket 69).
30
Id. at 34.
31
Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990) (citing 11C W RIGHT & MILLER FED. PRAC.
& P. § 2948 at 437-38 (1973)). See also W RIGHT & MILLER § 2948.1 at 135 (citing U.S. v. W.T.
Grant Co., 345 U.S. 629, 633 (1953) (“The purpose of an injunction is to prevent future violations …
and, of course, it can be utilized even without a showing of past wrongs. . . ).
32
Diamontiney, 918 F.2d at 795.
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the United States Exclusive Economic Zone pending the completion of briefing by the
parties on Greenpeace USA’s Rule 12(b)(1) motion.
Greenpeace USA’s Motion to Dismiss for Failure to State a Claim
As noted above, Greenpeace USA has also recently filed a motion to dismiss
pursuant to Civil Rule 12(b)(6) alleging that Shell has failed to state any viable cause of
action against it. This court has reviewed the motion and will defer ruling upon it pending
the completion of briefing by the parties, particularly in light of Shell’s recent amendment of
its complaint. 33 However, based on the court’s review of the motion, Greenpeace USA’s
motion to stay a ruling on Shell’s Motion for Preliminary Injunction pending the
determination of the Rule 12(b)(6) motion is denied. The following discussion is intended
to guide the parties in their further briefing of the 12(b)(6) motion.
In its 12(b)(6) motion, Greenpeace USA has correctly acknowledged that maritime
trespass has been recognized as a federal cause of action by the Fifth Circuit. 34 Thus, in
Marastro Compania Naviera, S.A. v. Canadian Maritime Carriers, the Fifth Circuit 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.” 35
33
Docket 86.
34
See Greenpeace USA’s Mem. in Supp. of its Mot. to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6) at 15-16 (Docket 76) (citing Marastro Compania Naviera, S.A. v. Canadian
Maritime Carriers, Ltd., 959 F. 2d 49, 53 (5th Cir. 1992)).
35
959 F. 2d at 53.
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Under the Restatement, one is subject to liability for trespass to chattels by
intentionally intermeddling with property in the possession of another. 36 Greenpeace USA
asserts that “the Restatement does not contemplate a cause of action for a threatened
trespass.”37 But this assertion appears to be directly at odds with the Restatement itself.
While a showing of actual trespass may be required in order to recover damages, the
Restatement makes it clear that in appropriate cases, injunctive relief may be ordered for
torts that are only threatened and have not actually occurred. 38
In this regard, Section 933 of the Restatement of Torts provides that “the availability
of an injunction against a committed or threatened tort depends upon the appropriateness
of this remedy as determined by a comparative appraisal of the factors [that are] listed in §
936.”39 The commentary to Section 933 explains the meaning of the term “threatened tort”:
The expression “threatened tort,” as used in … this Section,
contemplates, as a condition for the grant of an injunction, a threat of
sufficient seriousness and imminence to justify coercive relief … A
defendant may threaten a tort not only by utterances that express an
intention to commit a tort, but also by action or inaction that, under the
circumstances, shows that there is a dangerous probability that he will
commit a tort. Indeed a common method of proving a threat of a
future tort is by proving a past tort under conditions that render its
repetition or continuance probable. It is not necessary, however, to
36
See generally REST. 2D TORTS §§ 216 – 222.
37
Greenpeace USA’s Mem. in Supp. of its Mot. to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6) at 19 (Docket 76).
38
See REST. 2D TORTS § 933.
39
Id. (emphasis added). Section 936 lists a number of factors for a court to consider when
deciding a motion for injunctive relief. However, this court has not relied upon those factors in
considering Shell’s motion for injunctive relief. Instead, this court has applied the established
precedent of the United States Supreme Court. See Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). See also Pimentel v. Dreyfus, __ F.3d __, 2012 WL 639302 (9th Cir. 2012).
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prove past wrong. Without that, the defendant's words and acts may
establish the dangerous probability that is essential. 40
The Restatement cautions that
An injunction is not justified, however, by the mere fact that the
defendant is in a position where he will be tempted to commit a tort,
nor by the fact that persons in his position sometimes do commit torts,
nor by the fact that the plaintiff fears that the defendant will commit a
tort. 41
The federal district court cited Section 933 of the Restatement in Women Prisoners
of Dist. of Columbia Dept. of Corrs. v. Dist. of Columbia to explain its rejection of the
defendants’ argument there that “the common law of torts forbids injunctive relief to prevent
future torts”:
In negligence actions where irreparable injury is threatened, a court
may act by injunction to prevent harm before it occurs … The
threatened tort must be of sufficient seriousness and imminence to
justify coercive relief. 42
This court will await completion of the briefing before ruling on Greenpeace USA’s
pending motion to dismiss pursuant to Rule 12(b)(6).
But in light of the foregoing
preliminary analysis, this court will proceed to the merits of Shell’s pending Motion for
Preliminary Injunction with respect to the United States territorial sea and ports.
Shell’s Motion for Preliminary Injunction
Plaintiffs seeking preliminary injunctive relief must establish that “(1) they are likely to
succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of
40
REST. 2D TORTS § 933.
41
Id.
42
899 F. Supp 659, 666 (D.D.C. 1995) (citing PROSSER AND KEETON ON THE LAW OF TORTS, Ch. 5,
§ 30 p. 165 n. 8 (5th ed. 1984); REST. 2D TORTS § 933).
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preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary
injunction is in the public interest.”43 “Under the ‘sliding scale’ approach to preliminary
injunctions observed in [the Ninth Circuit], ‘the elements of the preliminary injunction test
are balanced, so that a stronger showing of one element may offset a weaker showing of
another.’” 44 But in any event, even with the sliding scale approach, “plaintiffs must
establish that irreparable harm is likely, not just possible, in order to obtain a preliminary
injunction.” 45
Injunctive relief is an equitable remedy, and “[t]he essence of equity
jurisdiction is the power of the court to fashion a remedy depending upon the necessities of
the particular case.” 46
This court has previously assessed these factors when granting Shell’s motion for a
Temporary Restraining Order. The record now before the court is more developed. This
order is based on the more recent submissions of both parties and arguments of counsel
regarding the Motion for Preliminary Injunction. Upon review of that record, this court finds
as follows:
43
Sierra Forest Legacy v. Ray, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter, 555 U.S. at 20).
44
Pimentel v. Dreyfus, __ F.3d __, 2012 WL 639302, *7 (9th Cir. 2012). See also Alliance for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (2011) (discussing post-Winter circuit split over
continuing viability of the sliding scale approach and joining the Seventh and Second Circuits in
retaining it).
45
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (emphasis in
original). In Winter, the Supreme Court held that the mere possibility of injury is not enough; the
movant must, at a minimum, demonstrate the likelihood of irreparable injury. Winter v. Natural
Resources Defense Council, 555 U.S. 7, 22 (2008) (the Supreme Court’s “frequently reiterated
standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely
in the absence of an injunction.”) (citations omitted).
46
Sierra Forest, 577 F.3d at 1022 (citing United States v. Odessa Union Warehouse Co-op, 833
F.2d 172, 175 (9th Cir. 1987)).
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1. The likelihood of success on the merits
As discussed above, 47 the law recognizes that a party may seek injunctive relief to
prevent threatened illegal or tortious conduct. To obtain injunctive relief, plaintiffs must
show themselves to be
under threat of suffering “injury in fact” that is concrete and
particularized; the threat must be actual and imminent, not conjectural
or hypothetical; it must be fairly traceable to the challenged action of
the defendant; and it must be likely that a favorable judicial decision
will prevent or redress the injury. 48
Here, Shell has submitted persuasive evidence that it is under threat of an injury in
fact that is concrete and particularized. Greenpeace USA’s website opens to a photo of
three polar bears on which the words “STOP SHELL” are prominently displayed. The “O” in
the word “STOP” has been replaced by Shell’s logo surrounded by oil. 49
The website
encourages individuals to send an e-mail to the President of Shell US protesting Shell’s
Arctic exploration plans – an action that Shell is not seeking to enjoin in this litigation. But
Greenpeace USA’s efforts to “stop Shell” are not limited to an e-mail campaign. The record
demonstrates that Greenpeace USA also fully endorsed the conduct the New Zealand
activists involved in the incident with the Noble Discoverer, describing them as “our
activists.” As that incident was pending, Greenpeace USA’s website stated the following:
Today a Shell drill ship attempted to sail towards the Arctic to begin
drilling for oil off the coast of Alaska – but it didn’t get far. Activists are
blocking the departure of the ship, which is scheduled to begin drilling
in treacherous Arctic Waters later this year …
47
See supra at 8-11.
48
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).
49
See, e.g., Ex. 1057 at 0008.
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Take action alongside our activists now. Demand Shell stop their
plans to put the fragile Arctic and its biodiversity at risk. 50
At the hearing on the preliminary injunction motion, Greenpeace USA’s general
counsel, Thomas Wetterer, testified that peaceful direct action, including illegal activity, is
one of the tools in Greenpeace USA’s “big toolkit of tactics.”51 And while Mr. Wetterer
testified that coal is one of Greenpeace USA’s priority campaigns, and that Shell’s Arctic
exploratory drilling plan was not a priority campaign, this court was not at all persuaded by
that testimony, since it was so completely at odds with Greenpeace USA’s website. 52
This court has also considered Greenpeace USA’s actions and inactions within the
context of the global Greenpeace organization. On the record currently before this court,
Shell has not demonstrated that Greenpeace USA was directly involved in either the New
Zealand or Finnish incidents involving Greenpeace activists on Shell-contracted vessels.
Nor is Shell seeking damages from Greenpeace USA for those incidents at this time.
But this court finds that the web pages and other materials of the various national
Greenpeace organizations, including Greenpeace USA, and Greenpeace International
demonstrate that stopping Shell and other oil companies from drilling in the Arctic is more
likely than not one of the overall priority strategies of Greenpeace worldwide, as well as of
Greenpeace USA. The same or similar “STOP SHELL” photo has appeared on virtually all
50
Ex. 1058 at 0001.
51
Tr. of Prelim. Inj. Hearing at 109 (Docket 78).
52
With both parties’ agreement, this court has recently viewed Greenpeace USA’s website. On
March 26, 2012, the titles of the three articles on the home page listed under “In the spotlight” were:
“23 years later and Shell has learned nothing from the Exxon Valdez disaster”; “Save the Arctic,”
which contains a portion of Shell’s logo and begins, “Right this minute a global fleet of Arctic
destroyers is speeding towards one of the last unspoiled places on earth. The ships are part of oil
giant Shell’s mission to drill . . .”; and “Let’s not blow up Mars before we get there, we just might
need it,” which addressed the Bering Sea.
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of the various national Greenpeace organization web pages throughout the world. 53
Greenpeace describes itself as a worldwide organization, with “more than 40 Greenpeace
offices around the world, with international coordination taking place through our
headquarters in Amsterdam – making us one of the few environmental groups that truly
works globally on environmental problems.” 54
Mr. Wetterer testified on behalf of
Greenpeace USA that executive directors of each of the national Greenpeace offices meet
regularly with Greenpeace International to determine an overall global strategy. 55
Greenpeace USA’s Executive Director is quoted in Greenpeace International’s 2010
Annual Report as stating the following:
Bold non-violent direct action took the struggle against climate change
to one of its frontiers in 2010 – the Arctic Ocean. Companies such as
the UK’s Cairn Energy see the Arctic’s receding ice sheets as an
opportunity to make profits from risky oil drilling operations.
Greenpeace couldn’t disagree more. 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. 56
Similarly, in a 2011 operation, Greenpeace activists again boarded a Cairn oil rig off
the coast of Greenland. One of the activists is quoted as stating:
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
53
See Ex. 1031-0001 to 0042.
54
Ex. 1002 at 0001.
55
Tr. of Prelim. Inj. Hearing at 108 (Docket 78).
56
Ex. 1014 at 0005.
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survival pod. To drill for oil here would be dangerous insanity. We
have to stop the Arctic oil rush. 57
This court has also accorded a minor degree of weight to the fact that there is no
sworn statement in this record from Greenpeace USA indicating that the organization will
not attempt tortious or unlawful acts this summer against Shell. 58 Instead, on March 23,
2012, Greenpeace USA’s Executive Director posted an article on a Huffington Post blog
that stated, “Arctic drilling is one of the great mistakes of our age and it will not be allowed
to happen. Whatever happens in court, Greenpeace will continue to oppose Shell’s plans
peacefully and vigorously. . .” 59 As noted in the Restatement of Torts, “[a] defendant may
threaten a tort not only by utterances that express an intention to commit a tort, but also by
action or inaction that, under the circumstances, shows that there is a dangerous
probability that he will commit a tort.” 60 This court finds that the natural response by
Greenpeace USA to Shell’s accusations against it would have been to deny any intention to
commit illegal or tortious acts against Shell. But no such response has been made by
Greenpeace USA in this record. 61
57
Ex. 1020 at 0001.
58
See Tr. of Prelim. Inj. Hearing at 153 (Docket 78).
59
Ex. 1, p. 2 to Decl. of Jeffrey W. Leppo (Docket 80).
60
REST. 2D TORTS § 933. See also Fed. R. Evid. 801(d)(2) and Commentary (“When silence is
relied upon [as an admission of a party opponent], the theory is that the person would, under the
circumstances, protest the statement made in his presence, if untrue.”).
61
Cf. U.S. v. Henke, 222 F.3d 633, 642 (9th Cir. 2000) (“The first issue is whether the court
properly admitted Desaigoudar's out-of-court response – “next question please” – to an accusation
in a press conference that the defendants were “cooking the books.” The district court found
that . . . under the circumstances, the natural response to such an accusation would be to address
or deny it. It therefore admitted the statement as an adoptive admission. . . It was within its
discretion to do so.”).
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This court also finds that threatened illegal or tortious conduct within U.S. controlled
waters would be fairly traceable to Greenpeace USA, as the record demonstrates that
Greenpeace USA controls all Greenpeace operations in the United States. 62 As such, this
court finds it likely that granting preliminary injunctive relief against Greenpeace USA will
likely prevent the injury Shell seeks to avoid.
This court has also considered the uncontradicted evidence Greenpeace USA
presented to this court that its recent Florida training camp was unrelated to the concerns
raised by Shell in this action. 63 And counsel for Greenpeace USA correctly noted at the
preliminary injunction hearing that the Kulluk has been at port in Seattle since last fall
without any disturbance from Greenpeace USA. 64 But upon consideration of all the
evidence presently before this court with respect to the Motion for Preliminary Injunction,
Shell has demonstrated by a preponderance of the evidence that it is likely that
Greenpeace USA would intend to commit tortious or illegal acts against Shell’s Arctic
drilling operations in the absence of preliminary injunctive relief.
2. The likelihood of irreparable harm in the absence of preliminary relief
The second component for injunctive relief requires consideration of the likelihood of
irreparable harm to Shell if preliminary relief is not accorded to it. Greenpeace USA asserts
that if it is successful in stopping Shell from drilling in the Arctic this summer, it would not
cause Shell any irreparable harm. Rather, Greenpeace USA asserts “it would result in a
62
See Tr. of Prelim. Inj. Hearing at 125 (Docket 78); Ex. 1068-0002.
63
Decl. of Nathan Santry at 2 (Docket 42).
64
See Tr. of Prelim. Inj. Hearing at 148 (Docket 78).
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delay of a season, for which they can put a dollar figure.” 65 Greenpeace USA correctly
maintains that economic damages are not traditionally considered irreparable harm
because an economic injury can be later remedied by a damages award. “[I]f plaintiff either
can bring a legal action and seek damages that will compensate him fully, or if plaintiff can
assert his claim as a defense in some other proceeding, the alternative remedy is
adequate,”66 and equitable relief should be denied.
“The mere fact that economic damages may be available does not always mean that
a remedy at law is ‘adequate.’” 67 As Wright & Miller have explained:
[I]f plaintiff shows that a monetary award would be speculative
because the amount of damage would be difficult or impossible to
measure, or if plaintiff demonstrates that effective legal relief can be
secured only by a multiplicity of actions, as, for example, when the
injury is of a continuing nature, so that plaintiff would be required to
pursue damages each time he was injured, equitable relief will be
deemed appropriate. Plaintiff also may satisfy the adequacy
prerequisite by demonstrating that damages would not adequately
compensate him. Illustratively, if defendant's acts pose a threat to
some unique property interest, so that the injury will be irreparable
and damages will not compensate for the loss of that property, the
court may issue an injunction inasmuch as there is no adequate legal
remedy. 68
In Continental Airlines v. Intra Brokers, Inc., a Ninth Circuit case, Continental brought
suit against a travel agency for the unauthorized resale of Continental-issued discount
coupons, against the terms printed on the coupons and Continental’s express
65
Id. at 150.
66
W RIGHT & MILLER § 2944.
67
Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011).
68
WRIGHT & MILLER § 2944.
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instructions. 69 Though Continental was unable to establish definitively how it would be
harmed, the Ninth Circuit did not see this as a bar to the availability of an equitable remedy:
This difficulty of establishing economic harm to Continental, lack of
proof of damages, and possible immeasurability or unascertainability
of harm, does not mean Continental was not harmed. . . .“where the
threat of injury is imminent and the measure of that injury defies
calculation, damages will not provide a remedy at law.” 70
Accordingly, the court found that “[t]he difficulty and probable expense of establishing the
amount of economic harm supports the proposition that damages would be an inadequate
remedy.” 71 Similarly, this court finds that if Greenpeace USA successfully disrupted Shell’s
operations, calculating the amount of economic harm would be very difficult.
Greenpeace USA cites to Rent-A-Center, Inc. v. Canyon Televisions and Appliance
Rental, a case which involved a dispute between a buyer and seller of a business with
respect to a covenant not to compete. 72 But there, the district court’s preliminary injunction
was upheld based on a finding that the purchaser’s potential losses were not solely
economic, but also involved intangible injuries, such as damage to advertising efforts and
goodwill, which the Ninth Circuit held constituted irreparable harm.
Similarly, the harms alleged by Shell are not purely economic. The declarations
submitted by Shell in support of its motion persuasively demonstrate that illegal or tortious
efforts to board or interfere with the vessels would be likely to “present unacceptable risks
69
24 F.3d 1099 (9th Cir. 1994).
70
Id. at 1105.
71
Id.
72
944 F. 2d 597, 603 (9th Cir. 1991).
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to human life, property and the environment.”73 With respect to Shell’s planned activities in
U.S. ports and within U.S. territorial waters, this court was fully persuaded by Shell’s
declarations as to the likelihood of irreparable harm to human life, property, and/or the
environment if Greenpeace USA activists were to attempt actions similar to those
undertaken by other Greenpeace activists in New Zealand, Finland, or off the coast of
Greenland. It is well established that demonstrated risks to health and safety constitute the
type of irreparable harm for which there is no adequate remedy at law. 74 In sum, based on
the record before this court, Shell has demonstrated a likelihood of irreparable harm in the
absence of preliminary injunctive relief.
3. The balance of the equities
The third requirement that a moving party must show in order to obtain a preliminary
injunction is that the balance of equities tips in its favor.
Over the next several weeks, Shell plans to mobilize its 2012 Arctic exploration fleet.
By July, it seeks to conduct legally authorized exploration activities on federally managed
73
Decl. of Stephen J. Phelps at 4 (Docket 64). Although the aviation operations are not before the
court at this time, this court found particularly compelling the declaration of William Kupchin
regarding the safety risks with respect to aviation operations. This court was not persuaded by
Greenpeace’s expert’s declaration that described the presence of Greenpeace aircraft flying
overhead of Shell’s drilling operations as “little more than an annoyance – not a safety threat.”
Rather, this court was persuaded by Mr. Kupchin’s declaration on behalf of Shell, which clearly
explained the significant safety risks that would be presented were Greenpeace aircraft to fly near
Shell’s drilling operations over the Outer Continental Shelf. See Decl. of Stephen J. Phelps at 1315 (Docket 64); Decl. of John Kaighin at 4-7 (Docket 66).
74
See, e.g., Heather K. by Anita K. v. City of Mallard, Iowa, 887 F. Supp. 1249, 1266 (N.D. Iowa
1995) (“As to ‘irreparable harm,’ continued open burning poses a very real health threat, possibly
even a mortal threat, to Heather K. for which she has no adequate remedy at law.”); Texaco Indep.
Union of Coraopolis Terminal v. Texaco, Inc., 452 F. Supp. 1097, 1107 (D.C. Pa. 1978) (“no
adequate remedy at law or in arbitration” for threats to health and safety of employees) (citing
United Steelworkers v. Blaw-Knox Foundry and Mill Mach., Inc., 319 F. Supp. 636, 641 (W.D.
Pa.1970)).
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Outer Continental Shelf oil and gas leases in the Beaufort and Chukchi Seas. To the
extent that the competing interests of Greenpeace USA are illegal or tortious activities, the
balance of equities undoubtedly tips to Shell. 75
But Greenpeace USA asserts that
according preliminary injunctive relief to Shell that includes safety zones around Shell’s
vessels would impinge upon Greenpeace USA’s rights to monitor Shell’s activities and
engage in other legal activities in protest against Shell’s Arctic drilling activities. 76
Greenpeace USA correctly notes that the OCSLA recognizes the important role that
environmental organizations such as Greenpeace USA may play in legal proceedings
regarding the development of the Outer Continental Shelf. 77 And certainly Greenpeace
USA’s members have a First Amendment right to protest vigorously against Shell’s
exploration drilling activity, so long as such protest is done in a manner consistent with the
law. This court acknowledges that the establishment of safety zones in a preliminary
injunction that limits Greenpeace USA from approaching too close to Shell’s vessels could
have an impact on Greenpeace USA’s otherwise legal activities.
Greenpeace USA cites to the U.S. Supreme Court’s decision in Schenck v. ProChoice Network of Western New York in support of its position. 78 Schenck addressed the
constitutionality on First Amendment grounds of an injunction preventing abortion
protestors who had a history of blockading, barricading, and trespassing at abortion clinics
75
See., e.g., Dish Network LLC v. Delvecchio, 2011 U.S. Dist. LEXIS 116019, *17 (W.D.N.Y. 2011)
(where “[t]he only hardship to Defendant from this injunction would be to prevent him from engaging
in further illegal activity . . . the balance [of hardships] clearly weighs in Plaintiffs' favor.”).
76
Greenpeace USA’s Opp’n to Mot. for Prelim. Inj. at 32-33.
77
Id. at 32 (citing Ctr. for Biological Diversity v. U.S. Dept. of Interior, 563 F.3d 466, 479 (D.C. Cir.
2009)).
78
519 U.S. 357 (1997). See Greenpeace USA’s Opp’n to Mot. for Prelim. Inj. at 35-36.
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from entering fixed and floating buffer zones around the clinics. The fixed buffer zones
banned the protestors from demonstrating within 15 feet of designated areas at the clinics;
the floating buffer zones banned most of the protestors from demonstrating 15 feet from
any person or vehicle seeking access to or leaving the clinics.
The Supreme Court identified the mechanism for determining the constitutionality of
an injunction restricting speech, which it had formulated in Madsen v. Women's Health Ctr.,
Inc.: if the injunction burdens no more speech than necessary to serve a significant
government interest, it does not offend the First Amendment. 79 After identifying the
relevant government interests as “ensuring public safety and order, promoting the free flow
of traffic on streets and sidewalks, protecting property rights, and protecting a woman's
freedom to seek pregnancy-related services,”80 the Schenck Court found the floating buffer
zones unconstitutional because the safety and practicality issues associated with the
moving zones would unduly burden the protestors’ speech. 81 However, the Court upheld
the injunction’s fixed buffer zones as not unduly burdensome. 82
But central to the Supreme Court’s ruling in Schenck was its observation that speech
on public sidewalks is a “protypical example of a traditional public forum.”83 In contrast,
79
Schenck, 519 U.S. at 372 (citing Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 765
(1994)).
80
Id. at 376.
81
Id. at 377-80. This court recognizes that the safety zones proposed here by Shell are, in a literal
sense, floating. But this court finds that the Schenck Court’s ruling on the unconstitutionality of
floating buffer zones is sufficiently distinguishable because of Schenck’s decidedly non-aquatic
context.
82
Id. at 380-81.
83
Id. at 377.
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the ports and territorial sea of the United States clearly do not constitute such a forum.
Rather, these are areas in which the safe operation of marine commerce is a significant
public interest. And unlike the employees and patients going to the abortion clinics,
Greenpeace USA’s targeted audience would presumably not be on the territorial sea.
Greenpeace USA is free to espouse its message away from Shell’s vessels. 84 If fixed
buffer zones on trafficked public sidewalks are constitutional under Schenck, then safety
zones surrounding Shell’s vessels while moving at sea are certainly constitutionally
permissible. By carefully tailoring preliminary injunctive relief to focus on illegal and tortious
conduct, and minimizing any impact on Greenpeace USA’s right to monitor the activities
and peacefully protest against Shell within the confines of the law, this court concludes that
the balance of the equities remains solidly tipped in Shell’s favor.
4. The injunctive relief must be in the public interest
“The public interest analysis for the issuance of a preliminary injunction requires us
to consider whether there exists some critical public interest that would be injured by the
grant of preliminary relief.”85 The public interest is not disserved by an injunction that
precludes illegal or tortious conduct. 86 And for much the same reason that this court has
concluded that the balance of equities tips in favor of preliminary injunctive relief, this court
concludes that so long as the scope of injunctive relief is narrowly tailored, then the impact
84
The Schenck Court additionally explained that the prophylactic measure of an injunction was
particularly appropriate to the situation, as police were unable to respond quickly to problems due to
the nature of the protest. Id. at 382. This court finds that rationale applicable to this case as well for
vessels at sea.
85
Cal. Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098, 1114-15 (9th Cir. 2010) (citation
omitted).
86
See., e.g., Dish Network LLC v. Delvecchio, 2011 U.S. Dist. LEXIS 116019, *17 (W.D.N.Y. 2011).
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on Greenpeace USA’s legitimate interests in monitoring and legally protesting Shell’s
activities can be minimized. A key factor here is to insure that Greenpeace USA is
accorded ample alternative means of communicating its message to its intended
audience. 87
Based on the foregoing analysis, this court finds that Shell is entitled to a preliminary
injunction with respect to the vessels it intends to employ during its 2012 Arctic exploratory
drilling activities, with such injunctive relief at this time limited to ports within the United
States and its territories, and the United States 12-mile territorial sea.
Scope of the Preliminary Injunction
1. Persons to be bound by the injunction.
Shell’s proposed Preliminary Injunction would extend the reach of the order to
Greenpeace USA as well as its “agents, servants, employees, members and affiliates, and
all others acting in concert or participation with Greenpeace, Inc.” 88 This language differs
from the language set forth in Civil Rule 65(d)(2) – which indicates that the order may
extend to “the parties’ officers, agents, servants, employees, and attorneys,” as well as
“other persons who are in active concert or participation” with any of the above-described
persons. 89
87
Heffron v. Int’l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981) (“The First
Amendment protects the right of every citizen to ‘reach the minds of willing listeners and to do so
there must be opportunity to win their attention.’”) (citation omitted); Schenck, 519 U.S. at 377.
88
See Attach. A to Shell’s Reply to Mot. for Prelim. Inj. (Docket 61-1).
89
Fed. R. Civ. P. 65(d)(2)(B) and (C).
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This court declines to deviate from the precise language of Civil Rule 65(d) regarding
the identification of those persons to be bound by the injunction. 90
2. Publication of the injunction
Shell seeks to require Greenpeace USA to publish the injunction on its website. The
case law cited by Shell upholding such requirements addressed illegal activity in
commercial contexts. In Shell’s primary authority on this subject, U.S. v. Schiff, the Ninth
Circuit explicitly stated that it was upholding the district court’s publication order on the
basis of the government’s authority “to regulate content to prevent the deception of
customers” in “commercial settings.” 91 As Greenpeace USA is a non-profit entity, the facts
before this court are markedly different from the cases cited by Shell. Even if the First
Amendment is not implicated, this court declines to order this form of preliminary injunctive
relief at this time.
3. Establishment of safety zones
Shell has sought to have moving safety zones established around each of its
vessels included within the terms of a preliminary injunction. Through the declaration of
John Kaighin, 92 Shell has persuasively demonstrated that its proposed safety zones for
each of the vessels are warranted while the vessels are in transit in U.S. territorial waters.
This court was not persuaded by counsel for Greenpeace’s argument at the hearing on the
motion for the preliminary injunction that safety zones of this nature could be problematic
90
See generally W RIGHT & MILLER § 2956 at 356-357.
91
379 F.3d 621, 631 (9th Cir. 2004) (citing Zauderer v. Office of Disciplinary Counsel of the Sup.
Ct. of Ohio, 471 U.S. 626, 650–51 (1985)).
92
Docket 66.
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because they might require a Greenpeace vessel to depart from basic navigational
principles in order to comply with this court’s order, which would be unexpected by other
mariners. 93 Nor was the declaration of Captain Ford on behalf of Greenpeace USA
persuasive in this regard. 94 His assertion that the establishment of a safety zone solely for
Greenpeace USA would violate the International Rules for the Prevention of Collisions at
Sea (Navigation Rules) and the International Convention on the Law of the Sea (UNCLOS)
was not persuasive to this court because he did not point to any provision in those rules
that would preclude a court from enjoining one limited set of vessels from approaching too
close to another limited set of vessels.
CONCLUSION
Shell’s Motion for a Preliminary Injunction is GRANTED in part at this time, and IT IS
ORDERED as follows:
1. This order applies to each of the following vessels when located within all United
States navigable and territorial waters (i.e., within 12 miles of the baseline
shore), and when located in port within the United States and its territories:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
Noble Discoverer
Kulluk
Nordica
Fennica
Toisa Dauntless
Tor Viking II
Harvey Explorer
Harvey Spirit
Harvey Sisuaq
Aiviq
93
Tr. of Prelim. Inj. Hearing at 159-60 (Docket 78).
94
Docket 43.
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xi.
xii.
xiii.
xiv.
xv.
xvi.
xvii.
xviii.
xix.
Nanuq
Guardsman
Klamath
Arctic Challenger
Z Big 1
Lauren Foss
Corbin Foss
Arctic Endeavour
Point Oliktok
2. With respect to each of the above-described vessels, Greenpeace, Inc. (also
known as Greenpeace USA) and its officers, agents, servants, employees, and
attorneys, and all others who are in active concert or participation with
Greenpeace, Inc. (also known as Greenpeace USA) and/or its officers, agents,
servants, employees, and attorneys, (collectively “Greenpeace”), who receive
actual notice of this order by personal service or otherwise, are enjoined from:
a. Breaking into or trespassing on the vessels;
b. Tortiously or illegally interfering with the operation, movement or progress of
the vessels;
c. Barricading, blocking, or preventing access to or egress from the vessels;
and
d. Tortiously or illegally endangering or threatening any employee, contractor or
visitor of Shell or any of its affiliates who is present on, or as they enter or
exit, the vessels.
3. Greenpeace, Inc. (also known as Greenpeace USA) and its officers, agents,
servants, employees, and attorneys, and all others who are in active concert or
participation with Greenpeace, Inc. (also known as Greenpeace USA) and/or its
officers,
agents,
servants,
employees,
and
attorneys,
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(collectively
“Greenpeace”), who receive actual notice of this order by personal service or
otherwise, are enjoined from entering the safety zones established by paragraph
4 of this Order.
4. The following safety zones are established:
a. From the date of this order until October 31, 2012, while in transit upon U.S.
navigable and territorial waters (i.e., within 12 miles of the baseline shore),
around the following vessels (including surface and subsurface areas):
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.
xvii.
xviii.
xix.
Noble Discoverer:
Kulluk:
Nordica:
Fennica:
Toisa Dauntless:
Tor Viking II:
Harvey Explorer:
Harvey Spirit:
Harvey Sisuaq:
Aiviq:
Nanuq:
Guardsman:
Klamath:
Arctic Challenger:
Z Big 1:
Lauren Foss:
Corbin Foss:
Arctic Endeavour:
Point Oliktok:
1000 meters (m).
1000 m.
500 m.
500 m.
500 m; 1000 m when towing.
500 m; 1000 m when towing.
500 m.
500 m.
500 m
500 m; 1000 m when towing.
500 m.
500 m.
500 m; 1000 m when under tow.
500 m; 1000 m when under tow.
500 m; 1000 m when under tow.
500 m; 1000 m when towing.
500 m; 1000 m when towing.
500 m; 1000 m when under tow.
500 m; 1000 m when towing.
b. Each of the above-listed safety zones in subparagraph (a) shall be reduced
to 100 meters for vessels transiting through narrow channels designated as
piloted waters.
5. Pursuant to this court’s Temporary Restraining Order, Shell has deposited with
the clerk of court a cash bond in the amount of Five Thousand Dollars
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($5,000.00). Shell shall maintain the deposited cash bond for purposes of this
Preliminary Injunction.
6. This Preliminary Injunction is effective as of the date of this order and shall
remain in effect until October 31, 2012 unless modified by further order of this
court. Greenpeace USA may by motion seek to modify this order so as to permit
Greenpeace to more closely monitor Shell’s activities within the safety zones
established by this order at such specific times, locations, and conditions that
this court may order after each party has been accorded an opportunity to be
heard on any such motion.
7. Greenpeace USA’s Motion for Stay of Preliminary Injunction Pending Resolution
of Motions to Dismiss is granted in part with respect its Rule 12(b)(1) motion
concerning Shell’s land-based facilities and its planned operations within the
United States Exclusive Economic Zone. The Motion to Stay is denied in all
other respects. Likewise, Greenpeace USA’s motion to dismiss pursuant to Rule
12(b)(1) is denied with respect to United States territorial waters and ports as set
forth in this order. This court may enter a supplemental or revised Preliminary
Injunction after determination of the remaining portions of Greenpeace USA’s
motions to dismiss that this court has deferred on this date.
DATED at Anchorage, Alaska, this 28th day of March, 2012 at 4:00 p.m.
/s/ Sharon L. Gleason
United States District Judge
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