Shell Offshore, Inc. v. Greenpeace, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHELL OFFSHORE , INC., a Delaware No. 12-35332
corporation; SHELL GULF OF
MEXICO , INC., a Delaware D.C. No.
corporation, 3:12-cv-00042-
Plaintiffs-Appellees, SLG

v.
OPINION
GREENPEACE , INC., a California
corporation,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding

Argued and Submitted
October 9, 2012—Seattle, Washington

Filed March 12, 2013

Before: Alex Kozinski, Chief Judge, A. Wallace Tashima
and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Tashima;
Partial Concurrence and Partial Dissent by
Judge Milan D. Smith, Jr.
2 SHELL OFFSHORE V . GREENPEACE

SUMMARY*

Maritime Law / Preliminary Injunction

The panel affirmed the district court’s preliminary
injunction, which prohibited Greenpeace USA from coming
within a specified distance of vessels involved in an oil
company’s exploration of its Arctic Outer Continental Shelf
leases and from committing various unlawful and tortious
acts against those vessels as they journeyed from shore-based
facilities in the United States, through United States territorial
waters, and into the waters of the U.S. Exclusive Economic
Zone, where rigs attach to the Arctic seabed and conduct
exploration activities.

The panel held that Shell Offshore, Inc., and Shell Gulf of
Mexico, Inc., had standing to seek injunctive relief and that
the dispute was ripe. The panel concluded that even though
the preliminary injunction, limited to a single Arctic Ocean
open water season, had expired, the case was not moot
because it fell within the exception for disputes capable of
repetition, yet evading review.

Greenpeace USA did not dispute that, with regard to
injunctive relief in the United States and its territorial waters,
the district court had diversity jurisdiction, nor that the Outer
Continental Shelf Lands Act gave the court jurisdiction to
grant injunctive relief while Shell’s vessels were attached to
the seabed. The panel did not decide whether, under 28
U.S.C. § 1333, the district court also had admiralty

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 SHELL OFFSHORE V . GREENPEACE 3

jurisdiction to enjoin conduct relating to vessels transiting
through the U.S. Exclusive Economic Zone. Instead, the
panel held that the district court could exercise supplemental
jurisdiction over the entire case because a common nucleus
of operative facts underlay Shell’s claim for injunctive relief.

The panel affirmed the district court’s conclusion that
Greenpeace USA was the proper entity to enjoin. The panel
also affirmed the district court’s conclusions that Shell had
shown (1) a likelihood of success on the merits of its claim
that Greenpeace USA would commit tortious or illegal acts
against the Arctic drilling operation absent an injunction and
(2) that the resulting harm would be irreparable. In addition,
the district court did not abuse its discretion in concluding
that the balance of the equities and the public interest favored
Shell.

Judge M. Smith concurred with Parts III and IV of the
majority opinion addressing justiciability and jurisdiction.
He dissented from the majority’s holding that Shell could
impute the illegal actions of other independent Greenpeace
entities to Greenpeace USA in order to meet Shell’s burden
of proof for preliminary injunctive relief.

COUNSEL

Rebecca J. Hozubin and Michael A. Moberly (argued), Law
Office of Hozubin & Moberly, Anchorage, Alaska, for
Defendant-Appellant.
4 SHELL OFFSHORE V . GREENPEACE

Jeffrey W. Leppo (argued), Ryan P. Steen and Jason T.
Morgan, Stoel Rives, LLP Seattle, Washington; James
Torgerson, Stoel Rives LLP, Anchorage, Alaska, for
Plaintiffs-Appellees.

OPINION

TASHIMA, Circuit Judge:

Shell Offshore, Inc. and Shell Gulf of Mexico, Inc.
(together, “Shell”) hold multi-year oil and gas leases in the
Outer Continental Shelf (“OCS”), located in the Arctic Ocean
off the coast of Alaska. Greenpeace, Inc. (“Greenpeace
USA”) has publicly undertaken a campaign to “stop Shell”
from drilling in the Arctic. The district court granted Shell’s
motion for a preliminary injunction, which prohibited
Greenpeace USA from coming within a specified distance of
vessels involved in Shell’s Arctic OCS exploration and from
committing various unlawful and tortious acts against those
vessels. Greenpeace USA argues that the action is not
justiciable, that the district court lacked subject matter
jurisdiction to issue its order, and that the court erred in its
application of Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7 (2008), to the merits of Shell’s motion. We
conclude that the action presents a justiciable case or
controversy, that the district court had jurisdiction to issue its
order, and that it did not abuse its discretion in doing so.
Accordingly, we affirm.
 SHELL OFFSHORE V . GREENPEACE 5

I. BACKGROUND

A. Greenpeace Efforts to Stop Arctic Drilling

Shell has presented evidence that Greenpeace USA and
Greenpeace entities around the world are publicly committed
to stopping Shell’s exploration of its Arctic OCS leases.
Indeed, the websites of virtually all Greenpeace
organizations, including Greenpeace USA, prominently
feature a campaign to “stop Shell.”

But “stop Shell” is not merely a campaign of words and
images. Greenpeace USA also uses so-called “direct actions”
to achieve its goals, and its general counsel has conceded that
direct action can include illegal activity. There is evidence
that Greenpeace USA and its counterparts around the globe
are united in the goal of stopping Shell. When Greenpeace
activists forcibly boarded an oil rig off the coast of Greenland
in 2010 and used their bodies to impede a drilling operation,
Greenpeace USA’s executive director described their conduct
as “bold non-violent direct action” by “our activists.”
Greenpeace USA similarly endorsed the forcible boarding of
a Shell vessel by Greenpeace New Zealand activists in
February 2012, again referring to them as “our brave
activists.”

The record before the district court contained evidence
that Greenpeace activists used illegal “direct action” to
interfere with legal oil drilling activities on many such
occasions. Several incidents involved Shell vessels that were
subsequently named in the district court’s preliminary
injunction order and used in Shell’s 2012 Arctic OCS drilling
operation. See Shell Offshore Inc. v. Greenpeace, Inc.,
6 SHELL OFFSHORE V . GREENPEACE

864 F. Supp. 2d 839, 854–55 (D. Alaska 2012). These
incidents were as follows:

1. Direct Action Against Shell’s Harvey Explorer
Vessel

Greenpeace USA activists unlawfully boarded the Harvey
Explorer, a vessel that Shell contracted to use in its Arctic
OCS operation, in May 2010. The vessel was in the Gulf of
Mexico (and scheduled to depart for Alaska) when activists
boarded it, unfurled banners, and painted slogans on its
walls.1

2. Direct Action Against Cairn Energy’s Arctic
Drilling Operation

Shell adduced evidence that Greenpeace used direct
action against another energy company, Cairn Energy, in
order to prevent Cairn from conducting OCS oil and gas
exploration activities in the Arctic Ocean. Greenpeace
USA’s executive director described the first such action in
Greenpeace International’s 2010 Annual Report:

In August, our activists evaded Danish navy
commanders and scaled Cairn’s exploration
rig off Greenland, halting the operation – we

1
Greenpeace USA has admitted that its activists boarded the Harvey
Explorer, but now argues – in passing – that the incident is
“jurisdictionally irrelevant to the current case,” presumably because it took
place in the Gulf of Mexico rather than the Arctic Ocean.
 SHELL OFFSHORE V . GREENPEACE 7

knew that, due to very tight deadlines, even a
minor delay could have a major effect; Cairn
didn’t find oil in 2010.

Dkt. 56-19 (Ex. 1015 at 0005).

In 2011, Greenpeace activists again boarded a Cairn
vessel off the coast of Greenland. Approximately twenty
such activists were arrested after climbing the rig, attaching
themselves under the rig in a “survival pod,” and hanging a
few meters from the drill bit. A news report posted on the
Greenpeace Africa website quoted one of the “climbers” as
saying:

There’s no way Cairn can drill for oil while
we’re hanging next to their drill-bit, and it’s
going to be extremely difficult for them to
remove our survival pod. To drill oil here
would be dangerous insanity. We have to
stop the Arctic oil rush.

Dkt. 56-25 (Ex. 1020 at 0001).

3. Direct Action Against Shell’s Noble Discoverer
Vessel

In February 2012, six Greenpeace New Zealand activists
illegally boarded and occupied the Shell drillship Noble
Discoverer while it stopped at New Zealand on its way to the
Arctic Ocean. Activists equipped with survival gear scaled
the 53-meter drilling tower, secured themselves to the rig, and
unfurled “stop Shell” banners. They were arrested by New
Zealand authorities four days later. Greenpeace USA, in its
blog, endorsed the activists’ conduct and described them as
8 SHELL OFFSHORE V . GREENPEACE

“our brave activists.” Dkt. 11-14 at 2. Its website described
the incident as “only the first chapter in what will
undoubtedly be an epic battle.”

4. Direct Action Against Shell’s Nordica and Fennica
Vessels

In March 2012, Greenpeace activists boarded and
occupied the Nordica and Fennica, two of Shell’s
“icebreaker” support vessels, while in port in Finland. Again
in May 2012, Greenpeace activists twice boarded and
occupied the Nordica while it transited through Swedish and
Danish waters. Activists chained themselves to the vessel,
dropped weights and other objects in the water to obstruct the
vessel’s propulsion, and created a human blockade using
divers.

B. Preliminary Injunction

Shell was scheduled to begin federally-authorized
exploration of its Arctic OCS leases in 2012. In the months
leading up to the exploration, Shell first obtained a temporary
restraining order and then a preliminary injunction that barred
Greenpeace USA from coming within specified distances of
named Shell vessels2 involved in the OCS exploration. See
Shell Offshore Inc. v. Geenpeace, Inc., 2012 WL 1931537, at
*16 (D. Alaska May 29, 2012) (amended order); Shell
Offshore, 864 F. Supp. 2d at 855 (original order). The
injunction also prevented Greenpeace USA from committing
various tortious and illegal acts against those vessels and their

2
Including within 1000 meters of the Noble Discoverer and the Kulluk.
 SHELL OFFSHORE V . GREENPEACE 9

occupants.3 By its own terms, the injunction expired on
October 31, 2012 – the last day of the 2012 Arctic Ocean
open water season during which Shell would explore its OCS
leases.

Greenpeace USA challenges the injunction on several
grounds: (1) that the dispute does not present a justiciable
case or controversy; (2) that the district court lacked subject
matter jurisdiction; (3) that Shell has sued the wrong
Greenpeace entity; and (4) that the district court based its
ruling on legal standards and factual findings that were
erroneous. We conclude that each of these contentions lacks
merit.

II. STANDARD OF REVIEW

Our standard of review for preliminary injunction appeals
is by now familiar:

3
The injunction barred Greenpeace from:

a. Breaking into or trespassing on [specified] vessels;

b. Tortiously or illegally interfering with the
operation, movement or progress of [specified]
vessels;

c. Barricading, blocking, or preventing access to or
egress from [specified] vessels;

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, [specified] vessels.

Shell Offshore, 864 F. Supp. 2d at 855.
10 SHELL OFFSHORE V . GREENPEACE

We review the district court’s decision to
grant or deny a preliminary injunction for
abuse of discretion. Our review is limited and
deferential. The district court’s interpretation
of the underlying legal principles, however, is
subject to de novo review and a district court
abuses its discretion when it makes an error of
law.

Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d
914, 918 (9th Cir. 2003) (en banc) (internal citations
omitted); see also United States v. Hinkson, 585 F.3d 1247,
1251 (9th Cir. 2009) (en banc) (articulating our two-part test
for abuse of discretion). We review findings of fact for clear
error. Thalheimer v. City of San Diego, 645 F.3d 1109, 1115
(9th Cir. 2011). “Under this standard, [a]s long as the district
court got the law right, it will not be reversed simply because
the appellate court would have arrived at a different result if
it had applied the law to the facts of the case.” Id. (alteration
in original) (internal quotation marks omitted).

We review standing, ripeness, and mootness de novo. See
Doe No. 1 v. Reed, 697 F.3d 1235, 1238 (9th Cir. 2012);
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.
2009). “[W]e have an independent obligation to consider
mootness sua sponte.” NASD Dispute Resolution, Inc. v.
Judicial Council, 488 F.3d 1065, 1068 (9th Cir. 2007)
(internal quotation marks omitted).
 SHELL OFFSHORE V . GREENPEACE 11

III. JUSTICIABILITY

A. Standing and Ripeness

Greenpeace USA’s justiciability arguments are hazy, but
appear to challenge both Shell’s standing to sue and the
ripeness of the dispute. “Article III standing requires an
injury that is actual or imminent, not conjectural or
hypothetical. In the context of injunctive relief, the plaintiff
must demonstrate a real or immediate threat of irreparable
injury.” Cole v. Oroville Union High Sch. Dist., 228 F.3d
1092, 1100 (9th Cir. 2000) (internal quotation marks
omitted). The same facts by which Shell has shown (1) a
likelihood of success on the merits of its claim that
Greenpeace USA would commit tortious or illegal acts
against Shell’s Arctic drilling operation in the absence of an
injunction, and (2) that the resulting harm would be
irreparable, necessarily establish that Shell has standing to
seek injunctive relief. See infra, Parts V.B.1–2.

The dispute is also ripe because the facts are sufficiently
developed and the nature of the dispute warrants prompt
adjudication. See Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967) (explaining that the ripeness inquiry considers “the
fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration”). Shell
presented undisputed evidence that it is only authorized to
explore these leases during the narrow open water season of
July through October, and the district court concluded that it
faced irreparable harm absent injunctive relief; to withhold
decision in such a context would work a serious hardship
upon Shell.
12 SHELL OFFSHORE V . GREENPEACE

B. Mootness

It is undisputed that the preliminary injunction expired by
its own terms on October 31, 2012 – after oral argument, but
before this Court could render a decision. So we must
determine whether the action is moot.4 We conclude that it
falls within the mootness exception for disputes “capable of
repetition, yet evading review.” NAACP, W. Region v. City
of Richmond, 743 F.2d 1346, 1353 (9th Cir. 1984) (internal
quotation marks omitted).

In order for the exception to apply, “(1) the duration of
the challenged action or injury must be too short to be fully
litigated; and (2) there must be a reasonable likelihood that
the same party will be subject to the action again.” Id. As we
recently explained, “[c]ases that qualify under prong one
present controversies of inherently limited duration.” Doe
No. 1, 697 F.3d at 1240. An action is “fully litigated” if it is
reviewed by this Court and the Supreme Court. See Alcoa,
Inc. v. Bonneville Power Admin., 698 F.3d 774, 786–87 (9th
Cir. 2012).

A preliminary injunction limited to a single Arctic Ocean
open water season, that bars Greenpeace USA from
physically interfering with Shell’s Arctic drilling operation,
will never last long enough to allow full litigation because of
the inherently limited duration of the open water season and,
correspondingly, the drilling season. Under its multi-year

4
On November 1, 2012, Shell filed a motion to dismiss the appeal for
mootness, on the grounds that the preliminary injunction had expired by
its own terms. Greenpeace argued in response that the case fell within a
mootness exception. Our ruling today that the case is not moot operates
as a denial of Shell’s motion to dismiss.
 SHELL OFFSHORE V . GREENPEACE 13

lease, Shell is legally authorized to drill only between July 10
and October 31 of each year. The now-expired preliminary
injunction against Greenpeace USA was by its own terms
limited to a total duration of less than seven months,
encompassing the drilling season, plus the time necessary for
Shell vessels to transit to the Arctic Ocean.5 Orders of such
inherently limited duration will almost always evade full
review. See, e.g., United States v. Oregon, 657 F.2d 1009,
1012 (9th Cir. 1985) (holding that American Indian tribe’s
appeal from an injunctive order banning salmon fishing in
1980 was not moot even though the spring salmon run of
1980 was over and the order was limited to that run).

Turning to the second prong, we have every reason to
believe that the underlying wrong will recur. Shell has
drilling rights under a multi-year lease, and there is no reason
to believe that Greenpeace USA’s “stop Shell” campaign was
limited to the 2012 drilling season. We conclude that there is
at minimum a “reasonable expectation that the same
complaining party [will] be subject to the same action again.”
Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

IV. JURISDICTION

The preliminary injunction at issue protects specific Shell
vessels as they journey from shore-based facilities in the
United States, through United States territorial waters, and
into the waters of the U.S. Exclusive Economic Zone

5
The preliminary injunction ran from March 28, 2012, through October
31, 2012. See Shell Offshore, 864 F. Supp. 2d at 855. The district court
did not explain why it so temporally limited the injunction. It appears,
however, from its moving papers, that Shell sought a preliminary
injunction only through the 2012 exploration drilling season.
14 SHELL OFFSHORE V . GREENPEACE

(“EEZ”) where rigs attach to the Arctic seabed and conduct
exploration activities. Greenpeace USA does not challenge
the district court’s conclusion that, with regard to injunctive
relief in the United States and its territorial waters, the court
had subject matter jurisdiction based on diverse party
citizenship. See 28 U.S.C. § 1332(a). Likewise, Greenpeace
USA does not dispute that the Outer Continental Shelf Lands
Act (“OCSLA”) gave the court jurisdiction to grant injunctive
relief while Shell’s vessels are attached to the seabed. See
43 U.S.C. § 1333(a)(1) (extending jurisdiction to the “seabed
of the outer Continental Shelf and to . . . devices permanently
or temporarily attached to the seabed, which may be erected
thereon for the purpose of exploring for, developing, or
producing resources therefrom”).

Greenpeace USA is now solely appealing the district
court’s holding that under 28 U.S.C. § 1333, it had admiralty
jurisdiction to enjoin conduct relating to vessels that were
neither in U.S. territorial waters (where diversity jurisdiction
extends) nor attached to the seabed (where OCSLA
jurisdiction extends) – that is, vessels transiting through the
U.S. EEZ.6 We need not decide whether § 1333 provides
jurisdiction over this particular stretch of an oil rig’s journey
because a court can exercise supplemental jurisdiction over
the entire constitutional case. See 28 U.S.C. § 1367(a). The
common nucleus of operative facts underlying Shell’s claim
for injunctive relief do not change when its vessels traverse
an invisible line separating U.S. territorial waters from the
waters of the U.S. EEZ, nor at the moment when its rigs
detach from the seabed; this is therefore a single “case or

6
See Shell Offshore, 2012 W L 1931537, at *2. The district court did not
reach the question of whether its diversity jurisdiction extended to the
EEZ. Id. at *5 n.42.
 SHELL OFFSHORE V . GREENPEACE 15

controversy” for the purposes of § 1367(a), and we conclude
that the district court did not err in exercising jurisdiction
over it.

V. DISCUSSION

A. Whether Greenpeace USA is the Proper Entity to
Enjoin

A common thread in Greenpeace USA’s various
challenges is the argument that Greenpeace USA was not
directly involved in any prior attacks on Shell vessels. But
Shell does not need to show past injury by Greenpeace USA
to establish standing or to succeed on the merits of its
preliminary injunction motion. See Diamontiney v. Borg,
918 F.2d 793, 795 (9th Cir. 1990) (“[A]s commentators have
noted, ‘the injury need not have been inflicted when
application [for an injunction] is made or be certain to occur;
a strong threat of irreparable injury before trial is an adequate
basis.’ Requiring a showing of actual injury would defeat the
purpose of the preliminary injunction, which is to prevent an
injury from occurring.” (quoting 11 Charles Alan Wright et
al., Federal Practice and Procedure § 2948 at 437–38
(1973)); see also Restatement (Second) of Torts § 933 cmt.
(1)(b) (“[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 prove past wrong.”).

Regardless, Greenpeace USA does not dispute evidence
that its own activists carried out the attack on Shell’s Harvey
Explorer. And, although the record does not make clear
which Greenpeace entity was directly responsible for multiple
attacks on Cairn Energy vessels in the Arctic Ocean,
16 SHELL OFFSHORE V . GREENPEACE

Greenpeace USA’s executive director essentially took credit
for it, describing the perpetrators as “our activists” and
boasting that as a result of this direct action, “Cairn didn’t
find oil in 2010.” Dkt. 56-19 (Exh. 1015 at 0005).
Accordingly, the district court observed that although Shell
had “not demonstrated that Greenpeace USA was directly
involved in either the New Zealand or Finnish incidents”
involving the Noble Discoverer, Nordica, and Fennica, other
evidence showed 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.” Shell Offshore, 864 F. Supp. 2d at
848. We see no clearly erroneous factual findings
undergirding that conclusion.7

7
The dissent argues that Greenpeace USA’s legal status is relevant to
this appeal because “a person (or corporation) can be held legally
responsible only for his own actions, absent extraordinary circumstances.”
Dissent at 25. But this truism, which the dissent derives from cases
involving decisions on the merits, see First Nat’l City Bank v. Banco Para
El Comercio Exterior de Cuba (Bancec), 462 U.S. 611, 618 (1983)
(appeal from dismissal of complaint on the merits); NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 896 (1982) (appeal from judgment imposing
damages liability), has no application to the present context of an appeal
from a preliminary injunctive order. To determine whether Shell has
demonstrated a likelihood of success on the merits, we must engage in a
probabilistic inquiry, an inquiry that simply was not addressed in
Claiborne Hardware and Bancec.

The questionable nature of the dissent’s reliance on merits-based
decisions is further heightened by the limitations inherent in interlocutory
review. Unlike review of a decision on the merits, our preliminary
injunction decisions are both narrow in scope and rendered without benefit
of a fully developed factual record. See Ctr. for Biological D iversity v.
Salazar, — F.3d — , 2013 W L 440727, at *4 (9th Cir. Feb. 4, 2013).
These limitations explain why, as we have observed time and again,
preliminary injunctions decisions are just that – “preliminary.” Id. at *3;
 SHELL OFFSHORE V . GREENPEACE 17

B. Grant of Preliminary Injunction

A plaintiff who seeks a preliminary injunction must show:

[1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm
in the absence of preliminary relief, [3] that
the balance of equities tips in his favor, and
[4] that an injunction is in the public interest.

Winter, 555 U.S. at 20.

The district court applied the correct legal standard and as
our discussion below makes clear, it did so in a manner that
was logical, plausible, and supported by the record. See
Hinkson, 585 F.3d at 1251. As such, we conclude that the
district court did not abuse its discretion in granting the
preliminary injunction.

1. Likelihood of Success on the Merits

Greenpeace USA challenges the district court’s
conclusion that Shell “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.” Shell Offshore, 864 F. Supp. 2d at 850. First,

Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v.
U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007) (quoting S. Or.
Barter Fair v. Jackson Cnty., 372 F.3d 1128, 1136 (9th Cir. 2004)). In
light of the important distinctions between review of a preliminary
injunction versus a merits-based review, we fail to see how Claiborne
Hardware and Bancec can be instructive.
18 SHELL OFFSHORE V . GREENPEACE

Greenpeace USA argues that the district court erred by
impermissibly shifting the burden of proof to it. The court
explained that it “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”
and that, to the contrary, its executive director stated publicly
in March 2012 that “‘[w]hatever happens in court,
Greenpeace will continue to oppose Shell’s plans peacefully
and vigorously.’” Id. at 849. The district court’s “weighing”
of Greenpeace USA’s silence amounts to an observation that
contrary evidence offered by Shell stood unrefuted. There is
consequently no error here.

Second, Greenpeace USA argues that Shell failed to meet
its burden. The record before the district court contained
evidence that: (1) Greenpeace USA forcibly boarded and
defaced a Shell vessel, the Harvey Explorer, as part of its
campaign to “stop Shell” from drilling in the Arctic; (2) on
two occasions, activists that Greenpeace USA termed “our
activists” employed unlawful and tortious means to stop
another energy company (Cairn) from finding oil in the
Arctic; (3) Greenpeace USA conceded that it uses “direct
action” – including unlawful conduct – as means to an end;
(4) Greenpeace USA and the global Greenpeace organization
share the goal of stopping Shell from drilling in the Arctic;
and (5) Greenpeace activists from other nations have on
multiple occasions employed unlawful or tortious means to
stop Shell from drilling in the Arctic. On these facts, we
cannot say that the district court abused its discretion in
concluding that Shell met its burden. See Hinkson, 585 F.3d
at 1251.
 SHELL OFFSHORE V . GREENPEACE 19

2. Likelihood of Irreparable Harm

The district court concluded that Shell demonstrated a
likelihood of irreparable harm absent injunctive relief because
“illegal or tortious efforts to board or interfere with [its]
vessels would be likely to present unacceptable risks to
human life, property and the environment.” Shell Offshore,
864 F. Supp. 2d at 851 (internal quotation marks omitted). In
support of these findings, the court considered evidence that
actions of the sort undertaken by Greenpeace activists against
Shell vessels in New Zealand, Finland, and Greenland pose
risks to the safety of activists and vessel occupants alike. The
court also found – and Greenpeace USA does not
dispute – that “if Greenpeace USA successfully disrupted
Shell’s operation, calculating the amount of economic harm
would be very difficult.” Id.

Greenpeace USA offers nothing beyond conclusory
statements and case summaries in support of its one-sentence
argument that the “likelihood of future injury is speculative
and cannot be based on matters that occurred in 1997,8 or that
involved entities that are not Greenpeace USA.” The record
provides ample support for the conclusion that Greenpeace
USA has either undertaken directly, or embraced as its own,
tactics that include forcible boarding of vessels at sea and the
use of human beings as impediments to drilling operations.
We find it too plain for debate that such tactics at minimum
pose a serious risk of harm to human life, particularly if
attempted in the extreme conditions of the Arctic Ocean, and
that such harm could find no adequate remedy at law.

8
W e have searched the briefs in vain for clues as to which 1997 matters
Greenpeace USA refers.
20 SHELL OFFSHORE V . GREENPEACE

Accordingly, we find no abuse of discretion in the district
court’s conclusion. See Hinkson, 585 F.3d at 1251.

3. Balance of Equities

The district court concluded that “[b]y 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, . . . the balance of the
equities remains solidly tipped in Shell’s favor.” Shell
Offshore, 864 F. Supp. 2d at 853. Greenpeace USA argues
that the court erred by failing to apply a standard that would
require the balance of hardships to tip “sharply” in Shell’s
favor.

Under Winter, a preliminary injunction movant must
show, inter alia, that “the balance of equities tips in his
favor.” 555 U.S. at 20. But if a plaintiff can only show that
there are “serious questions going to the merits” – a lesser
showing than likelihood of success on the merits – then a
preliminary injunction may still issue if the “balance of
hardships tips sharply in the plaintiff’s favor,” and the other
two Winter factors are satisfied. Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)
(emphasis added). But the serious questions approach is
inapplicable in this case because, as explained above, Shell
demonstrated, and the district court found, a likelihood of
success on the merits.

We conclude that the district court did not err in finding
that the balance of equities favors Shell. Shell has an interest
in conducting legally authorized exploration of its Arctic
leases without dangerous interference from Greenpeace USA.
 SHELL OFFSHORE V . GREENPEACE 21

Greenpeace USA has a countervailing First Amendment right
to protest Shell’s drilling activities, and the injunction
imposes safety zones around Shell vessels that prevent
Greenpeace USA from exercising its rights in close proximity
to those vessels. Greenpeace USA argues that this is an
undue speech restriction, prohibited under Schenck v. Pro-
Choice Network of W.N.Y., 519 U.S. 357 (1997). We
disagree.

The safety zones do not prevent Greenpeace USA from
communicating with its target audience because, as the
district court observed, Greenpeace USA has no audience at
sea. And although the injunction imposes a safety “bubble”
around Shell’s vessels, Greenpeace USA’s reliance on
Schenck and its discussion of bubble zones around abortion
clinics is sorely misplaced. Speech is, of course, most
protected in such quintessential public fora as the public
sidewalks surrounding abortion clinics. See id. at 377. But
the high seas are not a public forum, and the lessons of
Schenck have little applicability there.

We conclude that, in light of the serious risk to human life
and property posed by the conduct that the preliminary
injunction enjoins, and given the narrow tailoring of the
order, the district court did not abuse its discretion in finding
that the scales of equity tip in Shell’s favor.

4. Public Interest

Finally, we must decide whether the district court abused
its discretion in concluding that an injunction is in the public
interest. Congress has recognized a public interest in the
“expeditious and orderly development” of the OCS, see
Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 546
22 SHELL OFFSHORE V . GREENPEACE

n.11 (1987) (quoting 43 U.S.C. § 1332(3)), and Shell’s Arctic
OCS project is authorized by law.

Greenpeace USA argues that the district court failed to
consider the public interest in environmental protection
before issuing the injunction. After reminding the court of
the Deepwater Horizon disaster, Greenpeace USA argues that
there is an amplified public interest in “allow[ing] the public,
including Greenpeace USA, to monitor [oil drilling]
activities.” Finally, Greenpeace USA argues that OCSLA
recognizes an interest in “public participation and
environmental protection” that is furthered by groups like
itself.

The district court considered the public interest in having
Greenpeace USA monitor Shell’s Arctic drilling activities.
In fact, the court agreed with Greenpeace USA’s OCSLA
argument, stating that “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.” Shell Offshore, 864 F. Supp. 2d
at 852. The court also acknowledged that the injunction
could impact “Greenpeace USA’s otherwise legal activities.”
Id. It responded by crafting a narrow injunctive order that
prohibited only illegal and tortious conduct and by expressly
inviting Greenpeace USA to

seek to modify [the] order so as to permit
Greenpeace to more closely monitor Shell’s
activities within the safety zones established
by [the] order at such specific times,
locations, and conditions that [the] court may
order after each party has been accorded an
opportunity to be heard on any such motion.
 SHELL OFFSHORE V . GREENPEACE 23

Id. at 856. We cannot say that this treatment of public
interest factors constituted an abuse of discretion.

CONCLUSION

The district court did not abuse its discretion in granting
Shell’s motion for a preliminary injunction, which is amply
supported by the record. Consequently, the preliminary
injunction order is AFFIRMED.

M. SMITH, Circuit Judge, concurring in part and dissenting
in part:

I concur with Parts III and IV of the majority opinion that
discuss justiciability and jurisdiction. I part ways with the
majority, however, where it holds that Shell may impute the
actions of other independent Greenpeace entities to
Greenpeace USA in order to meet Shell’s burden of proof.1
Because I cannot support the imposition of legal sanctions on
Greenpeace USA based, in significant part, on the conduct of
others that Greenpeace USA does not control, I respectfully
dissent.

I.

The majority claims that Greenpeace USA was properly
enjoined because the “evidence showed that stopping Shell

1
As discussed more fully below, G reenpeace USA is one of sixteen
independent voting members of Stichting Greenpeace Council (a.k.a.,
Greenpeace International), and is the only Greenpeace entity that is a party
to this case.
24 SHELL OFFSHORE V . GREENPEACE

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.”
(Maj. Op. at 16) (quoting Shell Offshore Inc. v. Greenpeace,
Inc., 864 F. Supp. 2d 839, 848 (D. Alaska 2012)). Of course,
Greenpeace USA does not dispute that it seeks to stop Shell
from drilling in the Arctic. Rather, Greenpeace USA disputes
that Shell has presented sufficient evidence to show that
Greenpeace USA will likely use illegal methods to achieve its
goal. Because Greenpeace USA is unquestionably entitled to
lawfully protest Shell’s drilling activities, the real issue in this
case is whether Shell has sufficiently proved that Greenpeace
USA is likely to take “imminent” unlawful action unless it is
enjoined. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992).

Relying heavily on evidence of previous unlawful
encounters between “Greenpeace activists” and Shell, such as
the boarding of the Noble Discoverer in New Zealand and the
boarding of the Nordica and Fennica in Finland, the majority
concludes that Shell has met its burden. The majority’s
reliance on these acts is troubling, however, because even the
majority admits that Greenpeace USA played no part in these
events.2 In order to sufficiently link these activities to
Greenpeace USA, the majority advances two theories, both of
which are ill-conceived. First, the majority claims that “Shell
does not need to show past injury by Greenpeace USA” to be
entitled to legal relief. (Maj. Op. at 15) (emphasis added).
Alternatively, the majority claims that because Greenpeace
USA reported on the unlawful actions of other Greenpeace

2
The record is clear that the Noble Discoverer was boarded by members
of Greenpeace New Zealand, while the Nordica and Fennica were
boarded by members of Greenpeace Nordic.
 SHELL OFFSHORE V . GREENPEACE 25

entities on its website, and made reference to the members of
such Greenpeace groups as “our activists,” Greenpeace USA
“endorsed” those actions, thereby permitting us to hold
Greenpeace USA responsible for the underlying conduct in
this litigation. (Maj. Op. at 5). For the reasons discussed
below, I disagree with both propositions.

A. The Separate Legal Status of Greenpeace USA Is
Relevant to This Appeal

It is axiomatic that a plaintiff must sue the proper party in
order to obtain relief. See, e.g., Krupski v. Costa Crociere
S.p.A., 130 S. Ct. 2485, 2494 (2010) (“[M]aking a deliberate
choice to sue one party instead of another while fully
understanding the factual and legal differences between the
two parties is the antithesis of making a mistake concerning
the proper party’s identity.”).3 It is similarly well recognized
that a person (or corporation) can be held legally responsible
only for his own actions, absent extraordinary circumstances.
See, e.g., N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.
886, 920 (1982) (“Civil liability may not be imposed merely
because an individual belonged to a group, some members of
which committed acts of violence.”); First Nat. City Bank v.
Banco Para El Comercio Exterior de Cuba (Bancec),
462 U.S. 611, 625 (1983) (“Separate legal personality has
been described as an almost indispensable aspect of the
public corporation.”). Certainly Shell understands these

3
Leonard v. Parry, 219 F.3d 25, 29 (1st Cir. 2000) (“[E]ven the most
liberal interpretation of ‘mistake’ cannot include a deliberate decision not
to sue a party whose identity plaintiff knew from the outset.”) (quotation
omitted); Springman v. AIG Mktg., Inc., 523 F.3d 685, 690 (7th Cir. 2008)
(“the maintenance for years of a suit against a party known by the plaintiff
to be the wrong one to sue was an abuse of legal process”).
26 SHELL OFFSHORE V . GREENPEACE

principles well—its own corporate disclosure statement takes
up nearly a full page of its answering brief,4 listing all of the
subsidiaries and entities Shell admittedly relies on to limit its
own liability.5 Yet when it comes to Greenpeace USA, what
is sauce for the goose is apparently not sauce for the gander.

The majority claims that Greenpeace USA can be held to
account for the actions of legally separate Greenpeace
entities. But well-established law, as well as basic fairness,
dictates otherwise. As the Supreme Court noted in a similar
case:

The taint of violence colored the conduct of
some petitioners. They, of course, may be

4
Appellee Shell Offshore Inc. is a wholly owned subsidiary of SOI
Finance Inc., which is a wholly owned subsidiary of Shell US E&P
Investments LLC, which is a wholly owned subsidiary of Shell Oil
Company, which, in turn, is a wholly owned subsidiary of Shell Petroleum
Inc., which is a wholly owned subsidiary of Shell Petroleum N.V., which
is a wholly owned subsidiary of Royal Dutch Shell plc. (Appellee’s
Corporate Disclosure Statement). Shell Offshore Inc. is itself the parent
corporation of Enterprise Oil North America Inc., which in turn is the
parent company of Shell Gulf of M exico Inc., the other Shell appellee in
this case. Id.

5
Consider the following exchange with Shell’s counsel at oral argument:

The Court: I am very well aware that Shell has thousands of corporate
and other entities and I have never heard a Shell representative basically
say these are all worthless; we should treat them all as just one entity.

Mr. Leppo: And I’m not saying that your honor . . . I will never make
that argument.
 SHELL OFFSHORE V . GREENPEACE 27

held liable for the consequences of their
violent deeds. The burden of demonstrating
that it colored the entire collective effort,
however, is not satisfied by evidence that
violence occurred . . . Such a characterization
must be supported by findings that adequately
disclose the evidentiary basis for concluding
that specific parties agreed to use unlawful
means[.]

Claiborne Hardware Co., 458 U.S. at 933 (emphasis added).

Applying these principles to the case before us,
Greenpeace USA should only be legally sanctioned for the
actions of other independent entities on a sufficient showing
that Greenpeace USA significantly coordinated with,
encouraged, or controlled the actions of those groups. See,
e.g., id. at 932–34 (the fact that certain activists engaged in
unlawful conduct cannot be attributed to other protest
organizers unless it could be shown that the latter had
personally committed or authorized the unlawful acts);
Bancec, 462 U.S. at 626–29 (explaining that “limited liability
is the rule, not the exception,” and thus one corporate entity
may only be held liable for the actions of another “where a
corporate entity is so extensively controlled by its owner that
a relationship of principal and agent is created.”).

The record here, however, does not demonstrate such
pervasive control. Instead, the record indicates that
Greenpeace USA functions as an operationally independent
member of Stichting Greenpeace Council (a.k.a., Greenpeace
International), the Amsterdam-based “parent” entity that
licenses the Greenpeace name to groups like Greenpeace
USA. Together with the other fifteen voting members of
28 SHELL OFFSHORE V . GREENPEACE

Greenpeace International, Greenpeace USA helps set
Greenpeace’s worldwide campaign priorities, such as
preventing oil drilling in the Arctic, or logging in the
Amazon. But when it comes to the methods and tactics used
to advance those priorities, the record makes clear that each
Greenpeace licensee is autonomous, and free to choose the
tactics most likely to resonate with its local constituency.
Thus, while Greenpeace New Zealand and Greenpeace
Nordic may seek to advance the global “stop Shell” campaign
through the unlawful boarding of Shell vessels, Greenpeace
USA may choose more benign tactics, like the letter-writing
campaign Greenpeace USA admits it coordinated through its
website.

Understood in its correct factual context, it is legally
improper to impute the independent tactical choices of other
Greenpeace licensees to Greenpeace USA in this litigation.
Yet under the majority’s newly announced rule, Greenpeace
USA’s separate legal status has no bearing on our decision.
Of course, as previously noted, courts have consistently held
just the opposite, and found that a party’s individual
culpability is a key factor in fashioning an appropriate legal
remedy. See, e.g., Claiborne Hardware Co., 458 U.S. at
932–34.6 The majority does not adequately explain why this
case should be decided any differently, and absent such
justification, I cannot endorse its permissive and pernicious

6
Scales v. United States, 367 U.S. 203, 228–30 (1961); Schware v. Bd.
of Bar Exam. of State of N.M., 353 U.S. 232, 244 (1957); Anderson v.
Abbott, 321 U .S. 349, 357–62 (1944); Louisiana-Pacific Corp. v.
ASARCO, Inc., 5 F.3d 431, 433–34 (9th Cir. 1993).
 SHELL OFFSHORE V . GREENPEACE 29

new rule.7 Without sufficient proof of what Greenpeace USA
itself has done to threaten Shell’s Arctic drilling operations,
I would not grant a preliminary injunction.

B. Mere Endorsement of Criminal Conduct Cannot
Support an Injunction

In addition to improperly relying on the direct evidence
of illegal acts committed by non-party Greenpeace entities,
the majority also relies on Greenpeace USA’s “endorsement”
of such acts to support its conclusion that Greenpeace USA
was properly enjoined here. Put simply, the majority implies
that Greenpeace USA can be enjoined, at least in part,
because Greenpeace USA wrote favorably about the unlawful
activities of groups like Greenpeace New Zealand, and
described those groups’ activists as “our activists.” Again, I
disagree.

My first ground for disagreement is factual. Although
Shell tries its best to paint Greenpeace USA’s statements as
imminent threats, they are clearly no such thing. That
Greenpeace USA officially referred to those members of
Greenpeace New Zealand who unlawfully boarded the Noble
Discoverer as “our brave activists,” and described the
incident as “only the first chapter in what will undoubtedly be
an epic battle,” is unremarkable. These statements say
nothing about Greenpeace USA’s own planned involvement

7
Contrary to the majority’s assertion in its own footnote seven, there is
no justification for distinguishing between types of requested relief when
considering whether a plaintiff has adequately sued the proper party. To
obtain any legal relief, a plaintiff must sue the correct entity. Any other
rule is simply nonsensical and contrary to long-established precedent.
See, e.g., Bancec, 462 U.S. at 626–29.
30 SHELL OFFSHORE V . GREENPEACE

in any “epic battle,” let alone shed light on Greenpeace
USA’s contemplated “battle” tactics. Rather, Greenpeace
USA’s statements are fully consistent with its claim that it
plans to protest Shell’s Arctic drilling using only legal
methods.8

More importantly, however, the majority’s “endorsement”
test is legally ill-advised, because it is likely to have an
unintended chilling effect on otherwise protected speech. No
party to these proceedings claims that Greenpeace USA’s
blog posts fall outside the protections of the First
Amendment. See Brandenburg v. Ohio, 395 U.S. 444,
447–48 (1969) (“advocacy of the use of force or of law
violation except where such advocacy is directed to inciting
or producing imminent lawless action” is protected under the
Constitution); Planned Parenthood of Columbia/Willamette,
Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1072 (9th
Cir. 2002) (en banc) (“If ACLA had merely endorsed or
encouraged the violent actions of others, its speech would be
protected.”) (emphasis added). Praising civil disobedience
and promising further protest in no way rises to the level of
incitement or a true threat. See id. at 1089 (Kozinski, J.
dissenting) (“The difference between a true threat and
protected expression is this: A true threat warns of violence
or other harm that the speaker controls.”) (emphasis added).
Yet by premising the grant of a preliminary injunction, at
least in part, on Greenpeace USA’s clearly protected political
speech, the majority indirectly penalizes Greenpeace USA for

8
Contrary to what the district court found, Greenpeace USA denied that
it intended to illegally interfere with Shell’s activities. Greenpeace USA’s
sworn denial in its verified answer was all that was necessary, since Shell
has the burden of proof in this case. See Thalheimer v. City of San Diego,
645 F.3d 1109, 1116 (9th Cir. 2011).
 SHELL OFFSHORE V . GREENPEACE 31

behavior that cannot be punished directly. Chief Judge
Kozinski, now in the majority, stated the issue well in dissent:
“Like Claiborne Hardware, this case involves a concerted
effort by a variety of groups and individuals in pursuit of a
common political cause. Some of the activities were lawful,
others were not. In both cases, there was evidence that the
various players communicated with each other and, at times,
engaged in concerted action. The Supreme Court, however,
held that mere association with groups or individuals who
pursue unlawful conduct is an insufficient basis for the
imposition of liability, unless it is shown that the defendants
actually participated in or authorized the illegal conduct.” Id.
at 1095.

Because the record here does not show that Greenpeace
USA actually participated in or authorized much of the illegal
conduct relied on by the majority, I respectfully dissent.