Shell Offshore, Inc. v. Greenpeace, Inc.

FILED
FOR PUBLICATION MAR 12 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SHELL OFFSHORE, INC., a Delaware No. 12-35332
corporation; SHELL GULF OF MEXICO,
INC., a Delaware corporation, D.C. No. 3:12 cv-0042 SLG

Plaintiffs - Appellees,
OPINION
v.

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

Before: KOZINSKI, Chief Judge, TASHIMA and M. SMITH, Circuit Judges.

Opinion by Judge A. Wallace Tashima

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.

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 OSC leases. Indeed, the websites of virtually all Greenpeace organizations,

including Greenpeace USA, prominently feature a campaign to “stop Shell.”

2
 But “stop Shell” is not merely a campaign of words and images. Greenpeace

USA also uses so-called “direct actions” to achieve its goals, and its general

counsel has conceded that direct action can include illegal activity. There is

evidence that Greenpeace USA and its counterparts around the globe are united in

the goal of stopping Shell. When Greenpeace activists forcibly boarded an oil rig

off the coast of Greenland in 2010 and used their bodies to impede a drilling

operation, Greenpeace USA’s executive director described their conduct as “bold

non-violent direct action” by “our activists.” Greenpeace USA similarly endorsed

the forcible boarding of a Shell vessel by Greenpeace New Zealand activists in

February 2012, again referring to them as “our brave activists.”

The record before the district court contained evidence that Greenpeace

activists used illegal “direct action” to interfere with legal oil drilling activities on

many such occasions. Several incidents involved Shell vessels that were

subsequently named in the district court’s preliminary injunction order and used in

Shell’s 2012 Arctic OCS drilling operation. See Shell Offshore Inc. v. Greenpeace,

Inc., 864 F. Supp. 2d 839, 854-55 (D. Alaska 2012). These incidents were as

follows:

1. Direct Action Against Shell’s Harvey Explorer Vessel

3
 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
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

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.

4
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 “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

5
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 occupants.3 By its own terms, the injunction expired on October

2
Including within 1000 meters of the Noble Discoverer and the Kullak.
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
(continued...)

6
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:

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

3
(...continued)
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.

7
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).

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

8
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.

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

9
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 lease, Shell is legally authorized to drill only

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.

10
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

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.

11
 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

(“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,

12
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

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

6
See Shell Offshore, 2012 WL 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.

13
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, 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

14
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

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

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 3. 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 Diversity v. Salazar, — F.3d —, 2013 WL 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; 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.

15
 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, 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

16
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.

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

17
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,

8
We have searched the briefs in vain for clues as to which 1997 matters
Greenpeace USA refers.

18
particularly if attempted in the extreme conditions of the Arctic Ocean, and that

such harm could find no adequate remedy at law. 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, 632 F.3d at 1135

(emphasis added). But the serious questions approach is inapplicable in this case

19
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. 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.

20
 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 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

21
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.

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.

22
 Counsel of Record

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

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

23
 FILED
Shell Offshore, Inc. v. Greenpeace, Inc., No. 12-35332 MAR 12 2013

MOLLY C. DWYER, CLERK
M. SMITH, Circuit Judge, concurring in part and dissenting in part: U .S. C O U R T OF APPE ALS

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 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

1
As discussed more fully below, Greenpeace 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.
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 makes the startling claim that the “nature of the legal relationship

between Greenpeace USA, Greenpeace International, and various national

Greenpeace offices has no bearing on this appeal.” (Maj. Op. at 15).

Alternatively, the majority claims that because Greenpeace USA reported on the

unlawful actions of other Greenpeace entities on its website, and made reference to

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.

2
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. 6, 19). 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

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”).

3
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 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.

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 Mexico 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.

4
 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 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.”).

5
 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 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

6
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 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 claims that

Greenpeace USA can be enjoined, at least in part, because Greenpeace USA wrote

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).
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

7
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 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

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).

8
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 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

9
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.

10