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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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 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., 864 F.Supp.2d 839, 854-55 (D.Alaska 2012). These incidents were as follows:
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.
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:
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:
Dkt. 56-25 (Ex. 1020 at 0001).
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."
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.
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 vessels
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.
Our standard of review for preliminary injunction appeals is by now familiar:
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).
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,
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, 87 S.Ct. 1507, 18 L.Ed.2d 681 (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.
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.
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 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.
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, vessels transiting through the U.S. EEZ.
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
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 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.
A plaintiff who seeks a preliminary injunction must show:
Winter, 555 U.S. at 20, 129 S.Ct. 365.
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.
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 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.
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,
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, 129 S.Ct. 365. 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. 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, 117 S.Ct. 855, 137 L.Ed.2d 1 (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, 117 S.Ct. 855. 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.
Finally, we must decide whether the district court abused its discretion in
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
Id. at 856. We cannot say that this treatment of public interest factors constituted an abuse of discretion.
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
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.
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 1289-90) (quoting Shell Offshore Inc. v. Greenpeace, Inc., 864 F.Supp.2d 839,
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.
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., ___ U.S. ___, 130 S.Ct. 2485, 2494, 177 L.Ed.2d 48 (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.").
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:
Claiborne Hardware Co., 458 U.S. at 933, 102 S.Ct. 3409 (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, 102 S.Ct. 3409 (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, 103 S.Ct. 2591 (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 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
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, 102 S.Ct. 3409.
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 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.
More importantly, however, the majority's "endorsement" test is legally ill-advised, because it is likely to have an
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.
Shell Offshore, 864 F.Supp.2d at 855.
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, 706 F.3d 1085, 1090-91 (9th Cir.2013). These limitations explain why, as we have observed time and again, preliminary injunctions decisions are just that — "preliminary." Id. at 1089-90; 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.
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.
