United States District Court, D. Alaska
SHELL OFFSHORE, INC., a Delaware corporation, and SHELL GULF OF MEXICO INC., a Delaware corporation, Plaintiffs,
GREENPEACE, INC., a California corporation, and JOHN and JANE DOES 1-20, Defendants.
ORDER RE MOTION TO DISMISS
SHARON L. GLEASON, District Judge.
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The motion has been fully briefed. Oral argument was not requested and was not necessary to the Court's decision.
As a preliminary matter, the Court notes that Greenpeace USA has filed a notice of appeal of the Court's May 8, 2015 Order Granting Motion for Preliminary Injunction. As a general rule, "[o]nce a notice of appeal is filed, the district court is divested of jurisdiction over the matters being appealed." But "[t]he principle of exclusive appellate jurisdiction, is not, however, absolute. The district court retains jurisdiction during the pendency of an appeal to act to preserve the status quo." Accordingly, a district court may deny a motion for relief on an issue that is being appealed or it may state that it would grant the motion if the court of appeals remanded the case to the district court for that purpose.
I. Statutory Bases of Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) allows a party to seek dismissal of a complaint for lack of subject matter jurisdiction. On a Rule 12(b)(1) motion to dismiss, "proof of jurisdictional facts may be supplied by affidavit, declaration, or any other evidence properly before the court in addition to the pleadings challenged by the motion."
In the Order Granting Motion for Preliminary Injunction, the Court held that it "has subject matter jurisdiction to issue a preliminary injunction in this dispute between two U.S. corporations, including one that is applicable on the high seas." The Court indicated in that order that an explanation for the Court's subject matter determination would follow by separate order, which is set forth herein.
Pursuant to 28 U.S.C. § 1332, a district court has jurisdiction over cases in which the parties are citizens of different states and the amount in controversy exceeds $75, 000. Here the record indicates the requisite diversity of citizenship between the parties and amount in controversy and the Court therefore has subject matter jurisdiction based on diversity of citizenship.
The Court also has federal question jurisdiction over this controversy under 28 U.S.C. § 1331 because this case arises out of, or in connection with, Shell's planned oil exploration and drilling operation on the Outer Continental Shelf. The jurisdictional provision of the Outer Continental Shelf Lands Act ("OCSLA") provides in relevant part that "the district courts of the United States shall have jurisdiction of cases and controversies arising out of, or in connection with... any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental Shelf." It is undisputed that Shell intends to conduct an exploratory drilling operation on the Outer Continental Shelf during the 2015 drilling season. This case, alleging tortious interference with those plans by Greenpeace USA, arises out of or in connection with Shell's planned operation, and accordingly the OCSLA provides a separate basis for the Court's subject matter jurisdiction.
A third basis for jurisdiction in this case is admiralty. The alleged torts have occurred and are anticipated to occur on navigable waters and would have a potentially disruptive impact on maritime commerce, as at least some component of Shell's planned activities bear a substantial relationship to traditional maritime activity. But Greenpeace USA cites to Marine Cooks and Stewards, AFL v. Panama S.S. Co. for the proposition that a federal court sitting in admiralty in the Ninth Circuit does not have the authority to issue an injunction. However, Marine Cooks predates the unification of admiralty and other civil actions that took place in 1966, and although the case appears not to have been expressly overruled, the Ninth Circuit has since that time repeatedly recognized the equitable authority of the district courts in admiralty. Indeed, Rule F(3) of the Supplemental Rules for Admiralty or Maritime Claims, enacted in 1966, expressly authorizes the district court to enter certain injunctions. For the foregoing reasons, the Court finds that Marine Cooks does not preclude the Court from according injunctive relief in admiralty.
Moreover, as recognized by the Ninth Circuit, the Court's supplemental jurisdiction operates to fill any gap in the Court's subject matter jurisdiction where a common nucleus of operative facts underlies the action.
Greenpeace USA maintains that even if there is subject matter jurisdiction within the United States' Exclusive Economic Zone ("EEZ") and within the nation's land and territorial waters, the Court "lacks subject matter jurisdiction over extraterritorial events between foreign-flagged vessels on the high seas."
Greenpeace USA cites to Kiobel v. Royal Dutch Petroleum Co ., where the Supreme Court observed that it has generally treated the high seas the same as foreign soil in applying the presumption against extraterritorial application of Acts of Congress. Kiobel was an Alien Tort Statute case that "concerned the alleged complicity of foreign corporations with the Nigerian government for atrocities committed in Nigeria against Nigerian citizens, in violation of international norms." In Kiobel, the Supreme Court discussed the propriety of the extraterritorial application of Acts of Congress on the high seas. Specifically, the Court recognized piracy as an exception to the presumption against the extraterritorial application of U.S. laws, observing that piracy is conduct that "typically occurs on the high seas, beyond the territorial jurisdiction of the United States or any other country." The Supreme Court cited with approval to an 18th century definition of piracy as "acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there." The Supreme Court opined that U.S. law could be imposed extraterritorially on pirates because doing so "does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction."
Greenpeace USA maintains that "there is no merit to Shell's conclusory allegations that Greenpeace USA was involved in an act of piracy" so as to confer subject matter jurisdiction over it on the high seas. Instead, Greenpeace USA argues that the Court should apply the presumption against extraterritoriality and dismiss all of Shell's claims insofar as they apply to the high seas.
Shell's Complaint alleges that Greenpeace USA's and other Greenpeace entities' tactics include "blockading vessels in transit, blocking access to vessels attempting to dock at port, boarding vessels, placing swimmers in the water in front of vessels, hanging climbers on the sides of vessels, hanging survival pods on vessels, attempting to foul propulsion systems and chaining of individuals to anchors, vessels, or other facilities." The Complaint alleges multiple acts by various Greenpeace entities throughout the world in support of its allegations, and alleges that Greenpeace USA is likely to engage in these same activities against Shell in the coming months. Shell adds, "Greenpeace has a well-established institutional reputation and history for extremist and reckless conduct involving human and marine blockades, and reckless boardings." And, contrary to Greenpeace USA's assertion, Shell is not seeking for this Court "to exercise jurisdiction over foreign-flagged vessels on the high seas." Rather, Shell seeks for this Court to exercise jurisdiction over United States corporations.
Shell's Complaint does not use the term "piracy" to describe the conduct of Greenpeace USA activists. Rather, Shell has pled intentional tortious interference with maritime navigation, trespass and trespass to chattels, private nuisance, and civil conspiracy deriving from each of the other three claims.
Upon careful consideration, the Court finds that the presumption against extraterritoriality should not apply to Shell's claims against Greenpeace USA on the high seas. The Court finds that the alleged conduct in the Complaint, even if it is not piracy, is sufficiently akin to piracy so as to fall within that exception to the presumption against extraterritoriality, particularly when the extraterritorial scope of the Court's jurisdiction is extended only to the high seas. In making this determination, the Court has considered that the parties are all United States corporations and that the threatened conduct that forms the basis of the Complaint relates directly to the development of the OCS resources within United States territory. As such, on these alleged facts, the Court finds that the claims touch and concern the territory of the United States with sufficient force so as to displace the presumption against extraterritorial application.
"Whether a claim is ripe for adjudication goes to a court's subject matter jurisdiction under the case or controversy clause of Article III of the federal Constitution. Like other challenges to a court's subject matter jurisdiction, motions raising the ripeness issue are treated as brought under Rule 12(b)(1)."
"Ripeness is peculiarly a question of timing" and "its basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements." When evaluating the ripeness of a case addressing alleged future harm, a court considers "whether the conflicting contentions of the parties... present a real, substantial controversy between parties having adverse legal interests." "[O]ne does not have to await consummation of threatened injury to obtain preventative relief. If the injury is certainly impending, that is enough." "Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure ...