Although the Endangered Species Act may encourage extraordinary
efforts to save Puget Sound’s killer whales from extinction, it
cannot be used to bring home the last Puget Sound orca still in
captivity, a court has ruled.
A 51-year-old killer whale named Lolita, otherwise called
Tokitae, has been living in Miami Seaquarium since shortly after
her capture in 1970. Her clan — the Southern Resident killer whales
— were listed as endangered in 2005, but the federal listing
specifically excluded captive killer whales.
In 2013, People for the Ethical Treatment of Animals (PETA)
successfully petitioned the National Marine Fisheries Service to
have Lolita included among the endangered whales. But the
endangered listing has done nothing to help those who hoped
Lolita’s owners would be forced to allow a transition of the whale
back into Puget Sound.
This week, the U.S. Eleventh Circuit Court of Appeals in Atlanta
reiterated its earlier finding that Lolita has not been injured or
harassed to the point that her captivity at the Miami Seaquarium
violates the federal Endangered Species Act, or ESA.
The seventh season of “Whale Wars” — a three-hour presentation
premiering on Friday — follows on the heels of an unresolved
contempt-of-court ruling against Sea Shepherd Conservation Society
earlier this month.
Sea Shepherd captains (from
left) Sid Chakravarty, Peter Hammarstedt and Adam Meyerson during
2014 Operation Relentless
Sea Shepherd photo by Eliza Muirhead
The new program, to be shown at 5 p.m. and again at 8 p.m. on
Animal Planet network, documents the 2013-2014 Antarctic whaling
season and the sometimes-violent confrontation between Sea Shepherd
and Japanese whalers. Check out the
Sneak Preview.
While Sea Shepherd faces some serious court rulings, the
Japanese government finds itself in conflict with the International
Court of Justice, which concluded that its “scientific” whaling
program does not conform to scientific principles — which was the
legal justification for the program — so the whaling must stop, at
least for now. See
Water Ways, March 24, 2014.
Paul Watson, founder of Sea Shepherd, appears to have ticked off
the U.S. Ninth Circuit Court of Appeals, which first called his
group a “pirate” operation in December 2012. The court issued an
injunction to keep Sea Shepherd ships at least 500 feet away from
the Japanese whaling vessels. (See
Water Ways, Feb. 26, 2013.)
In its latest ruling on Dec. 19, the court says Watson and Sea
Shepherd’s U.S. board of directors acted contrary to its injunction
by shifting their anti-whaling operations over to the related group
Sea Shepherd, Australia. In the court’s view, Watson should have
done what was necessary to halt the anti-whaling tactics, not find
a way to continue them. As
Judge Milan D. Smith, Jr. wrote in his findings (PDF 127
kb):
“Sea Shepherd US’s separation strategy effectively nullified our
injunction by ensuring that OZT (Operation Zero Tolerance)
proceeded unimpeded, in part by using former Sea Shepherd US
assets. Sea Shepherd US ceded control over OZT to Sea Shepherd
Australia and other Sea Shepherd entities it believed to be beyond
the injunction’s reach, knowing these entities were virtually
certain to violate the injunction.
“At the same time, Sea Shepherd US continued to provide
financial and other support for OZT after the injunction by, among
other things, transferring for no consideration a vessel and
equipment worth millions of dollars to Sea Shepherd Australia and
other entities…
“Rather than instruct its employees to help prevent OZT, Sea
Shepherd US effectively shifted these employees to its affiliates’
payrolls to ensure continued participation in a campaign it knew
was very likely to result in violations of the injunction…
“Our objective in issuing the injunction was to stop Sea
Shepherd from attacking the plaintiffs’ vessels. Sea Shepherd US
thwarted that objective by furnishing other Sea Shepherd entities
with the means to do what it could not after the issuance of the
injunction. It has long been settled law that a person with notice
of an injunction may be held in contempt for aiding and abetting a
party in violating it.”
These court findings were all related to Operation Zero
Tolerance, the Sea Shepherd campaign that ended in March of 2013.
The ruling did not address Operation Relentless, which ended in
March of 2014 and is the subject of Friday’s “Whale Wars” event. I
wonder if Japan will attempt to use the U.S. courts to collect for
damages related to the latest conflict.
The International Court of Justice ruling against the Japanese
whaling operations seems to have had no effect on how the U.S.
Court of Appeals views Sea Shepherd’s actions. Sea Shepherd’s
activities were still illegal, the court ruled, and the injunction
would still be needed if the whaling were to resume under
conditions acceptable to the international court. See
“order denying defendants’ motion to dismiss” (PDF 308 kb).
In fact, although whaling was suspended for the 2014-15 season,
the Japanese government has submitted a new plan
(PDF 2.3 mb) to resume whaling at this time next year. The plan
calls for an annual harvest of 333 minke whales — as opposed to the
previous plan to take 850 minkes, 50 humpbacks and 50 fin whales.
For additional insight on the controversy, read Dennis Normile’s
piece in
Science Insider, affiliated with Science magazine.
As for the upcoming “Whale Wars” special, a
news release from Animal Planet says the action will be as
exciting as ever, even with Paul Watson gone from the scene:
“With Captain (Peter) Hammarstedt once again at the helm and
tensions with the whalers at an all-time high, this new campaign
will likely be the most aggressive and dangerous the Sea Shepherds
have faced.”
This episode of “Whale Wars” was produced by Lizard Trading
Company, using raw footage filmed by Sea Shepherd crew members.
That’s similar to the arrangement for last year’s two-hour special.
(See
Water Ways, Nov. 7, 2013.)
“You don’t need a peg leg or an eye patch,” begins Judge Alex
Kozinski, launching into a scathing ruling against Sea Shepherd
Conservation Society, which the judge calls a “pirate”
organization.
Kozinski, chief judge for the Ninth Circuit Court of Appeals,
concluded in a ruling today that U.S. District Judge Richard Jones
had made “numerous, serious and obvious errors” when he declined to
issue an injunction against Sea Shepherd for its high-seas battle
against Japanese whalers.
The three-judge panel ordered that the case be removed from
Jones’ jurisdiction and turned over to another Seattle district
judge drawn at random.
Meanwhile, the Institute of Cetacean Research — the Japanese
whaling organization — continues its effort to get a
contempt-of-court citation issued against Sea Shepherd, which has
increased its efforts to disrupt Japanese whaling in the Southern
Ocean.
Sea Shepherd remains under a U.S. Court of Appeals injunction,
which requires that the organization’s ships operate safely and
stay 500 yards away from the Japanese vessels.
I’ll provide an update on Sea Shepherd’s activities in a
separate blog post, but let me first tell you more about Kozinski’s
ruling (PDF 238 kb), which finds nothing commendable about any
of Sea Shepherd’s actions.
Who would have guessed that, throughout the history of our
state, a Kitsap County resident has never served as a State Supreme
Court justice?
Charlie Wiggins of
Bainbridge Island, Washington's next Supreme Court justice
Kitsap Sun photo by Larry Steagall
That’s been true until now, that is, since Bainbridge Island
attorney Charlie Wiggins is about to replace Justice Richard
Sanders on the state’s high court.
That’s just one tidbit in a fascinating story written about
Wiggins by reporter Tristan Baurick in
Monday’s Kitsap Sun. In his blog,
Bainbridge Conversation, Tristan also revealed how a Kitsap
resident years ago became a Supreme Court justice — but only after
moving to Tacoma, so he didn’t count.
It’s too early to know how Wiggins’ presence will change the
Supreme Court, but most observers expect him to take positions to
the left of Sanders, who is generally viewed as either a
Libertarian or a staunch conservative.
Tristan quoted Court of Appeals judges who have worked with
Wiggins. They said he is well respected in legal circles but
remains largely unknown to the public.
Retired judge Elaine Houghton: “He writes eloquent and clearly —
something we judges aspire to. His work is well-regarded because he
finds the essence of the law and espouses it very easily.”
University of Washington law professor Bill Anderson: “You can’t
peg him as an activist or nonactivist judge, or as a liberal or
conservative. I don’t think he’ll blaze any trails in any
direction. I think he’ll just be a professional judge. Consistent,
honorable, objective.”
One thing I found interesting was Wiggins’ predictions about
issues that could come before the court in the future. His lists
water because of its limited supplies.
“With climate change,” Wiggins told our reporter, “water is just
going to be an incredibly precious resource.”
In trying to judge how Wiggins might shift the court, I read
several of his articles written for legal publications. For a
lawyer, his writing can be engaging, especially when dealing with
historical issues. Check out “The Battle
for the Tidelands in the Constitutional Convention,” which he
wrote for the Washington State Bar Association.
