interest what shell has here is a contract an exclusive contract that comes with the skipper and a crew and it is undisputed on this record that shell does not navigate that came up repeatedly throughout the proceedings where they have a jumped up onto a landscaping truck that does not belong to my neighbor and i protested and would anyone say that i hadn't interfered with my business runs the use of their property particularly when the property is thousands of miles away this is an unprecedented kind of a private nuisance claim that no one ever said let's assume for a moment you're right about the nuisance count but isn't it a reality that virtually every oil company and every natural gas company in the world transport most of its product or crude was the case may be around the world in massive ships that are not owned by our piloted by the oil companies themselves is it greenpeace's position that none of those people have in effect standing have any interest in the vessels or their cargoes that is protective on your law your honor the law of torts has developed a special doctor to deal with that it's called tort agree with the intimation of novelis marine inc vs new mala that that is an exception to the normal rule in admiralty law and that if it's an intentional to that that is a proper toward to cover this kind of a situation tortious interference with yeah struck me but if they could prove it we don't think they know i guess that i i didn't expect you were going to advocate it for them but but but but the reality is that that particular tort weren't pled and were proven and i realize you don't agree that it can be but that one would fly would it not to cover the the matters that you are concerned about here it would make sense all of shell's interests here are contract interests and of course it's basic law that contract interests and property interests are not the same and in fact if you look at some of shell's own case if they contradict what they're saying the mcleod versus quest  case was a case they cited to suggest that they have a proper interest to support the trespass claim but mackey's the court actually held that there was no there was a property interesting questions telecommunications network and they said we're not just about navigation and they conceded that they don't navigate in fact that at page's supplemental excerpts of record one ninety nine to two hundred which is not cited in our briefs there was an interesting colloquy when i talked to shell witness michael battle and i said what would happen if maneuvers without contacting show they don't navigate it's undisputed on this record that shell does not navigate any more than if i were to hire a courier to go across town to santa monica and pick up a packet of what  anybody well yeah he said the skipper would take would decide for himself of course the skipper is in charge what does it prove that they wouldn't call shell they wouldn't call the present state so they wouldn't call the owners of the vessel it will what  pick one very straight a claim and standing not what point to what logical point what does it mean that they wouldn't call show they're not navigating therefore they don't they're not navigating therefore they don would you call american analysts would you call shell or would you call anybody else and that's always going to be no the answer is going to be i'm going to deal with emergency because i'm in charge of emergency so let me put it to you this way if i were to get in a taxi and go across town and somewhere to interfere with the driving of the cab you know let's see somebody jumps in front of somebody jumps in front of a find a taxi you think the guy's going to turn behind and say may i stop and go around the guy will jump in front of a taxi when it's the guy who can stop it and maneuver different people it's his employer obviously he works for his employer but what does this call business have to do what how this prove anything car business the car business  can with respect your honor i don't know what else to say other than the fact that that you know if you we're in a taxi in some and you're not driving it and you don't have a claim for interference and driving us but for a moment can we put those first two aside to go to private nuisance tell me what your concern is about the private nuisance issue is it the scope is it what our concern about the private nuisance is this extraordinary scope again shell has cited no cases to support this claim like its other claims and the scope of it is extraordinarily broad the idea that we're interfering with leases that are thousands of miles away so you're you're saying then if what we were talking about was interference with its lease shell's lease and it's a geographic area and so on if you interfere with that you agree that a private nuisance tort may lies a correct statement again not assuming proof but just as a matter of legal analysis that such a tort would lie is that correct i mean if someone were out there actually physically interfering with the seabed where they have their leases absolutely or are on the surface of the to get the seabed how about that creates a jurisdictional problem and iraq's law because the high seas above the outer continental shelf are not covered by oxley are you really disputing that the court has jurisdiction here you've got a california based bottom line is of the three that that the district court dealt with you agree that the private nuisance is probably the most likely to bear fruit for them but you dispute the fact that it was used to protect ships that are perhaps thousands of miles away from the lease properties that right well that's right and also again you know these are contractor ships and what if it's an oil platform i'm sorry what if it were an oral platform well that would certainly that would certainly jurisdictional problem and we're telling you since i'm sorry we're talking nuisance right well in terms of nuisance i suppose it would be possible if you were out there at platform doing something that was raised to the level of a certainly because the city of lyon los angeles for his lines cases one chokehold is not enough to show that you're going to go out and do it again and there's lots of cases like that this court's decision just months ago and months versus kerry how about let's go back to the past four months with a platform doing that that could theoretically be a viable claim but we're talking about thousands of miles away and we're talking about no evidence to greenpeace was going to be up there on the outer continental shelf whatsoever i'm down to very little time unless the court wants me to step in answer for the questions i'd like to save against the same u s companies regarding exploration drilling on the same federally issued o c s and check g c counsel can i just ask you this in the record i think it was st the those letters effectively put them on notice should bring them within the confines of the injunction talking about those acting in concert with unsought is that your position it is our position that rule sixty five d provides that an injunction is effective against the parties against the officers and directors and employees of the party and against parties acting in concert which have actual notice and the contours of private nuisance and then he actually brought up the end tortious interference with business relationships let's just say hypothetically that that i'm concerned about the scope of the nuisance issue clearly if you're within the confines of the lease probably no difficulty but ships are a long ways away it's a stretch whereas tortious interference is not a stretch from your perspective what old latitude does the district court have to if you will switch torts if you went back to them and said court and said like you know we want to we want to switch the basis of our injunction is that something is permissible under the rules is it proper under the rules well i believe it's proper to the rules to mend a complaint at any time i personally am involved in many complaints after jerry made a decision and so there's a great deal of latitude in that regard and of course it's from a common nucular of operative facts and at the facts are properly pled so if the court were to say the scope of the injunction is a little too broad to hear we're going to send this back to the district court your view is that you would have the right presumably with remission of the district court to amend and plead a tortious interference claim that's that's correct your honor and in this instance we played only three claims your honor asked the question and the scope of the complaint we replied only three claims and the reason that we did that was this is the same three claims that were played in two thousand and twelve and which that is what the one thing different about this record from two twelve is that greenpeace has raised not the defense but the issue raise the bar with a mission district court that you know your contract interest was sufficient to rise to the level of giving you a possessory interest in the ships here that the existence of the fact that these are under contract is really ever entirely a red herring as the evidence demonstrated in the case and as the district court held shell that the mission of these vessels tells them what to do where to go when to do it it informs them on how to replenish their supplies and it is a day in day to day control of these vessels and it was on that basis that the district court held that there was a sufficient possessory interest i think it's it's a constructive session what we're hearing from from from the pinion from page eight seven seven no editor which is clearly what greenpeace usa was and in this particular instance the same thing applies to the interference with navigation claim again here they have to shell us constructive possession of these vessels and it's interfering  with greenpeace's actions are interfering with shell it's it's a particularly odd point and maybe it is just a practical point the very reason that we're here is the greenpeace usa the engaging in threatening and threatening torts to stop shell the reason that they boarded the polar pioneer the reason that they engage in interference with navigation is in order to stop shell they refer to this as shells oil rig the polar pioneer that's a supplemental excerpts of record three ninety seven to three three ninety nine and so it would be an odd circumstance that they are engaged in a stop shell campaign doing these things to stop shell but somehow shell doesn't have a sufficient possessory interest in them certainly they must think they do and speaking to the nuisance claim your honor i think that really didn't know this case is a nuisance claim the point of the stop shell campaign and all the actions that flow from it are to keep shell from getting to and enjoying the substantial right that it has in its lease on the o c s and so i agree with you that there are not a lot of cases i mean most nuisance faces arrive on the land this is the situation there is land but it's underneath the ocean it's a it's an odd circumstance i would agree with that and yet the circumstances here are th usa is engaging in torture its behavior to stop shell from getting to its leases to keep its assets from getting there so that it can engage in exploration and that's it that's precisely the concept of nuisance really nuisance is the claim that best fits the kind of power i get i guess what i'm troubled by and you look at the actual restatement it talks about defines private news and as a non trespass free invasion others interest in the private use and enjoyment of land i realize or some case law that's just a little more elastic but i'm just concerned you really have to show that for purposes of the restatement that the interests that shell has in the ships moving along is sufficient to qualify there's no question in my mind anyway that once you get to the least property no question but i i'm just troubled by the concern by the idea that you have a private nuisance at least as defined by the restatement in these ships moving along that's why the tortious interference seems to very easily and it is clearly at least by our case law it seems to fit in admiralty law or as a private nuisance not so clear that's the reason why i bring that up is  would not expect this to rise in most in very few if any occasions and that there is an interest in in the subsurface and there are cases which we cited to the court about nooses can be trying to prevent somebody to get to their property so they can use and enjoy and that's what's occurring here these vessels are essential shells ability to use and enjoy the land that it possesses through i again i my concern is we're talking about an admiralty situation here can you address the novelist marine case and what role if any that might play were you to plead tortious interference what does that open that in two thousand and twelve we pled a cause of action for torturous interference and under the facts of those circumstances the district court concluded that and this related to one of the vessels which had  been trespass upon by greenpeace international or others she dismissed the claim and so the reason the principal reason we didn't bring it was we had three claims which we thought were completely valid and that was a claim which the court i'll buy it under different circumstances had concluded it wasn't properly stated but at that time we did provide the court and there is authority although i cannot dredge it up for you at this moment supporting newspaper that's correct your honor so the circumstance was that really peace usa has indicated publicly that they have a drone and that they intended to use it in the arctic and you know are sliding scale and i would be the first to acknowledge that this is a situation where the risk of europe terrible harm is enormous the greatest risk to human life in the arctic is in the transport of folks by by helicopter from the coast back and they're going back and forth all the time they're dropping out of the clouds and mr lead testified to this that some way and so the potential for a problem associated with a the area one that is unmarked that hasn't been coordinated with anyone else would lead to fatalities so we had information indicating that they have a drone we also know the greenpeace quite creative and that their their tactics evolve putting people human by plate hanging from bridges you know kayaks it's all there they're creative organization and they evolve as well and so there was a great deal of concern about the possibility of an unmanned drone that would not be seen and would drop in on that basis i think using the sliding scale and acknowledging it's not as strong as the vessel ron on the ed and ass man biofuels case that's an exact example of why shell has no trespass claim here he added and asked a man biofuels cases a case where a bank held a mortgage and from the kansas supreme court from one hundred seventy three were someone had signed a purchase and sale agreement on a piece of property that was that was damaged before the closing occurred and they can the supreme court said this is colorable title they don't have colorable titles they're not about to take over the out your honour's that the burden was on them they never put the contracts in evidence and as you pointed out judge to human there's lots of different kinds of admiralty contracts airboat contracts etc and they never put them into evidence on the issue of drones mike my very clear memory of the evidence was that that that greenpeace handed had a balloon on a string that said something like stop shell and they were holding it up in an urban area talking to drivers who went by that was that was the evidence of drones not anything that was happening out on the high seas or what you would normally think of as a drum are you able to represent that shell would not use a drone in connection with its operations against al green peace would not junior representing greenpeace you know i'm not in a position to represent what my client will or will not do in the future i would i would be very surprised if that happened but i'm afraid i couldn't i couldn't answer that question i will let you drone on well i don't think americans ever want their rights to be burdened just because you know the government thinks of something that they might do and you know that really goes to the heart of what with this case is all about the judge said that the that the injunction was narrowly tailored because we could always go back to the judge and ask for exceptions to it that really turns the bill of rights upside down your honour's you know the first amendment doesn't require americans to go to the government hat in hand and say could you make an exception to this rule where i want to exercise my constitutional and civil rights and this injunction really does burden rights the evidence was undisputed that that these one kilometer safety zones as mary sweeteners testified who greenpeace usa make their work quote close to impossible and they want to go out there and their testimony was undisputed and get up close to the ships and take photographs for core political purposes of transmitting these or me as to the american people so they will take action political action pretty good close to impossible they create these iconic images as they did with the save the whales campaign where they get right up close to the ships and that those iconic images of this fine who greenpeace's and motivated have motivated in the past the american you know i find that interesting i just read the national geographic magazine yesterday and there were some pictures of animals that were so close that were taken from well over a thousand yards away with modern equipment how can you say that they could not take pictures to make the representation  under the first amendment because they were six hundred b because it's not that the photograph the photography equipment or reach judge smith it's that there's nobody in the foreground holding the greenpeace banner saying this is wrong i see object ok that's that i know it's not a boarding party no it's the being next to them and mary sweeteners testimony on this was very clear and cited in our brief and and and you know there's always photoshop well but that's not protesting you know i don't know i i mean obviously you could photoshop but that would be kind of taking out the show that would be shocking if anyone would do such a thing yes it would thank you very much