F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

I N S T I T U T E O F C E T A C E A N R E S E A

R C H , a J apanese research foundation; K Y O D O S E

N P A K U K A I S H A , L T D ., a J apanese corporation; T O M O Y U K I O G A W A , an individual; T O S H I Y U K I M I U R A , an individual,

Plaintiffs-Appellants

,

v

.

S E A S H E P H E R

D C O N S E R

V A T I O N S O C I E T Y , an Oreg on nonprofit corporation; P A

U L W A T S O N , an individual, Defendants-Appellees

. N o. 12-35266

D.C. No. 2:11-cv-02043- RAJ

OPI NI ON

On a Motion for Contempt

Arg ued and Submitted October 27, 2014—Pasadena, California

F iled December 19, 2014

B efore: Alex Koz inski, A. W a llace Tashima, and Milan D.

Smith, J r., Circuit J udg es.

O pinion by

J udg e Milan D. Smith, J r.I

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SUMMARY *

Contem pt

T he panel held defendant Sea Shepherd Conservatio n Society

, its founder Paul W atson, and Sea Shepherd’s volunteer board members in contempt for v iolating the panel’s injuncti on prohibiting Sea Shepherd, W a tson, a nd “any party acting in concert with them” f rom phy sically attacking o r coming within 500 y ards of the whaling a nd fueling vessels of the I nstitute of Ce t acean Research a nd other plaintiffs on the open sea.

Declining to adopt the report and recommendation of the Appellate Commissioner, issued following a c o ntempt hearing

, the panel held that the defenda n t s v iolated the injunction when they adopted a “separation stra t eg y ” under which they c eded control of their “Operation Z ero Tolerance” campaig n , desig ned to thwart the plaintiffs’ whaling activities in the Southern Ocean, to foreig n Sea Shepherd entities.

The panel held Sea Shepherd US in contempt on the basis that its separation strateg y aided and abetted Sea Shepherd Australia and other Sea Shepherd entities to perform acts that would have violated the inju nction if done by parties bound by it. I n addition, Sea Shepherd US continued to pro v ide material support to the OZ T campaig n after the injunct i o n issu ed, confident that the entities it assisted would likely violate the injunction.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.I

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The panel held Se a S hepherd US’s v olunteer board members in contempt based on their r a t i f i c ation of the separation strate gy , and their a pproval of transfers o f ownership of valuable property , for no consideration, to Sea Shepherd entities participating in OZ T.

The pan e l held W atson in contempt as the Ex ecutive Director of Sea Shepherd U S, as well as for personally violating the injunction b y coming within 500 y ards of one o f the plaintiffs’ vessels.

The panel held that ag ainst Sea Shepherd US and W atson, the p laintiffs w ere e ntitled to recover attorney ’s fees and costs incurred in bringi n g and p rosecuting the contempt proceeding s a

nd to c o m p ensation for any actual damag e s

su ffered. The panel re-referred the matter to the Appellate Commissioner to determine the appropriate a mount o f attorney ’s fees and costs, as well as compensatory damag e s to award, and to determine the liabili t y o f the volunteer directors. T he panel stated that the plaintiffs’ requ e s t s f o r coercive sanctions and an order to compel compliance should be directed to the district court.

COUNSEL

J ohn F

. Neupert (arg

ued), M. Chris t i e Helmer, Sharae M. W h eeler, Miller Nash L L P, Portland, Oreg on; J ames L

. Phillips, Miller Nash L L P, Seattle

, Wa s h i n g t o n , for PlaintiffsAppellants.

Daniel P. Harris, Charles P. Moure, Rebecca Millican, Harris & Mo ure, PL L C, Seattle, Washing ton, for D efendantAppellee Sea Shepherd Conservation Society

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T i m o thy G. L ey

h (arg ued), Michelle B uhler, Charles S

. J ordan, Calfo Harrig a

n L ey h & Eakes, L L P, Seattle, W a shing ton, for Defendant-Appellant Paul W atson.

David F

. Tay lor (arg

ued)

, Kathleen M. O’Sullivan, Z achary P. J ones, Perkins Coie, Seattle, Washing ton, for non

- p a r t y respondents L ani B laz ier, Marnie Gaede, B ob Talbot, Robert W intner, and B en Z uckerman.

C lare L oebs Davis, Katie Smith Matison, L ane Powell P C
, Seattle, W ashing ton, f or non-party respondent Susan Hartland.

Kristina S. B ennard, J ulia D

. W oo g , Y armuth W ilsdon PL L C, Seattle, W ashing ton, for n on-party respondent Peter Rieman.

OP INION

M. SMI TH, Circuit J udg e :

I nstitute of Cetacean Research (Cetacean), Ky odo Senpaku Kaisha, L td., T o moy u ki Og awa, and Toshiy uki Miura (collectively

, Plaintiffs) filed this c ontempt proceeding
ag ainst Sea Shepherd Con s e rvation Society (Sea Shepherd US), its f

ounder Paul W atson, its administrative dir ector Su san Hartland, and six volunteer members o f the Sea Shepherd US board (collectively

, Defendants). The Plaintiffs alleg e that the Defendants v iolated our injunction p rohibiting S ea S h epherd US, W atson, a nd “ a ny party acting in c oncer t

w ith them” from phy sically attacking or coming within 500
y ards of t h e P l aintiffs’ whaling and fueling vessels on the
open sea.I

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After we handed down our injunction, the Def endants adopted w hat they called the “separation strateg y .” Pursuant
to the strateg y , they ceded control of the Operation Z ero Tolerance (OZ T) campaig n, desig ned to thwart the Plaintiffs’ whaling a ctivities in the Southern Ocean, to foreig n Sea Shepherd entities. The Defendants knew those entities would

use assets transferred to them by the Defendants in the OZ T campaig n, a

nd that there was a “ very hig h r i s k ” the entities would violate our injunction. I t is undisputed t h a t t h ese foreig n entities repeatedly committed a ct s ag ainst the Plaintiffs’ whaling ships during the O Z T camp a i gn that would have violated the injunction if performed by t he Defendants.

I n this opinion, we c o n s i d e r w hether the Defendants violated o ur injunction when they implemented the “separation strateg y .” The Plaintiffs contend that the strateg y

was aimed at evading our injunction a nd ensuring that the OZ T campaig n proceeded unabated, despit e t h e issuance o f
t h e injunction. I n support of their contention, the Plaintiffs point to undisputed evidence that the De f e n dants provided substantial assistance to the OZ T campaig n a f ter our injunction issued. Th e Defendants c ontend, on v arious
g rounds, that they sho u ld not be held liable for the acts o f entities they did not control and whose violations they could not prevent.

Our thoroug h review o f the record in this case, a nd the concessions of counsel a t o ra l ar gu ment, compel us to hold Sea Shepherd US, W a tson, and Sea Shepherd US’s volunteer board members in contempt for violating our injunction.I

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F ACTUAL AND P ROCEDURAL BACK G ROUND

Plaintiff Cetacean is a J apanese research foundation that has for many y ears receiv ed permits from the J apanese g overnment authoriz ing it to take w h a les for research
purposes. The I nternational Convention for the Reg ulation o f W h a l i n g, to which the United States, J apan, and 87 other nations are sig n atories, a uthoriz es whale hunting when conducted in compliance with a research permit is s u e d by a sig natory

. See I nt’l Conv. for the Reg ulation of W haling

, art. VI I I
, § 1, Dec. 2
, 1 9 46, 6 2 Stat. 1716, 161 U.N.T.S. 74. J apan issued such a pe r m i t to Cetacean that authoriz e d it to take w hales in the Southern Ocean during the pe riod December 20, 2012 to March 31, 2013.

Fo r s e v e r a l y e a

r s, Sea Shepherd US a n d i t s f o u n d e r, W a tson, have opposed Cetacean’s w h a l e h unting e fforts in the Southern Ocean. Sea Shepherd US i s org a niz ed as an Oreg on nonprofit corporation with tax -ex empt status under

s e c tion 501(c)(3) of the I n ternal Revenue Code. I t is
g overned by an unpaid board of volunteer directors. Several
current and former directors o f the org aniz a t i o n a re respondents in this contempt proceeding

.

I n a ddition to Se a S h e p h erd US, there ex ist a number o f foreig n Sea Shepherd entities, including those org aniz ed a nd
g overned under the laws of A ustralia, B elg ium, F r a n c e , Germany
, the Netherlands, a n d t he United King dom. W e sometimes refer t o Sea Shepherd US and the other Sea Shepherd entities collectively as “Sea Shepherd.”

Since 2004, Sea Shepherd h as mounted a y early c ampaig n to p re vent Cetacean f

r om k illing whales in the Southern Ocean. Sea Shepherd’s tactics have included throwing smokeI

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bombs and g lass containers of acid at the Plaintiffs’ vessels; d r a gg ing metal-reinforced ropes in the water to damag e t h e vessels ’ propellers and rudders; throwing safety flares with

me t a l h o o ks a t nets hung f rom the Plaintiffs’ vessels in the hop e t hat they will set fire to the vessels; and shining hig h

powered lasers a t the Plaintiffs’ vessels to annoy t h e cr ew. See Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y
, 860 F

. Supp. 2 d 1216, 1223–24 ( W .D. W a s h. 2012), rev’d

, 725 F .3d 940 (9th Cir. 2 0 1 3 ). S ea Shepherd has piloted its vessels in way s that make collisions w ith the Plainti ff s’ vessels hig hly likely ; in fact, collisions have occurred on several o ccasions. Id

. Hoping to p r ev e n t Sea Shepherd’s dang erous interference with its whaling a cti v i ties, the Plaintiffs b roug ht an ac t i o n for injunctive relief in the United States District Cour t f o r the W estern District o f W a shing ton. After the district court denied their request for

a preliminary injunction, 860 F

. Supp. 2 d 1216, rev’d

, 725 F .3d 940, the Plaintiffs appealed. W e reversed. Inst. of C etacean Research v. Sea Shepherd Conservation Soc’y
, 725 F .3d 940 (9th Cir. 2013).

W e issued an injunction pending a p p eal ag a inst Sea Shepherd US and Watson o n D e c e mber 1 7, 2012. The injunction provided in relevant part:

Defendants Sea Shepherd Conservation Society and Paul W a tson, and any party acting i n c o n c e r t w i t h t h e m ( c o l l e c t i v e l y “defend a nts”), are enjoined from phy sically attacking any vessel eng ag ed by Plaintiffs the I nstitute o f Cetacean Research, K y odo Senpaku Kais h a , L td., Tomoy uki Og awa o r Toshiy uki Miura in the Southern O cean o r any person on any such vessel (collectivelyI

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“plaintiffs”), or from navig atin g in a manner that is likely to e nda n ger the safe navig ation

o f any such vessel. I n no event shal l defendants a

pproach plaintiffs any closer than 500 y a rds when defendants a

re navig ating on the open sea.

This injunction remains in effect pending further o r d e r o f
court. Inst. of Cetacean Research , 725 F .3d at 947.

At the time o ur i n

j u n ction was handed down, Sea Shepher d US was org aniz ing and p reparing in earnest for OZ T, its ninth annual whale defense campaig n ag a inst the Plaintiffs. Prior to the issuanc e of our injunction, Sea Shepherd US, as in p r ev i o us y ears, had taken the lead administrative role in preparing for the campaig n. I t recruited both volunteer and paid crew, and o utfitted and f u e l e d four vessels for the campaig n: the Bob Barker

, Steve Irwin
, S am Simon
, and Brigitte B a rdot

. Sea Shephe rd US had already spent over 2 million dollars on the campaig n when our injunction issued.

W a t son received a copy of our injunction on December 18, 2012, the day after it issued. At that time, Watson was in the Southern O cean serving as c a mpaig n leade r , just as he had in previous y ears. Over the n e x t several day s, W atson and o ther members of S e a Shepherd devised a plan that would c ome to be known as the “separation strateg y

. ” Pursuant to the strateg y , Sea Shepherd US would t u r n over control of OZ T and transfer a s s e t s i t owned to foreig n Sea Shepherd entities, including Sea Shepherd Australi a

. Sea Shepherd Australia is an A ustralian public company limited by g u arantee and reg istered under the laws o f Australia. F o r each of the p revious whale defense c ampaig ns, Sea ShepherdI

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Australia has provided an operations base for the four vessels

a s well as log istical support. W atson was a member o f t h e boards of both Sea Shepherd US and Sea Shepherd Australia

w hen the injunction issued. As part of the separa t i o n strateg y , W atson would step down from the boards o f b o th entities, and a new OZ T c a m p aig n leader would a ssume W a tson’s responsibilities. W atson, however, would remain

on board the Steve Irwin as an “observer” d uri n g the campaig n.

The members o f Sea Shepherd US’s board learned of the injunction by email on December 1 8
, 2 0 12. When the injunction was handed down, the board was composed o f W a tson, w ho was a l s o the paid Ex ecutive Director of Sea Shepherd US, and v olun t e e r members L ani B laz ier, Marnie Gaede, B ob Talbot, Robert W i n tner, B en Z uckerman, a nd Peter Rieman, all o f wh om are respondents in this proceeding

.
Gaede, the board’s v ice p resident, called a telephonic board meeting for D ecember 20, 2012, during which Sea Shepherd US’s a ttorney s discussed the sign i ficance of the injunction and advised the b oard members on how to respond. All of the board members were present, along with another respondent in this proceeding

, Susan H artland, Sea Shepherd US’s Administrative Director. The board d i s c u s sed the separation strateg y and ag reed to implement it. Shortly a fter the board meeting

, members o f S e a Shepherd US and Sea Shepherd A us t r alia beg an working tog ether to facilitate the transfer of oper a t i o n al control of OZ T to Sea Shepherd Australia. On December 2 2
, 2012, J e ff Hansen, a board

m e mber o f Sea Shepherd A ustralia, emailed Watson a n d Hartland reg arding plans for Sea Shepherd Australia to “takeI

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over,” and f

or B o b Br o wn , a f

ormer A ustralian senator a nd decorated environmentalist, to lead the campaig n.

W a tson chaired a telephoni c board meeting of Sea Shepherd Australia on December 2 7, 2012, in which the board unanimously resolved to as s u me responsibility for running OZ T. Thereafter, Watson submitted his resig nation from the Sea Shepherd Australia board and B rown became a member. On December 31, 2012, the Sea Shepherd Australia board r e solved that B rown a n d H ansen would be the new leaders of OZ T.

Despite its plan to separate from O Z T, Sea Shepherd US’s financial support for the campaig n d id not e n d i mmediately after the injunctio n w a s issued. Sea Shepherd US p aid $163,405 in OZ T-related ex penses th a t were invoiced a fter the injunction was handed down. The majority of this money

was spent to refuel the Steve Irwin and pay t h e cr e dit card

ex p enses of OZ T ship captains.

On o r a bout December 27, 2012, several of the Plaintiffs’ whaling ships departed J a pan for the Souther n O cean. W a tson informed the Sea S h e p herd US board of this development b y email on December 27, 2012. W atson’s email stated: “All f

our Sea Shepherd ships and their crew will be r ea d y to g r eet the J apanese whalers when they a rrive. They intend to kill whales a n d Sea Shepherd’s objective is to

see that not a sing le whale is slain.

. . . I t a ppears that the hunt is on and we intend to hunt whalers.”

On December 28, 2012, W ats o n formally resig ned from his v a rious r oles in Sea Shepherd US and as campaig n leader for OZ T, effective De c e m b er 31, 2012. H e surrendered command of the S

teve Irwin to Siddharth Chak r a v arty , aI

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citiz en of I ndia, b u t r emained on board the ship. Other Sea Shepherd US employ ees participating in OZ T a l s o tendered
t h eir resig nations to the board. Althoug h Sea Shepherd U S stopped pay ing independent contractors serving as capt ains and crew members of O Z T, Watson h elped arrang e f o r the crew to be paid by foreig n Sea Shepherd entities.

There is evidence that W atson was not a mere p a s s i v e participant in OZ T after he resig n ed his leadership p ositions. During the OZ T campaig n, W a tson appear e d b y phone on a radio show in March of 2013. H is answers to questions p osed during the show indicate that h e b e lieved himself to be a participant i n OZ T, not just an observer. He said, for instance, “ we’re chasing the J apanese factor y s hip Nisshin Maru and keeping it f

r om killing whales.” W hen asked about th e a tmosphere aboard the ship, W atson said, “Oh,
every body ’s very upbeat on our ship because we’ve manag ed
t o m a k e sure they don’t kill many whales this y ear.” (emphases added).

W a tson was a l s o consulted for g uidance on how to proceed with c ertain aspects of t h e c a mpaig n. F or instance,

on December 28, 2012, Chakravarty emailed a New Z ealand
customs official seeking permissio n t o anchor the Brigitte Bardot off the New Z eala nd coast. He learned that the ship woul d r e q uire a hull inspection. Peter Hammarstedt, the captain of the Bob B a r k

e r , emailed Chakravarty that “ [ t] his wi l l h ave to be Paul’s decision. Sid, please check with him and let us know A SAP.” After being asked by email for his “decision,” Watson replied “[ y ] es p roceed with this option.” W a tson w a s consulted for advice about log istical aspects o f the campaig n on several other occasions after the injunction was issued.I

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I n a December 30, 2012 meeting

, the Sea Shep h e r d US board accepted W atson ’ s r esig nation a nd elected new board leadership consisting of Gaede as president, W intner as vice president, B laz ier a s secretary , and Rieman as treasurer. The board formally voted to sever all financial and other forms o f support to OZ T in a series of emails ex chang ed b etween J anuary 8 and 9, 2013. The board also voted to ratify a series of g rants of property for no consideration to Sea S h e p h erd entities participating in OZ T. Specifically

, Sea Shepherd US
g ranted o w n e rship o f the Bob Barker to Sea Shepherd Netherlands, and g a ve equip m e n t to both Sea Shepherd Australia and Sea Shepherd N etherlands. The vessel and the equipment Se a S h e pherd US g ranted had orig inal purchase prices totaling over two million dollars.

On J anuary 29, 2013, in violat i o n o f our injunction, the Brigitte Bardot approached within 20.25 y ards of the Y ushin Maru 3
, one o f the Plaintiffs’ ships, while it was n a vig ating

on the o pen sea. Several a d ditional violations of our injunction occurred o n F ebruary 15, 17, 1 8, 19, 20, 24, 25, 27, and 28. Most violations involved incursions of the 500-y ard safety perimeter established by

the injunction, but collisions occurred on F ebruary 20 a nd 2 5 in the course of efforts b y Sea Shepherd to prevent one of the Plaintif f s’ ships from refueling

. W atson was on board the Steve Irwin when these collisions occurred.

On F ebruary 11, 2013, the Plaintiffs f iled a motion to find Sea Shepherd US in contempt and a sked u s t o ap point a special master to conduct co n t e m p t proceeding s. T h e basis of the motion was the J anuary 29 incident in which the Brigitte Bardot a

pproached within 500 y ards of one of the P l a i n tiffs’ vessels. On F ebruary 21, 2013, we referred the contempt motion to the Appellate Commissioner. TheI

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Plaintiffs later amended their motion to alleg e additional acts of contempt, and to include W atson, the six volunteer directors, and Hartland as respondents to t h e contempt proceeding s. The Appellate Commissioner held a contempt hearing in Seattle from O ct o b e r 2 8, 2 013 to November 6, 2013. The parties stipulated that actions had o ccurred a t sea that, if p erformed by enjo i ned parties, would violate our injunction, and testimony a bout those events was limited. The hearing focused on how Sea Shepherd US, W at s o n , the volunteer directors, and Hartland responded to our injunction, and their relationship to the persons and entities leading OZ T after Sea Shepherd US’s withdrawal from the campaig n

.

The Appellate Commission e r issued his Report a nd Recommendation on J anuary 31, 2014. He recommended we find that none of the Defendan ts had committed an act o f contempt, as he believed they had “a d o p t e d a ‘separation’ strateg y a nd took reasonable steps to carry out that strateg y in order to g uarantee their own c ompliance with the injunction.” The Commissioner determined that the Defendants h a d not directly violated the injunction a nd cou l d n o t b e h eld in contempt for the actions of the non-parties leading OZ T.

The Plaintiffs and the D efendants e ach filed o bjections to the Commissioner’s Report and Recommendation.

JURISDICTION AND STANDARD OF REVIEW

I n our F ebrua r y 2 5, 2013 order, we retained jurisdiction

over “any fu r t h er appeals o r writs” in this case. I nst. of Cetacean Research

, 725 F .3d at 948. W e have “inherent power” to initiate c ontempt pr oceeding s. See Y oung v

. United States ex r el

. Vuitton et Fils S.A.
, 481 U .S. 787, 795 (1987) (citing Michaelson v. United States ex rel. Chicago,I

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St. P., M., & O.R. Co.
, 266 U.S. 42, 45 (1924)). W e also have statutory authority to punish both civil a n d criminal contempt pursuant to 18 U.S.C. § 401.

The parties disag ree reg arding the s tandard o f r eview applicable to the Appe l l a t e Commissioner’s finding s of fact in his Report a

nd Recommendation. Th e D ef endants a rg ue that the Commissioner a c ted as a special master, and thus that

we should rev i e w his finding s o f fact f or clear error. The Plaintiffs, however, maintain that we should r eview the Commissioner’s finding s of fact de novo.

W e need not resolve which standard of review applies to the Commissioner’s findi n g s of fact because our decision
rests on g rounds th e C ommissioner incorrectly rejected because of e rrors of law. Specific ally

, the Commissioner
wrong ly concluded that the Defen d a n t s could not be h eld liable f or aiding and abetting o thers to violate the injunction. The Commissioner also wrong ly concluded that the volunteer directors’ purported g ood f aith reliance o n advice o f counsel

was r elevant to whether they violated the injunction. Even if clear error review applied, it w o u l d s t ill be a ppropriate to correct factual finding s predicated on a misunderstanding of
t h e governing rules o f law. See Bose Corp. v. Consume r s Union of United States, Inc.
, 466 U.S. 485, 501 (1984) (citing Pullman-Standard v. Swint
, 456 U.S. 2 7 3
, 287 ( 1 982); Inwood Labs., Inc. v. Ives Labs., Inc.
, 456 U.S. 844, 8 5 5 n.15 (1982)).

D ISCUSSION

The Plaintiffs contend that the Defendants violated our injunction by aiding and abetting non

- p ar t ies, including Sea Shepherd Australia, to commit acts prohibited by theI

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injunction. The Pla i ntiffs arg ue that the purpose of the “separation strateg

y ” was not to ensure compliance with our i n j unction, but to ensure that OZ T proceeded unabated. I n addition, the Plaintiff

s c o n tend that W atson violated the injunction by personally coming w ithin 500 y ards o f o n e o f the Plaintiffs’ ships.

The Defendants arg ue that they implemented t h e

se p a r a t i o n strateg y in a g ood faith effort to comply with the injunction. They further contend that they lack ed c o ntrol

ov er t he other Sea Shepherd entities and cannot be h eld accountable for the actions of these entities.

The voluntee r board members point to their r eliance on the a dvice of coun s e l a s proof of their g ood faith in responding to the injunction, and ar gu e t hat even if they would otherwise be liable f or c ontempt, they are protected from liability by the Volunteer Prote ction Act, 4 2 U .S.C. § 1 4 5 03. Rieman arg ues that h e should not be held in contempt b e c a u se he r esig ned from the Sea Shepherd US board shortly a fter learning that a S e a S h e pherd vessel h ad

come within 50 0 y a r d s of one of the Plaintiffs’ ships. Hartland, Sea Shepherd U S’s Ad ministrative Director, arg ues that she should not be held in contempt because she was not

a member of the board and d i d n ot vote to ratify the separation strateg

y

.

W e address these arg

uments in turn.

I. Sea Shepherd US’s Contem pt Liability

“Civil contempt

. . . consists of a party ’s disobedience to

a specific and definite c ourt order by failure to take all reasonable steps within the part y ’ s power to comply .” In reI

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Dual-Deck Video Cassette Recorder A ntitrust Litig.
, 10 F .3d 693, 695 (9th Cir. 1993). A p arty may also be held liable for knowing ly aiding and a

betting another to violat e a court

o r d e r. See Regal Knitwear Co. v. NLRB
, 324 U.S. 9
, 1 4 (1945) (“defendants may not nu llify a decree by carry ing out prohibited acts throug h aiders and abettors, although they

were not parties to the orig inal proceeding ”). “Th e p a r t y alleg ing civil contempt mus t demonstrate that the alleg ed
contemnor violated the court’s order by ‘clear and convincing

e v i dence,’ not merely a preponderance of the evidenc e

. ” Dual-Deck

, 10 F .3d at 695 (citing Vertex Distri b., I nc. v

. Falcon Foam Plastics, I nc. , 689 F .2d 885, 889 (9th Cir. 1982)).

The Plaintiffs arg u e that Sea Shepherd US’s separation strateg y a ided and abetted Sea Shepherd Australia and other Sea Shepherd entities to perform a cts that w ould have violated the injunction if done by parties bo u nd by it. W e ag ree, and hold Sea Shepherd US in contempt on this basis.

Sea Shepherd US’s separation strateg y e f f ectively

nu llified our injunction by ensuring that OZ T proceeded unimpeded, in part by using former Sea Shepherd US assets. Sea Shepherd US ceded contro l o v er OZ T to Sea Shepherd Australia and other Sea S h epherd e ntities it believed to be bey ond the injunction’s r each, k n o wing these entities were virtually certain to violate the injunction. At the same time, Sea Shephe r d US continued to provide financial a nd other support for OZ T after the injunction by

, among other thing s, transferring for n o c onsideration a vessel and equipment worth millions of dollars to Sea Shepherd Australia and other entities.I

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A. Sea Shepherd US’s Withdraw al f rom OZ T

Sea Shepherd US chose to implement the separation

s trateg y because it b elieved that doing so would allow OZT
to proceed. There was c l e a r and convincing evidence that Sea She pherd US was hig hly motivated to see the OZ T campaig n completed. Short ly after the injunction issued, W a tson emailed the captains of various Sea Shepherd vessels and Hartland. He wrote: “The J apanese whalers are coming

. There is n o doubt about that. The q uestion is how do we stop them now? I f we back down to the 9th [ Circuit] C o u r t , the whales will d ie.” The same day

, W atson emailed his attorney a proposed press release stating

, in part:

The Sea Shepherd position is clear: Our ships, offic er s and crew are 100% committed to achieving a z ero kill quota on whales. This is Operation Z ero Tolerance and t he 120 crew from 26 nations are prepared to r isk their lives
to defend endang e red and protected whales in the Southern Ocean W hale Sanctuary

.

B o th Sea Shepherd US and Sea Sheph e r d Australia
recog niz ed that the injunction would hinder Sea Shepherd US’s ability to lead OZ T. S h o r tly after the injunction was issued, Hansen, a b oard member o f Sea Shepherd Australia, emailed W atson and H artland stating : “As the injunction that has been put in place by the US F ederal court impedes SSCS’s abili t y t o save the lives of whales, we need another body other than SSCS to step in and take over for whales.”

Sea Shepherd US ceded control of OZ T to Sea Shepherd A u s tralia on the belief that Sea Shepherd Australia was not bound by the injunction. Shortly after the injunction issued,I

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W a tson wrote a proposal to Sea Shepherd US’s board stating in part:

The deci s ion by the o ther org a niz ations to comply wi t h the injunction rests with the B o a r d of Directors of the Sea Shepherd
org aniz ations r eg istered u nder the laws o f their respective nations. The orders of the 9th U.S. [ C i r c uit] Court cannot possibly restrict them and this especially so w ith Sea Shepherd Australia wh er e the J apanese fleet is seen to be opera t i ng in direct defiance of the Australian F ederal Court a nd is prese n tly in contempt of this court ruling

.

Sea Shepherd Australia also be l i e v e d that it was not bound b y the injunction. I n the weeks following the issuance of the injunction, Sea Shepherd A ustralia board member J ohn M c Mullan, an attorney , and Melbourne barrister Debbie Mortimer, with whom he consulted, concluded that the injunction did not bind the org aniz a tion. B oth believed that Australian courts were unlikely to enforc e the injunction because of an Australian federal co u rt o rder enjoining the Plaintiffs from con d

u c t i n g whaling operations in the Southern O c e a n W hale Sanctuary

. I n the early day s a fter th e injunction w a s h a nded d o wn, B ob B rown, who would soon

assume leadership over OZ T, visited one of the OZ T ships to

reassure the crew that the inj u n c tion would not impede Sea Shepherd Australia’s ability to proceed with OZ T.

Sea Shepherd US’s b oard k n e w it was hig hly likely that Sea Shepherd Australia and o ther entities would commit acts that violated the injunction during OZ T. This was conceded by counsel at o ral arg u ment when he stated that Sea ShepherdI

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US board members “ knew [ the B ob Barker

, which the board
gr a nted to Sea Shepherd Netherlands for no consideration

, ] would be used in O ZT
, a n d there was a very hig h risk it would violate the injunction.”

W h en the injunction issu e d o n December 17, 2 012, Sea Shepherd U S was l e ading OZ T with W atson serving as the campaig n leader and c aptain o f t h e Steve Irwin

. Yet, Sea Shepherd US did not respond to the injunction by attempting
to prevent people a

nd e q uipment under its control from participating in the campaig n. Watson, as Ex ecutive D irector of Sea Shepherd U S, did n ot use h is authority to withdraw the Steve Irwin from OZ T a fter the injunction issued. I nstead, he remained in charg e of the campaig n and captain of the Steve Irwin until late December, when he turned the c ampaig n over to Sea Shepherd Australia. I n his testimony before the Appellate Commissioner, W atson conce d e d that he could have remained in c ontrol o f the OZ T vessels a fter the injunction and tried to make sure that t h e y c omplied. Sea Shepherd U S had a number of employ ees working on OZ T when the injunction issued, including Peter Hammarstedt, the Director of Marine Operations and captain of the Bob Barker. Sea Shepherd US did not order these e mploy ees to leave the ships. Nor did it ord e r t h e m to withdraw the ships from the OZ T c ampaig n. I t would h ave been perfectly reasonable for Sea Shepherd U S to do so in order to ensure that these vessels and employ ees d id not subsequen tly violate the injunction. Cf. In re Transamerica Corp.
, 184 F .2d 319 (9th Cir. 1 950) (bank held in contempt f or f ailing to countermand instructions to a c q u ire bank b ranches, even thoug h all
necessary steps had been taken prior to injunction); see also 2 J ames L

. Hig h & Shirley T. Hig h, A Treatise on the Law of Injunctions 1448 ( 4 t h ed

. 1 905) (“I t is the clear duty of o ne

w ho is e njoined from the commission o f a particular act n o tI

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only to refrain from d oing the act in person, but also to restrain his employ ees from d oing the thing forbidden, and a

mere passive and perso n a l obedience to the order will not suffice.”).

Sea Shephe r d US eventually stopped pay ing the salaries of crew members participating in OZ T, b u t many of them, including Hammarstedt, continued to participate in the OZ T campaig n. Sea Shepherd US g ave Hammarstedt and two other former employ ees p articipating in OZ T three months o f “severance” pay after they r esig ned. I mportantly

, a fter W a tson resig ned from his r oles with Sea Shepherd US, he requested that arrang ements be made for the crew aboard the ships to be paid by

other Sea Shepherd entities. Rather than instruct its employ e es to h elp prevent OZ T, Sea Shepherd US effectively shifted these employ ees to its a f f i l i ates’ pay

rolls to ensure continued participation in a campaig n it knew was
very likely to result in violations of the injunction.

I n sum, Sea Shepherd US wanted OZ T to continue; knew that the injunction would prevent it from leading the OZ T campaig n effectively ; believed that Sea Shepherd Australia

was bey ond the reach of the injunction; an d k new that Sea Shepherd Australia h eld the same b elief. I t also knew that there was a h ig h risk that other Sea Shepherd entities would violate the terms of t h e injunction if OZ T proceeded a s planned. Sea Shepherd US’s d ecision to withdraw from OZ T, relinquishing any ability to take reasonable steps to prevent other Sea Shepherd entities f r o m violating the injunction,
must be viewed w i t h t h e s e backg round facts in mind. Sea Shepherd U S did not so much withdraw from OZ T as turn the campaig n a n d m i l lions of dollars of assets over to entities it knew would do what the injunction forbade Sea Shepherd US and W a tson from doing directly

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B. Sea Shepherd US’s P ost-Injunction Assistance t o OZ T

Despite the a m p l e evidence that Sea Shepherd US withdrew from OZ T to ens ure that it proceeded unhindered,

our decision to hold Sea S h e p h er d U S in contempt does not rest solely

on its failure to take steps to prevent violations o f

our injunction. Our decision is primarily c o m pelled instead by the u ndisputed evidence noted infra that Sea Shepherd US continued to provide material support t o O Z T after the injunction issued, c o nfident that the e n tities it assisted would likely violate the injunction.

A party “may not n ullify a decree by carry ing out prohibited acts throug h aiders and abettors

, althoug h they

were not parties to the orig inal proceeding .” Regal Knitwear Co.
, 3 24 U.S. at 14. A s a result, a party to an injunction w ho assists others in performing forbidden co n duct may b e h eld in contempt, even if the court’s order did not ex plicitly forbid his specific a cts of assistance. See NLRB v. Deena Artware, Inc.
, 361 U.S. 398, 413 (1960) (F r ank f u r t e r , J
., concurring ) (observing that “ [ e] v ery affirma t i v e order in equity carries with it the implicit c o mmand to refrain from action desig n ed
to defeat it”); United States v. Shipp

, 214 U.S. 386, 422–23 (1909) (holding sheriff in contem p t f o r failing to prevent ly nching and observin g t h a t he “in effect aided and abetted it”); Roe v. Operation Rescue
, 9 19 F .2d 857, 8 7 1 ( 3 d Cir. 1990) (“Th e l a w does not permit the instig ator o f contemptuous conduct to absolve himself o f c ontempt liability by leaving the phy sical performance o f the forbidden conduct to others. A s a r esult, those who have knowledg e o f

a valid c ourt o rder a

n d abet others in v iolating it are s u b j e ct to the court’s contempt p o w e rs

. ”); NLRB v. Laborers’ I nt’l Union of N. Am., AFL-CIO
, 882 F .2d 949, 954 (5th Cir. 1 989)I

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(“One need not commit a n unlawful act in o r der to be liable for c onspiring to evade a judg ment of a court: it is contempt to act solely

for the purpose of evading a judg ment.”).

1. P ost-Injunction P a ym ents f or OZ T Expenses

Sea Shepherd U S incurred substantial ex penses related to OZ T after the injunction issued. $348,565 of those ex penses

were for orders placed before the inj u n ct i o n was issued, but paid afterwards. Sea Shepherd U S took no steps to rescind the orders, divert delivery to a third party , or charg e for their

use. Moreover, other OZ T

- related ex pe n s e s were both ordered a nd paid for after the injunction issued on December 17, 2012. F or instance, an o r d er of $106,830 in fuel for the Steve Irwin was invoiced on December 31, 2012, paid for b y Sea Shepherd US that day

, and delivered in J anuary of 2013. B etween J anuary 1 and 16, 2013, Sea Sheph erd US p aid $16,373 in credit card charg es of the captains of vessels involved in OZ T. I n all, Sea Shepherd US paid $163,405 in OZ T- r elated ex penses that were invoiced and paid for by Sea Shepher d U S after the issuance of the injunction. Sea Shepherd US an d the individual board members confirmed throug h their c ounsel a t oral arg um e n t t h e accuracy of the $163,405 fig ure.

2. Donations to OZ T

W a tson helped f

acilitate donations to OZ T after the injunction issued. On December 28, 2 012, W atson wrote an email to a Sea Shepherd US fundraiser, stating :

You can c ontinue to fund raise f o r Sea Shepherd USA but not to ask for f u n d s for Operation Z ero Toleranc e

. I f p eople wish toI

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restrict a d onation to O peration Z ero Tolerance they c a

n do so but it will have to be made out to Sea Shepherd Australia and there can be no tax receipt.

Rob Holden has a 501(c)(3) org aniz ati o n called B lue Rag e and if need be donations can be m ade to B lue Rag e and B lue Rag e can send it on toe [ sic] Sea Shepherd Australia.

Th u s , e v e n thoug h Sea Shepherd US was unable to collect
tax -deductible charitable donations for u se in O Z T, W atson proposed routing such donations t o O ZT throug h a separate 501(c)(3) nonprofit entity

.

3. Asset G rants to OZ T f or No Consideration

S e a S h e p h e rd US’s most troubling pos t

- i n j u n c t i o n s u p p o r t for OZ T came in a series of substantial g rants of prop e rt y i t made to various Sea Shepherd entities p articipating in the OZ T cam p a i g n

. I n J anuary of 2 013, the Sea Shepherd US board authoriz ed a series of g rants to Sea Shepherd Australia and Sea Shepherd Netherlands. Specificall y , S e a Shepherd US g ave equipment aboard the Brigitte Bardot to Sea Shepherd Australia for n o consideration. This e quipment h ad

an o rig inal purchase price of more than $1 7 5
, 0 0 0

. Sea Shepherd US also g a ve equipment a board the Steve Irwin to Sea Shepherd Netherlands, ag a in for no consideration. This equipment had an o r ig inal p urchase price of several hundreds of thousands of dollars. Most sig nificantly

, Sea Shepherd US also transferred ownership of its vessel, the B o b B arker

, to Sea Shepherd Netherlan d s f or n o consideration. As noted

e arlier, the Bob Barker a

nd the transferred equipment had a total orig inal purchase price of n e arly two million dollars.I

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The B rigitte Bardot

, S t e v e Irwin
, and Bob Barker all participated in OZ T. Each vessel was involved in at least o ne violation of the injunction; th e Bob Barker was involved in several.

The Sea Shepherd US b oard knew that these items would be used in OZ T w hen it voted to g r ant them to Sea Shepherd Australia and Sea Shepherd Netherlands. The email asking the board m e m b e rs to v ote o n the g rants stated “[ p] lease consider this g rant in conjunction wit h O p eration Zero Tolerance .” Sea Shepherd US board member Robert W intner testified that he u n d e rs tood this email to mean that the
g ranted items w ould be used for OZ T. And, if this evidence leaves any doubt, Sea Shepherd US and the individual board members conceded a t or a l a rg ument throug h their counsel that the board knew that th e e q u ipment would be used in OZ T, and that there was a “very h i g h risk” that the Bob Barker would violate the injunction.

I n lig ht of this undisputed e vidence, we hold that Sea Shepherd US v iolated the injunction by g iving others it knew

were h ig hly likely to violate th e i n j u nction the means to do

so. The fact that the inju n c t i o n ’s terms did not specifically forbid Sea She p h e r d U S’s acts of assistance does not immuniz e Sea Shepherd US from liabi l ity

. “I n deciding whether a n injunction has been violated it is p r oper to observe the objects for which the relie f w a s g ranted and to find a breach of t h e decree in a violation o f the spirit o f the injunction, e v en t houg h its strict letter may not have been disreg arded.” John B. Stetson Co. v. Stephen L. Stetson Co.
, 128 F .2d 981, 983 ( 2d C ir. 1942); see Prang Co. v. A m

. Crayon Co.
, 58 F .2d 715 (3d Cir. 1 932); Cal. Fruit Growers Exch. v. Sunkist Drinks, Inc.
, 25 F

. Supp. 401 (S.D.N.Y. 1938); see also Salazar v

. B u ono , 559 U.S. 700, 762 (2010)I

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(B rey e r, J
., dissenting ) (citing Stetson Co. , 128 F .2d at 983). Our objectiv e i n issuing the injunction was to stop Sea Shepherd f

rom attacking the Plaintiffs’ vessels. Sea Shepherd US thwarted that o b jective by furnishing other Sea Shepherd entities with the means to do what it could not a fter the issuance of the injunction.

I t has long been settled law that a person with notice o f an injunction may be held in contempt for aiding and abetting a p a r ty in violating it. See Peterson v. Highland Music, I n c

. , 140 F .3d 1313, 1323–24 (9th Cir. 1 9 98) (citin g N L RB v

. Sequoia Dist. Council of Carpenters
, 568 F .2d 628, 633 (9th Cir. 1 9 77)); Laborers’ Int’l Union o f N. Am., AFL-CIO
, 882 F .2d at 954; Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v

. Quinteros
, 176 F .3d 669, 674 (3d C i r

. 1 9 9 9). Much of the applicable cas e law addresses the issue of when it is fair to hold non-parties to a

n injunction liable for aiding and abetting

a party ’ s violation of the injunctio n

. See, e.g. , R e gal Knitwear Co.
, 324 U.S. a t 14; Levin v. Tiber Holding Corp.
, 277 F .3d 243, 250–51 (2d Cir. 2002); Goya Foods

, Inc. v W allack Mgmt. Co.
, 290 F .3d 63, 7 5 ( 1st Cir. 2 002); Highland Music , 140 F .3d at 1323–24; Illinois v. U.S. Dep’t of Health & Human S

ervs. , 772 F .2d 32 9
, 3 3 2 (7th Cir. 1985); W affenschmidt v. MacKay
, 763 F .2d 711, 717 (5th Cir. 1985); Alemite Mfg. Corp. v. Staff , 42 F .2d 832, 832–33 (2d Cir. 1930). I t is c lear to us that if a non-party to an injunction
may be held in contempt f or aiding and abetting violations o f

an injunction, a p a rt y to an injunction may be as well. W e therefore h old that a party may be h eld in contempt for g iving

a non-party the means to violate an injunction, if t h e party knows it is hig hly likely the non-party w ill us e t h o s e means to violate the injunction.I

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U n d er such circumstances, the party g iving assistan c e need not affirmativel y d esire to cause a violation of the injunction; it is enoug h that t h e p a r ty know a violation is hig hly likely to occur. I n so ruling

, we are g u ided b y

common law rules of f ault-based li ab i lity

. “ Tort law ordinarily imputes to an ac t o r t he intention to cause the natural and probable consequences o f his conduct.” DeVoto

v. Pacific Fidelity Life Ins. Co.
, 618 F .2d 1340, 1347 ( 9th Cir. 1980) (citing Restatement (S e c o n d ) o f Torts § 8A (1965)). “I ntent is not

. . . limited to c onsequences which are desired. I f the actor k

n o ws that the c o nsequences are certain, o r substantially certain, to result from his a c t, and still g oes ahead, he is t r e a t e d b y the law as if he h ad in fact desired to produce the result.” Restatement (Second) o f Torts § 8A(b) (1965). W e have a dopt e d a similar definition of intent outside the common law tor t c o n t ex t. F or instance, we employ e d it when we defined the e l e m e n t s o f contributory infring ement of copy

r ig ht in Perfect 10, Inc. v. Amazon.com, Inc.
, 508 F .3d 1146, 1170–71 (9th Cir. 2007), where we observed that “common law principles e s t a b l ish that intent
may be i m p u t ed.” See also Metro-Goldwyn-Mayer S tudios Inc. v. Grokster Ltd.

, 545 U.S. 913, 934–35 (2005) (endorsing the use of “rules of fault-bas e d l iability derived from the

common law” in assessing liability fo r c o n tributory in f ring ement). Under these circumstances, we find it appropriate to impute to Sea Shepherd US an intent to cause

a v iola t i o n of the injunction, reg ardless of whether Sea Shepherd US affirmatively desired that a violation occur.

W e also find it relevant that Sea Shepherd U S’s acts o f assist a n ce prox imately caused violations of the injunction. W e are once ag a in g u ided by principles d erived from

co m m o n law rules of fault-based liability

. The Supreme Court recently summariz ed the principles of prox imateI

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causation in Paroline v. United States
, 1 3 4 S. Ct. 1710, 1719 (2014). “As a g eneral matter, to s a y o n e event prox imately

c a u s e d another is a way of making two separate but rela t e d assertions. F irst, it means the former event caused the latter. This is known as actual cause o r cause in fact.” Id

. Second, i t means the former event was “not just any cause, b u t o n e with a sufficient connection to the result.” Id

.

W e beg in this portion of our analy sis by asking whether Sea Shepherd US’s a ssistance actually caused vio lations o f th e i njunction. “The c oncept of actual cause ‘is not a metaphy sical one but an ordinary

, matter-of-fact inquiry into the e x istence

. . . of a causal relation a s lay people would view it.’” Id

. (quoting 4 F

. Harper, F

. J ames, & O. Gray
, Tor ts § 20.2, p. 100 (3d e d

. 2007)). W e need not a ssess whether Sea Shepherd US’s acts caused each and every violation o f the injunction. A t a minimum its transfer of ow nership a nd control o f the Bob Barker to Sea Shepherd Net herlands caused the violations involving the Bob Barker

. The foreig n Sea Shepherd entities could not have used the v e ssel to violate the injunction if they did not control it.

W e nex t inquire whether Sea Shepherd US’s conduct h ad

a “sufficient connection to” violations of the injunction. See Paroline

, 1 3 4 S. Ct. at 1719. I n apply ing t h i s “flex ible concept,” id

. (internal quotation marks omitted), we a re mindful of its purpose: “A requirement of prox i m at e cause

. . . serves, inter alia

, to preclude liability in situations where the c ausal l i n k between conduct and result is so attenuated that the consequence is more a p t l y described as mere fortuity

. ” Id

. (citing Ex xo n Co., U.S.A. v. Sofec, Inc.
, 517 U.S. 830, 838–39 (1996)). F or this r eason, “[ p] rox imate

c a u s e i s often ex p licated in terms of foreseeability or the
scope of the risk created by the predicate conduct.” Paroline

,I

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1 3 4 S. Ct. at 1719 (citing 1 Restatement (Third) o f Torts : L iability for Phy sical and Emotional H a r m § 29, p

. 493 (2005)).

W e have no trouble finding a sufficient causal connection between Sea Shepherd US’s in t entional conduct a nd vio l a tions of the injunction. Sea Shepherd US knew that there was a very hig h risk that foreig n Sea Shepherd entities would use the B o b B a r k

e r to violate the injunction. I t was clearly foreseeable that transferring the owner s h i p and control of the vessel to Sea Shepherd Netherlands in o r d e r t hat it participate in OZ T w ould result in vio l a tions o f our injunction.

The fact that the foreig n Sea Shepherd entities had a more direct role in causing the v iolations than Sea Shepherd US does not neg ate the causal c o n nection between Sea Shepherd US’s acts and the violations of our injunction. An event may have multiple prox imate causes. See id

. ( “ E very event has
many causes

. . . a

nd only some of them are prox imate, as the law uses that term.”); Sheridan v. Un i t ed States
, 487 U.S. 392, 406 (1988) (Kennedy

, J
., concurring ) (“I t is standard tort doctrine that a reasonably foreseeable injury can arise from multiple causes, each arising from a breach of a different duty and each i m p o sing liability according ly .”); see also Lillie v

. Thompson

, 332 U.S. 4 59, 461–62 ( 1947) (per curiam). As we h a v e observed in apply ing California tort law, “the fact th at the actor’s conduct becomes ef f ective in harm only throug h the intervention of n ew and independent forces for w hich the
actor is not responsible is of n o importance.” Bank of N.Y

. v

. Fre m ont Gen. Corp.
, 523 F .3d 902, 910 (9th Cir. 2 008) ( q u o ting Tate v. Canonica
, 180 Cal. App. 2d 898, 9 0 7 (1960)). “[ N] o consideration is g iven to the fact that

. . . the actor’s conduct has created a situation harmless unless actedI

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upon by other forces for which the actor is not responsible.” Tate
, 180 Ca l

. Ap p

. 2d at 907 (internal quotation marks omitted). B y analog y , a p arty who acts knowing t h a t his conduct is hig hly likely to cause a violation of an injunction
may not avoid liability simply b ecause another person outside his immediate control actually carried out the violation.

W e a re mindful that the contempt power, like other “inherent pow e r s” of the judiciary

, “ must be e x ercised with restraint and discretion.” See Roadway Express, Inc. v. P iper
, 447 U .S. 752, 7 64–65 (1980) (citing Gompers v. Bucks Stove & Range Co.
, 221 U.S. 418, 4 50–51 (1911); Green v. United States
, 365 U.S. 165, 193–94 (1958) (B lack, J
., d issenting )). Nevertheless, “[ t] he purpose of contempt pro c e e d ing s is to uphold the power o f the c ourt,” Bessette v. W .B. Conkey Co.
, 194 U.S. 324, 327 ( 1904), and t o e nsure that the court’s vindica t ion o f litig ants’ rig h ts is n ot merely sy mbolic. Our orders would have little practical force
, a n d would be rendered essentially meaning less, if we were un a b le to prevent p arties bound by them from f lag rantly and materially assisting others to do what they them s e l v e s are forbidden to do.

The D efendants arg ue that to h o l d them in contempt for aiding and abetting we must find t h e m “indirectly liable,” because “[ t] he alleg ed acts o f contempt were co m mitted b y third p a r ties.” The Defendants contend that this r equires a clear and convincing showing that they “incited” o r “controlled” the third-party acts of contempt. This arg ument is without merit.

W h ile the record amply support s the inference that Sea Shepherd US, and W atson i n p articular (discussed infra ), “incited” o thers to violate t h e injunction, a showing o fI

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incitement or control is not required to hold Sea Shepherd US in contempt. I t is not necess a r y to impute the acts of others
to Sea Shepherd US to hold it in contempt; w e h o ld Sea Shepherd US in contempt for t h e a cts it committed after the injunction issued. See Laborers’ Int’l Union of N. Am., AFLCIO
, 8 82 F

. 2d at 954 (“One need not commit an unlawful act in order to be l i a b l e fo r conspiring to evade a judg ment of a court: it is contempt to act solely fo r t he purpose of evading

a judg ment.”); John B. Stetson Co.
, 128 F .2d at 983 (holding that courts may

“find a breach of the decree in a violation of the spirit of the injunction, e ven t h oug h its strict letter may not have been disreg arded”). As a p arty to the injunction, Sea Shepherd US is liable b ecause it intentionally furnished cash
pay ments, and a vessel and e quipment worth millions o f dollars, to individuals and entities it knew would likely violate the injunction.

The out-of-circuit cases Sea Shepherd US cites in support of its incitement and control arg ument are plainly irr e l evant to the issues presented here. Sea Shepherd US cites a F ederal Circuit patent c ase, Tegal Corp. v. Tokyo Electron Co., Ltd.

, 248 F .3d 1376, 1378 (F ed. Cir. 2 001). B ut Tegal held only that a p a rty enjoined from “facilitating ” infring ement of a patent canno t b e held in contempt merely for f ailing to prevent another’s i nfring ement, absent an affirmative act o f facilitation. Id

. at 1378–80. This holding is not relevant to our facts, which do involve affirmative acts.

Sea Shepherd US’s citation to National Organization for W omen, Inc. v. Scheidler

, 267 F .3d 6 8 7 ( 7th Cir. 2001), rev’d

on other grounds

, 537 U.S. 3 9 3 ( 2003), is also unavailing

. The injuncti on in S

cheidler ex p licitly prohibited the defendants from “aiding

, a b e tting

, inducing

, directing

, o r inciting ” o t h er s t o violate the injunction. Id

. at 705. TheI

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Scheidler defendants arg ued that the injunction ex posed them
to liability for the conduct o f p ersons they did not control, a nd whose actions the y did not authoriz e. Id

. at 706. The Seventh Circuit disag reed, finding that “[ n] othing in the order purports to hold the d efendants liable for actions they do not direct, incite, or control.” I d

. at 707. Even if Scheidler ’s

narrow h olding about the specific terms of one injunction could be construed broadly as a holding about the g eneral law of contempt for a iding and abetting

, and it clearly c annot, the holding would not apply h ere. W e do n ot purport to hold any of the D efendants liable for actions they did not direct, incite,

or c o n t r ol. Rather, w e hold them liable only for their o wn intentional acts in furtherance of OZ T. A party bound by an injunction may not provi d e a non-party with the means to violate it, knowing the non-party will be likely

to do so.

Sea Shepherd US also arg ues that contempt for aiding a nd abetting requires a showing that a third-part y ’ s violations were “for the benefit of, or to assist” Sea Shepherd US. B ut the out-of-circuit case Sea Shepherd U S c ites in support o f this arg u ment is clearly inapposite. S e e Goya Foods, Inc.
, 290 F .3d at 75. Goya Foods addresses w he n a n o n-party to

an injunction may be held in contempt for conduct that would violate the injunction if performed by a party bound b y it. Id

. The F irst Circuit held that, to be liable for civil contempt, a non-party ’s “challeng ed action must be taken for the benefit of, or to a ssist, a p arty subject to the decree.” I d

. This requirement, like Rule 65’s requirement that a person cannot b e bound b y an injunction unless he is in “active c oncert o r participation with” a party , is animated p artly by due process

concerns raised when courts s eek to bind a non-party

. See F ed R. Civ. P. 65(d)(2)(C); Max’s Seafood Cafe ex rel. LouAn n , I n c

. , 176 F .3d at 674. Holding Sea Shepherd US in

c o n tempt for v iolating an injunction to which it is a pa r t yI

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raises n o a n alog ous due process concerns. Sea Shepherd US’s liability for intentionally a ssisting non-parties to violate

an injunction by which it is clearly bound does not depend on whether the non-partie s v i o lated the injunction for Sea Shepherd US’s benefit, or their own, or for no reason at all.

The Defendants also arg ue that they should n o t be h e ld in
contem p t because the so-called “separation strateg y ” was based o n a r easonable and g ood faith interpretati on of the injunction. W e reject this arg ument.

I t is true that we have recog niz ed a narrow “g ood faith”

ex c e ption to the g eneral rule that in tent is irrelevant in civil contempt proceeding s. See Vertex
, 689 F .2d at 889. W e h eld in Vertex that “if a d efendant’s action appears to be based on

a g ood faith and reasonable interpretation o f ( t he court’s order), he should not be held in contempt

. ” Id

. (internal quotation marks omitted). B y its terms, the V ertex ex c eption only applies w here a d efendant’s inte r p retation is “reasonable.” Parties who act on the u nreasonable advice o f counsel risk being held in contempt if their actions violate a court’s order.

The facts of this case, however, d o not require a V ert ex inquiry into the reasonableness of the Defendants’ interpretation of our injunction. The principle announced in Vertex was based on the well-established rule that a “vag ue” order may n o t b e enforced. See id

. (citing I nt’l Longshoremen’s Ass’n, Local 1291 v. P h i l a

. Marine Trade Ass’n
, 389 U.S. 64, 76 (1967) (reversing a civil c o n tempt judg ment founded upon a d ecree too vag ue to be understood)). I n Vertex
, the parties disputed whether the

w o r d s “includes” and “incorporating ” in the consent j u dg ment were impermissibly vag ue. 689 F .2d at 890. T h eI

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case thus involved a “semantic battle” a bout the meaning o f alleg edly vag ue terms in the lang u a ge o f the judg ment. See id

.

No such “semantic battle” is at issue here. The meaning of the tex t o f the injunction is not disputed b y any of the parties. No one c ontends that the injunction’s tex t states, in

so many words, that Se a Shepherd US may n ot donate millions of d ollars of equipment to entities it knows are likely
t o violate the injunction. A nd no o ne contends that the t e x t states that Sea Shepherd US may not continue to fund OZ T, knowing that violations of the injunction were likely to occur if the campaig n proce e d e d u nabated. T he language of the injunction itself is not am b i guous. W hat the Defendants claim is ambig uous, however

, i s w hether they could avoid liability by hewing to the n arrow letter of the injunction while simultaneously ig noring its spiri t by g iving substantial assistance to OZ T. Vertex is n ot relevant to resolving such an “ambig uity .”

Even if the Vertex e x ception were applicable here, we would find that the Defendants u nreasonably reso lved the “ambig uity .” I n making this determination, we are g uided b y the Supreme Court’s commentary in McComb v. Jacksonville Pa p e r C o

. , 336 U.S. 1 87 (1949). I n McComb

, the Court reversed a d i strict court’s decision declining to enforce an injunction that prohibited a pa r t y from violating the F air L abor Standards Act. Id . at 194. B oth the district court and the court of appeals found that the a lleg ed contemnor’s specific conduct did not violate the injunction’s g e neral prohib i t i on a g ainst violations of the F L SA. I d

. at 190–91. Noting that the respondents “acted at thei r peril” when they “undertook to make their own determin a t i on of w hat the decree meant,” id . at 192, the Court reasoned:I

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I t does not lie in their mouths to say that they have an immu n ity from civil contempt because the plan o r scheme which they adopted was no t specifically enjoined. Such

a r ule would g ive tremendous impetus to th e p r o g r a m o f e x p e r i m e n t a t i o n w i t h disobedience of the law which we condemned in Maggio v. Zeitz [ 1 ]

. . . . The instant case is

an ex cellent illustration of how it could operate t o p r e v e n t accountability for persistent

c o n tumacy

. Civil contempt is avoided today by showing that the specific plan adopted b y

r e s pondents w as not enjoined. Hence a ne w de cree is entered enjoining that p a rticular plan. Thereafter the defendants work out a pl an that was not specifically enjoined. I mmunity is once more obtained because the

new plan was not specifically e n joined. And

so a whole series of wrong s is perpetrated a nd a decree of enforcement g oes for naug ht.

Id . at 192–93.

To find the Defendants ’ s e l f

- s e r ving interpretation of their oblig atio n s u

n d er our injunction r easonable would be to invite “ex p e rimentation w ith d i s o bedience.” The schemes available
to those determined to evade injunctions are many and varied,

see, e.g. , Deena Artware, Inc.
, 3 6 1 U.S. at 398; Laborers’ Int’l Union of N. Am., AFL-CI O
, 8 82 F .2d at 954; Parker v

.

1 3 3 3 U.S. 5 6
, 6 9 (1 9 48 ) (o b serv in g i n d if f eren t co n tex t th at “ [t]h e p ro ced u re to en f

o rce a co u rt’ s o rd er co m m an d in g or f

orb i d d in g an act sh o u ld n o t b e so in co n clu siv e as to f o ster ex p erim en tatio n w i th d iso bed ien ce”).I

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United States
, 1 26 F .2d 370 (1st Cir. 1942), and no injunction

c a n ex plicitly prohibit every conceivable p lan desig ned t o defeat it. Thoug h they had every opportunity

, the Defendants did not seek clarification of their oblig ations. See McComb

, 336 U.S. at 192 (noting tha t t h e respondents could have avoided appeal by simply petitio n i n g for “modification, clarification or construction of the order”). By c onstruing their oblig ations n a

r rowly to include only refraining from acts specifically enumerated in the injunction, and not acts likely
to nullify the injunction, the Defendants assumed the risk that their attempts at technical c o mpliance would prove w anting

. W e according ly reject the Defendants’ g ood faith arg ument, and hold Sea Shepherd US in civil contempt.

II. Volunteer Board Mem bers

The Plaintiffs have also moved for contempt ag ainst Sea Shepherd US’s volunteer board members based o n their

r a t ification of the separation strateg y , and their approval o f transfers of ownership of valuable p roperty , for no consideration, to Sea Shepherd entities participating in OZ T. At the time th e i n

j u nction issued, the volunteer board

mem b e rs were L ani B laz ier, Marnie Gaede, B ob Talbot, Robert Wintner, B en Z uckerman, and Peter Rieman. Having f o u n d Sea Shepherd US liable for c ivil contempt, we also hold the board members just named in civil contempt.

The law is clear that those who c o ntrol an org aniz ation
may be held liable if they fail to take a ppro p ri a t e action to ensure compliance with an injunction:

A command t o the corporation is in effect a command to those who are officially

r e s p o n sible for the conduct of its affairs. I fI

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they

, a pprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance o f the c orporate duty

, they

, no les s t h a n the corporation itself, are g uilty o f disobedience, and may be punished for contempt.

W ilson v. United States , 221 U.S. 361, 376 (1911). There is

no dispute t h a t the individual board members knew of the injunction a

nd voted to implement the separatio n strateg y , including the transfer of property for no consideration to Sea Shepherd Australia and Sea Shepherd Netherlands.

The A ppellate Comm i ssioner made much of the volunteer directors’ reliance on the a d v i c e of counsel, and the Defendants urg e us to d o the same. B ut the Commissioner’s conclusion that the volunteer directors i n t e nded to comply

w i t h t h e injunction is at odds with Sea Shepherd US’s subsequent concession at oral arg ument that the board knew there was a “very hig h risk” the vessel and e q u i p ment it provided would be used to violate the injunction. Under the circumstances, it is simply no t c r e d ible that the volunteer directors believed they were compl y i n g with the injunction when they a g reed to g r ant, for no consideration, millions o f dollars o f e quipment and materials needed to carry out OZ T
t o entities they believed would be hig hly likely to use tho s e materials to violate the injunction.

Moreover, even if we were to assume, arguendo

, that the volunteer directors truly a cted in reliance on counsel’s advice, that reliance is larg ely

irrelevant. There is “no basis in law” for a “‘g ood faith’ ex ception to the requirement of obedience to a court order.” In re Crystal Palace Gambling Hall, Inc.
,I

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8 1 7 F .2d 1 361, 1365 ( 9 th Cir. 1987). A party ’s g ood fait h relianc e o n the advice o f counsel does not ex cuse the violation of a court’s order. See Steinert v. United States
, 571 F .2d 1105, 1108 ( 9th Cir. 1978) (holding that “[ d] isobedience of a valid court order does not cease to be willful when done in g ood faith reliance o n t he advice o f a tax accountant”); Eustace v. Lynch , 80 F .2d 652, 656 (9th Cir. 1935) (holding that the “ a d v i ce of an attorney is not a defense to an act o f contempt”); see also United S tates v. Asay
, 614 F .2d 655, 661 (9th Cir. 1980) (holding that defiance of summonses w a s “willful d espite the a dvice of c o unsel” (citing S teinert
, 571 F. 2 d a t 1108)). As we observed in Steinert
, “[ t] o hold otherwise would make stultification of a court or der impermissibly easy

. I n liti ga tion frequently the client must

assume the r isks of h i s advisor’s errors.” 571 F .2d at 1108. According ly

, the volunteer directors may be held li a b le for contempt.

A. P eter Riem an

Peter Rieman stands in a somewhat differ ent position than the other named board members. Rieman resig ned from the board o n F ebruary 11, 2013, following the first alleg ed violation of the injunction on J anuary 29, 2013. Rieman was concerned that he had no control o v e r the actions of those involved in OZ T and was worried that he fa ce d personal

ex p osure for subsequent violations of the injunction.

T he Appellate Commissioner concluded correctly that “[ i] f SSCS’s actions (and inactions) p u t it in c ontempt, then [ Rieman] is as liable as the other Volunteer Directors.” I t is
true that Rieman lacked control over Sea Shepherd U S a fter he re s ig ned in F ebruary 2013. B u t b y that time, he h ad already voted to ratify a

nd implement the separation strateg y ,I

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and an OZ T v e ssel had already breached the safety perimeter i m p osed b y our injunction. Rieman’s resig nation therefo r e does not immuniz e him from liability for contempt. 2

B. Volunteer P rotection Act

The v o l u n teer d irectors arg u e that the provisions of the Volunteer Protection Ac t ( VPA), 42 U.S.C. § 14503, immuniz e them from a finding o f c o n tempt. W e reject this
arg ument, a

nd hold that the VPA does not affect the power o f federal courts to impose civil fines to redress contempt.

Under some circum s t ances, the VPA immuniz e s volunteers from liability f or harm caused by a c t ions taken within the scope of their volunteer responsibilities. The VPA provides in relevant part:

[ N] o volunteer of a nonprofit org aniz ation or
g overnmental entity sha l l be liable for harm caused by an act or omission of the volunteer on behalf of the org aniz ation or entity if–

(1) the volunteer was acting within the scope of the volunteer’s responsibilities in the nonprofit org aniz ation or g overnmental entity at the time of the act or omission;

[ and]

. . .

2 T h is f in din g o f co n tem

p t as to Riem an d o es n o t, h o w ev er, p reclu d e th e tak i n g in t o acco u n t o f h i s early resig n atio n b y w ay o f m itig atio n w h en ap p ro p riate rem ed ial san ctio n s are co n sid ered u n d er P art V, b elo w

.I

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(3) the harm was not caused b y willful o r

c ri m i n a l m i s c o nduct, g ross neg lig enc e, reckless misconduct, or a conscious, f l ag rant indifference t o t he rig h ts o r safety o f the individual harmed by

the volunteer . . . .

42 U.S.C. § 14503(a).

The Plaintiffs raise a host of arg uments why the volunteer directors do not qualify for immunity under the VPA. The Plaintiffs contend that the attorney ’ s fees they s e e k are not “harm” under § 14503(a); that the b o a r d members’ misconduct was willful under § 14503(a)(3); and that they did
not act within the scope o f their responsibilities under § 14503(a)(1) when they ratified the separation strateg y

. W e need not a ddress these arg uments, for we hold that the VPA does not affect our p ower to h o ld those b o u n d by our injunction in contempt.

W e find it hig hly improbable that w hen Cong r e ss passed the VPA, it intended to prohibit fede ra l courts from finding volunteer b oard members liable fo r t heir acts of contempt. 3 The tex t of the VPA does not specifically mention courts’ equity jurisdiction o r thei r c o n t empt p owers. Nor d oes the VPA’s leg islative history provide support for the conclusion that Cong ress’s purposes included curbing the judicial power

3 T h e p arties larg ely f

o cu s t h eir arg u m en ts o n w

h eth er th e V P A ap p lies
to f ed eral cau ses o f actio n , in ad d itio n to st a t e c a u s es o f actio n

. Bu t

w h eth er th e VP A ap plies to f ed eral cau ses o f actio n is n o t d irectly relev an t to w h eth er th e VP A circu m scrib es f ed eral co u

rts’ co n tem

p t p o w er, an d th e

cases cited are in ap p o site. S ee Armen d

a rez v. Glen d

a le Yo u th Ctr., In c. , 2 6 5 F. S u p p

. 2 d 1 1 3 6
, 1 1 4 0 (D. A riz. 2 0 0 3 ); Nu nez v. Du n ca n , 2 0 0 4 W L 1 2 7 4 4 0 2
, at * 1 (D. Or. J u n e 9
, 20 0 4); Am. Pro d u c e , L LC v. Ha rvest S h a rin g, In c. , 2 0 1 3 W L 1 1 6 4 4 0 3 , at * 3 (D. Co lo . Mar. 2 0 , 2 0 1 3 ).I

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to enforce orders th r o ug h c o n tempt. The Committee on the J udiciary ’s r e p ort observed that “H.R. 911, as amended, immuniz es a v olun t eer from liability for harm c aused b y ordinary negligence

. ” H.R. Rep. 105-101(I ) at 5 (emph asis added). The committee report also speaks of the “litig ation

craz e” and “[ o] ur ‘sue happy ’ culture.” Id

. I t ex plain s that the V P A is “intended to remove a sig nificant barrier—the fear of unreasonable leg al liability —to inducing individuals
to volunteer their time to char i t a ble endeavors.” Id. (emphasis added). These references indicate that the VPA’s
purpose was to curb lawsuit s a ga inst volunteers, not to curb courts’ contempt power.

The impor t a n c e o f the power of courts to punish for contempt makes it h i gh ly unlikely that Cong r ess would curtail that power without ex plicitly indicating its intention. “[ T] he power of courts to punish for contempts is a necessary and integ ral part of the independence of the judiciary , and is absolutely essential to the p erformance of the duties imposed

o n t h em by law.” Gompers v

. Buck’s Stove & Range Co.
, 221 U.S. 418, 450 (1911). This power is “ i n h erent in all courts.” Michaelson

, 266 U.S. at 65. W e acknowledg e that C ong r ess may limit lower federal courts’ ex ercise o f t h e contempt power. See, e.g. , Bessette v. W

. B

. C o n key Co.
, 194 U.S. 324 (1904); Ex Parte Robinson

, 86 U.S. 505 (1873). “Nevertheless, ‘we do not lig h tl y a ssume that Cong ress has intended to depart f

rom established principles’ such as the
scope of a court’s inherent powe r

. ” Chambers v

. NASCO, Inc
., 501 U.S. 32, 4 7 (1991) (quoting W einberger v

. Romero–Barcelo

, 456 U.S. 305, 313 (1982)); see also Link v

. W abash R.R. Co.
, 370 U.S. 626, 631–32 (1962). A bsent a “mu c h clearer ex pression o f purpose,” see Link

, 370 U.S. at 631–32, we w ill not a ssum e t h at Cong r ess intended to limit our inherent power to punish contempt.I

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W e according ly hold that the VPA does not reach federal courts’ power to find v o l u n teer board members in contempt of their orders. According ly

, the VPA does not immuniz e Sea Shepherd US’s volunteer board members from lia b i lity for contempt.

III. Watson

I n addition to holding W a tson in contempt as the Ex ecutive D irector of Sea S h e p h erd US, we h old him in contempt for personally violating the injunctio n by coming within 500 y ards of one of the Plaintiffs’ vessels.

Unlike the other individual respondents, Watson was present in the Southern Ocean aboard the Steve Irwin during the entire OZ T campaig n. W atson claimed to believe that he could stay on the Steve Irwin
, actin g a s an observer, a nd remain in compliance w ith the injunction. Ch akravarty

, the captain of the Steve Irwin
, assured W at s o n t hat the ship would not approach within 500 y ards of the whaling v essels. The two developed a conting ency plan i n t h e event that the Steve Irwin looked like it mig h t b r e ach the 500-y ard safety perimeter. Under the p lan, Chakravarty would transfer W a tson to the Brigitte Bard o t prior to any encounter. This plan proved u nworkable in practice. Chakravarty abandoned the plan to transfer W atson in mid-F ebruary when he and the other captains attempted a blockade to prevent one of the Plaintiffs ’ v e s s els from refueling

. As a result, W atson personally c ame within 500 y ards of the Plaintiffs’ whaling vessel while on board the Steve Irwin

.

W a tson testified that he did not disembark the S teve Irwin because h e believed that he risked detention or ex tradition if he did so in Australia or New Z ealand, the only two countriesI

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w i t hin 1000 miles of the Steve Irwin ’ s position. W h en th e injunction issued, W a tson was subject to an I NTERPOL red notice for criminal c h arg es he faced in J apan. B ut there was strong evidence that W a tson was unlikely to be ex tradited from Australia, and that he knew it. Sea Shepherd was very popular in Australia, and W atson’s Australian attorn e y h ad advised him that the risk o f arrest and ex tradition by Australia
was remote.

W e find that W atson failed to take all reasonable steps within his p ower to comply with the injunction. A reasonable person in Watson’s position would not have tried to evade a
warrant for h i s a r rest while also r isking b eing held in contempt. T o hold otherwise would be to condone a s reasonable W atson’s attempt to evade the criminal charg es he was facing

. W e according ly hold W atson in civil contempt for coming within 500 y ards of Plaintiffs’ vessels.

IV. Hartland

The Plaintiffs also request that Hartland, Sea Sheph e r d US’s Administrative Director, be h eld in contempt. Hartland is in a different position than the other individual respondents. She was not a member of Sea Shepherd US’s board, and accord i n gl y did not vote to ratify the separation strateg y

. As the App e l l a t e Commissioner found, “[ t] here is

no evidence that Hartland took any action in response to the injunction that was not authoriz e d by the SSCS board.” This alone d oes not immuniz e Hartland from c ontempt, f or our injunction ex pli c i t l y bound not just Sea Shepherd US a nd W a tson, but those acting “i n concert” with them. However, unlike the v olunteer board members, Hartland could only have complied with the injunction by r esig ning from her p aid employ ment. Under the specific circumstances of this c ase,I

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we conclude that it w ould not be equi t a b l e to hold Hartland in contempt.

V. Appropriate Rem edial Sanctions

The Plaintiffs request three forms of relief to redress the Defendants’ conte mpt: (1) attorney ’s fees and costs a s compensation for bring ing the Defendants’ acts of contempt to the attention of the court; ( 2) bonded, suspended sanctions in the amount of $2 million or such a mount the court deems
appropr i ate; and (3) an order directing that the Defendants
may purg e themselves of contemp t by seeking in g ood faith to revoke their g rants of property to Sea Shepherd entities.

W e hold that the Plain tiffs are entitled to r ecover attorney ’s f

e es and costs incurred in bring ing and prosecuting these contempt proceeding s. “[ T] h e cost of bring ing the violation to the attention of the court is part of the damag e s suffered by the prevailing party and those costs would reduce
any benefits g ained by the prevailing part y f r o m the court’s violated o r der.” Perry v. O’Donnell

, 759 F .2d 7 0 2, 705 (9th Cir. 1985). At a minimum, the Pl aintiffs shall r ecover their fees an d co sts ag ainst Sea Shepherd US and W a tson. The Plaintiffs a

re also entitle d to compensation for any actual damag es suffered a

nd resources (s u ch as fuel and personnel costs) that w ere wasted as a result of the Defendants’ contumacious acts i n t erfering with the Plaintiffs’ mission. W e will re-refer this matter to the Appellate Commissioner to determine the a

ppropriate amount of attorney ’s fees and costs

as well as compensatory damag es to award. The Commissioner shal l determine whether the volunteer directors should also be h el d liable, and the ex tent to which each of them should be held liable, jointly and/or severally

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The Plaintiffs’ requests for c o e rcive sanctions and an order to c ompel compliance should b e directed to the district
court. Our opinion o f F ebruary 25, 2013, as am e n d e d May 24, 2013, provided that the preliminary injunction “ w ill

rem a i n in effect until further order o f this court.” Inst. of Cetacean Research

, 725 F .3d at 9 4 7

. However, we issued

our mandate o n J une 7, 2013, at which time the district court

assume d s u p e rv i s i o n o v e r t he Defendants’ present compliance with the preliminary injunction. W hile we retain jurisdiction to order remedial relief for acts of contempt that took place prior to the issuance of our mandate, because these coerciv e sanctions are forward-looking

, we b e lieve that policing the Defendants’ continuing compliance w ith the preliminary i n

j unction is better left to the d istrict court, subject to our revi e w o n appeal. This panel retains jurisdiction over all appeals in this case.

CONCLUSION

W e hold Sea Shephe rd Conservation Society

, Paul W a tson, L a ni B laz ier, Marnie Gaede, B ob Talbot, Robert W intne r , B en Z uckerman, and Peter Rieman in civil contempt. W e do not hold Susan Hartland in contempt. W e re-refer this matter to the Appellate Commissioner for f urther proceeding s in a separate order filed contemporaneously

.

IT IS SO ORDERED.