Case 2:11-cv-02043-JLR Document 176 Filed 04/11/14 Page 1 of 5

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The Honorable James L. Robart

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE THE INSTITUTE OF CETACEAN RESEARCH, a Japanese research foundation; KYODO SENPAKU KAISHA, LTD., a Japanese corporation; TOMOYUKI OGAWA, an individual; and TOSHIYUKI MIURA, an individual, Plaintiffs, v. SEA SHEPHERD CONSERVATION SOCIETY, an Oregon nonprofit corporation, and PAUL WATSON, an individual, Defendants. ___________________________________ SEA SHEPHERD CONSERVATION SOCIETY, an Oregon nonprofit corporation, Counterplaintiff, v. THE INSTITUTE OF CETACEAN RESEARCH, a Japanese research foundation; KYODO SENPAKU KAISHA, LTD., a Japanese corporation; and HIROYUKI KOMURA, an individual, Counterdefendants.

Case No. C11-2043JLR PLAINTIFFS MEMORANDUM IN SUPPORT OF CONTINUATION OF STAY OF THIS ACTION

PLAINTIFFS MEMORANDUM IN SUPPORT OF CONTINUATION OF STAY OF THIS ACTION

(C11-2043JLR)

MILLER NASH LLP

AT T ORNE YS AT LA W T (503) 224-5858 | F (503) 224-0155 3400 U. S. BANC O RP T OWE R 111 S. W. FIFT H AVE N UE PO RT LAN D, ORE GON 97204

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Pursuant to the Courts minute order of March 20, 2014 (Dkt. No. 174), Plaintiffs submit this memorandum in support of continuing the stay of this action pending resolution of the Ninth Circuits contempt proceeding. The mandate of the Ninth Circuit issued on June 7, 2013. Dkt. No. 150. Pursuant to the Ninth Circuits decision reversing denial of Plaintiffs motion for preliminary injunction, should this case become active now, it appears this Court would be required to issue a preliminary injunction in accordance with the mandate. Plaintiffs expect that injunction would be substantially similar to the Ninth Circuits December 17, 2012 Injunction (Injunction). Dkt. No. 118. As noted in the previously filed Amended Joint Status Report (Dkt. No. 173), the Commissioner who heard the contempt proceeding recommended the Injunction remain in place to make sure that Defendants 1 do not engage in the conduct prohibited by the injunction. Dkt. No. 173, at 2. If the Ninth Circuit accepts that recommendation, then the Injunction may become permanent, and, if so, an injunction by this Court, at least in a form like the Ninth Circuits, would be redundant. Should the Injunction become permanent, then the day in court sought by Defendants as a reason to reactivate this case likely becomes unnecessary. Other rulings by the Ninth Circuit in the pending contempt proceeding may also impact this action. If the Ninth Circuit finds it was not Defendants who committed contempt, then Plaintiffs may need to add to this action the parties who did commit the contempt. While Defendants state they will oppose joinder of additional parties (Dkt. No. 173, at 6), the issues Defendants assert may not need to be addressed at all if the Ninth Circuit finds Defendants in contempt as argued by Plaintiffs. Plaintiffs expect additional parties they may seek to add to this action would include foreign parties. Joinder of foreign parties obviously affects the scope and timing of discovery. Even without additional parties, the scope of necessary discovery in this action will The reference to Defendants is a reference to all parties to the contempt proceeding and includes the Defendants in this action.

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PLAINTIFFS MEMORANDUM IN SUPPORT OF CONTINUATION OF STAY OF THIS ACTION - 1

(C11-2043JLR)

MILLER NASH LLP

AT T ORNE YS AT LA W T (503) 224-5858 | F (503) 224-0155 3400 U. S. BANC O RP T OWE R 111 S. W. FIFT H AVE N UE PO RT LAN D, ORE GON 97204

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be affected by the Ninth Circuit proceedings. For example, Plaintiffs complaint and motion for preliminary injunction concerned Operation Divine Wind, Defendants Southern Ocean campaign which occurred December 2011 through March 2012. The Ninth Circuit Injunction applied to the next seasonDecember 2012 through March 2013involving Defendants campaign Operation Zero Tolerance (OZT), as well as any campaign by Defendants in subsequent seasons. If the Ninth Circuit finds Defendants committed contempt with respect to OZT, then discovery as to OZT may be unnecessary and discovery as to prior campaigns may be limited or unnecessary. Defendants concede the scope of discovery will be impacted by the Ninth Circuit proceedings ([d]efendants agree that discovery of some facts may be unnecessary because of the depositions, and documents and materials produced during contempt discovery (particularly the facts surrounding OZT, as OZT was the subject of the contempt proceeding).). Dkt. No. 173, at 8:7-10. If the Ninth Circuit finds Defendants in contempt, purging becomes an issue. Plaintiffs have suggested to the Ninth Circuit that, in order for most of the Defendants to purge themselves of contempt, they should be ordered to take steps to retrieve ships granted to affiliates of defendant Sea Shepherd Conservation Society for use in the Southern Ocean campaigns. If the Ninth Circuit were to require this, that effort would also impact this action. Finally, factual determinations or other legal rulings by the Ninth Circuit in the contempt proceeding may also have preclusive effect in this action. In short, judicial economy and efficiency will be served by continuing to stay this action pending completion of the Ninth Circuit contempt proceedings. Also, as the Court knows from the Notice filed by Plaintiffs in this case March 31, 2014, the International Court of Justice (ICJ) in The Hague, Netherlands, just decided a case challenging Japans current Southern Ocean research program known as JARPA II. See Dkt. No. 175. As a result, the Government of Japan recently announced that JARPA II special permits would not be issued for Plaintiffs to conduct research in the Southern Ocean during the

PLAINTIFFS MEMORANDUM IN SUPPORT OF CONTINUATION OF STAY OF THIS ACTION - 2

(C11-2043JLR)

MILLER NASH LLP

AT T ORNE YS AT LA W T (503) 224-5858 | F (503) 224-0155 3400 U. S. BANC O RP T OWE R 111 S. W. FIFT H AVE N UE PO RT LAN D, ORE GON 97204

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2014-2015 season, which begins in December 2014 and ends in March 2015. For the information of the Court and parties, Plaintiffs expect that they will be conducting a Southern Ocean research program for subsequent seasons that would be in accord with the ICJ decision. DATED this 11th day of April, 2014.

By: s/ John Neupert John F. Neupert, P.C. #39883 MILLER NASH LLP 111 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97204 Telephone: (503) 224-5858 or (206) 622-8484 Fax: (503) 224-0155 E-mail: john.neupert@millernash.com Of Attorneys for Plaintiffs and for Counterdefendants The Institute of Cetacean Research and Kyodo Senpaku Kaisha, Ltd.

PLAINTIFFS MEMORANDUM IN SUPPORT OF CONTINUATION OF STAY OF THIS ACTION - 3

(C11-2043JLR)

MILLER NASH LLP

AT T ORNE YS AT LA W T (503) 224-5858 | F (503) 224-0155 3400 U. S. BANC O RP T OWE R 111 S. W. FIFT H AVE N UE PO RT LAN D, ORE GON 97204

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PDXDOCS:2030117.7

CERTIFICATE OF SERVICE I hereby certify that on April 11, 2014, I electronically filed the foregoing Plaintiffs Memorandum in Support of Continuation of Stay of This Action with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Daniel P. Harris dan@harrismoure.com Charles P. Moure charles@harrismoure.com Hilary Bricken hilary@harrismoure.com Rebecca Millican rebecca@harrismoure.com HARRIS & MOURE, PLLC 600 Stewart Street, Suite 1200 Seattle, Washington 98101 Telephone: (206) 224-5657 Fax: (206) 224-5659 Attorneys for Defendants and for Counterplaintiff DATED: April 11, 2014. By: s/ John Neupert John F. Neupert, P.C. #39883 MILLER NASH LLP 111 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97204 Telephone: (503) 224-5858 or (206) 622-8484 E-mail:john.neupert@millernash.com Of Attorneys for Plaintiffs and for Counterdefendants The Institute of Cetacean Research and Kyodo Senpaku Kaisha, Ltd.

CERTIFICATE OF SERVICE - 1
(C11-2043JLR)

MILLER NASH LLP

AT T ORNE YS AT LA W T (503) 224-5858 | F (503) 224-0155 3400 U. S. BANC O RP T OWE R 111 S. W. FIFT H AVE N UE PO RT LAN D, ORE GON 97204