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Fourth Circuit - Piracy Conviction Affirmed

The Fourth Circuit Court of Appeals affirmed a Somali pirates' conviction for various federal offenses including piracy and violence against maritime navigation. The case is USA v. Shibin and the opinion can be found here.

This case arose out of several piracies off the Somali coast in 2010 and 2011.  The defendant had various roles in the piracies, including negotiator and "regular" pirate.

The FBI, in conjunction with Somali "Host Nation Defense Forces", arrested Shibin in Somalia.

Among the issues on appeal are the argument that Shibin did not actually venture into the high seas, but was only charged with aiding and abetting piracies that occurred on the high seas and was not personally on the high seas.  Interpreting the United Nations Convention on the Law of the Sea, the court found that the geographic element of piracy did not apply to those that are charged with facilitating piracy.  Sl ong as the non-high seas conduct incited or facilitated acts committed on the high seas, the Article was violated.

Shibin also argued that he was forcibly removed from Somalia and had not opportunity to challenge his removal in Somalia, noting that there was no extradition treaty between Somalia and the United States.  This argument has failed before in U.S. courts, under the Ker-Frisbie Doctrine, and it failed here.

Shibin also argued that the prosecution was based on statutes that could not apply extraterritorially.  The court found constitutional authority for the extraterritorial crimes:

Congress’ power to enact statutes that extend extraterritorially is derived generally from the Define and Punish Clause, U.S. Const. art. I, § 8, cl. 10; the Treaty Power, U.S. Const. art. II, § 2, cl. 2; and the Necessary and Proper Clause, U.S. Const. art. I, § 8, cl. 18.

Thus far, there are no circuit splits, so it seems that piracy cases won't be making it to the Supreme Court any time soon.

Coast Guard - You Want Your Boat Back? We Set Bond Amount - Angelex v. US

Hot off the Press:  the Fourth Circuit Court of Appeals just issued a decision arising out of a "Magic Pipe" case and the shipowner's attempt to post a bond allowing the offending vessel to sail.  The case is Angelex, Ltd. v. United States of America and the opinion can be found here. 

The United States is a signatory to the MARPOL treaty of 1978 which seeks to eliminated international pollution from the marine environment.  To implement the treaty, Congress enacted the "Act to Prevent Pollution from Ships", codified at 33 U.S.C. 1901-15.  The Act and the regulations implemented under the Act's authority require ships to maintain an Oil Record Book which records discharges of oil. During a Coast Guard inspection of Angelex's vessel, the inspector discovered that the oily water separator was bypassed and a crewmember advised the inspector that oily water was discharged. That discharge was not noted in the Oil Record Book.

As is customary, the Coast Guard requested that the Customs Service withhold "clearance" so that the vessel could not depart from the U.S. port.  The Act does allow shipowners to post a bond which, if approved, would allow the vessel to sail.  The Coast Guard and shipowner tried to negotiate a bond amount, but could not reach an agreed upon sum.  The shipowner brought suit and with the judge's assistance reached an agreement as to bond amount, subject to approval by Coast Guard Headquarters.  Headquarters did not approve the agreed-upon conditional amount.  The judge issued an order directing the bond amount and other terms.  The government appealed.

The Fourth Circuit overruled the district judge's decision.  It found that under the Act to Prevent Pollution from Ships, the Coast Guard had fully discretionary authority to set the bond amount.  Therefore, the courts had no jurisdiction under the Administrative Procedures Act.  Also, because the statute had a provision that allowed a claim against the government for unreasonable detention.  This safeguard against overreach by the government made the shipowner's requested injunctive relief to be beyond the federal court's power.

Ninth Circuit Approves Use of Sub-Regions for Endangered Species Determinations

The Ninth Circuit Court of Appeals just affirmed the use of geographic sub-regions to determine the impact of commercial fishing on critical habitat and population levels.  The case is Alaska v. Lubchenko and the opinion can be found here.

From the court's summary:

The panel affirmed the district court’s judgment rejecting the claims of fishing industry representatives and the State of Alaska in an action challenging limitations to the commercial fishing industry the National Marine Fisheries Services placed on sub-regions of the Pacific Ocean inhabited by the endangered western Distinct Population Segment of Stellar sea lions.

The panel held that use of sub-regions did not violate the Endangered Species Act and that the agency utilized appropriate standards to find that continuing previous fishing levels in those sub-regions would adversely modify the critical habitat and jeopardize the continued existence of the entire population. The panel also held that the district court did not err by refusing to order preparation of a Record of Decision pursuant to the National Environmental Policy Act because it would be premature in the absence of the agency’s proposed action based on the Environmental Impact Statement record it develops.

In the case, the federal government used the "western Distinct Population Segment" of the Steller Sea Lion in Alaska.  Two of the seven sub-regions have experienced population declines attributed to nutritional stress.  The National Marine Fishereise Service limited fishing in those areas, which prompted this lawsuit.

At issue was whether the Endangered Species Act precluded the use of a sub-region approach to species health as opposed to a species-level inquiry.  The argument was that the species as a whole has a different population trend than a sub-region.  Analyzing the Endangered Species Act, the court ultimately held that the government could use sub-regions.

Stay tuned.

Sea Shepherd Piracy Case Bound for SCT?

Well, no cert petition yet, but the Ninth Circuit rejected the Sea Shepherd Conservation Society's petition for rehearing en banc.  I earlier posted about this case here.

Per the court:

The opinion is amended as follows:Defendants-Appellees’ petition for rehearing en banc is denied. See Fed. R. App. P. 35.

Paul Watson’s petition for rehearing en banc of our April 1, 2013, order denying him leave to file a late supplemental petition for rehearing en banc is also denied. See id. We are unpersuaded by Watson’s belated claim that he and co-defendant-appellee Sea Shepherd developed “divergent interests.” Watson had months to consider whether his interests diverge from Sea Shepherd’s, yet claims to have discovered only recently that they do. He does not explain how or why. His bald assurance that “serious grounds exist[]” is too little, too late.

No further petitions for panel rehearing or rehearing en banc may be filed.

Next stop, Supreme Court? We shall see.