Inst of Cetacean Research v. Sea Shepherd Consv con/diss

FILED

FEB 25 2013

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, No. 12- 35266:

M. SMITH, Circuit Judge, concurring in part and dissenting in part:

I concur in both the reasoning and the judgment of the panel opinion,

reversing the district court’s dismissal of Cetacean’s piracy claims, and its failure

to grant Cetacean a preliminary injunction. Even if one believes it is barbaric to

harvest whales for any purpose at the beginning of the 21st century, as practiced by

Cetacean, it is clearly permitted under international law. See International

Convention for the Regulation of Whaling art. VIII, Dec. 2, 1946, 62 Stat. 1716,

161 U.N.T.S. 74. Sea Shepherd’s piracy is not. See Maj. Op. at 3–14.

However, I respectfully dissent from the majority’s decision to reassign this

case to a different district judge. “We remand to a different judge only in unusual

circumstances or when required to preserve the interests of justice.” United States

v. Wolf Child, 699 F.3d 1082, 1102 (9th Cir. 2012) (citing United States v. Quach,

302 F.3d 1096, 1103 (9th Cir. 2002)). Specifically, we employ a three-factor test

to…