                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 19 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

INSTITUTE OF CETACEAN                            No. 12-35266
RESEARCH, a Japanese research
foundation; KYODO SENPAKU                        D.C. No. 2:11-cv-02043-RAJ
KAISHA, LTD., a Japanese corporation;
TOMOYUKI OGAWA, an individual;
TOSHIYUKI MIURA, an individual,                  MEMORANDUM*

              Plaintiffs - Appellants,

  v.

SEA SHEPHERD CONSERVATION
SOCIETY, an Oregon nonprofit
corporation; PAUL WATSON, an
individual,

              Defendants - Appellees.


                             On a Motion for Contempt

                     Argued and Submitted October 27, 2014
                              Pasadena, California

Before: KOZINSKI, TASHIMA, and M. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         The Plaintiffs and the Defendants object to the Appellate Commissioner’s

Report and Recommendation recommending that the Defendants not be held in

contempt. We address most of their arguments in an opinion filed separately. The

Defendants briefly raise, but do not fully support, three additional arguments in

their objections. We address these arguments here.

         The Defendants cite Schenck v. Pro-Choice Network of Western New York,

519 U.S. 357 (1997), and argue that our injunction’s requirement that they remain

500 yards away from the Plaintiffs on the open sea violates the First Amendment.

We reject this argument. As we recently held in Shell Offshore, Inc. v.

Greenpeace, Inc., “the high seas are not a public forum, and the lessons of Schenck

have little applicability there.” 709 F.3d 1281, 1291 (9th Cir. 2013). We therefore

hold that the injunction did not violate the Defendants’ rights under the First

Amendment.

         The Defendants also contend that our injunction was “issued sua sponte and

without notice to any enjoined party, contravening the requirements of Federal

Rule of Appellate Procedure 8 and basic notions of due process.” We reject this

argument as well. It is undisputed that all parties to the injunction received notice

of it.




                                          2
      Lastly, the Defendants contend that our injunction “reaches purely

extraterritorial conduct that does not violate specific and universal international-

law norms, in violation of Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659

(2013).” Kiobel concerns the reach of the Alien Tort Statute, which provides that

“[t]he district courts shall have original jurisdiction of any civil action by an alien

for a tort only, committed in violation of the law of nations or a treaty of the

United States.” 28 U.S.C. § 1350. We construe the Defendants’ argument, which

is not adequately briefed, as a challenge to the district court’s jurisdiction to hear

the Plaintiffs’ claims. We also reject this argument. The Plaintiffs’ piracy claims

fall within the ambit of the Alien Tort Statute because piracy is a violation of the

law of nations. See Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004) (noting

that Congress “may well” have had actions arising out of piracy in mind when it

enacted the Alien Tort Statute); United States v. Smith, 18 U.S. 153, 161 (1820)

(“The common law, too, recognises and punishes piracy as an offence, not against

its own municipal code, but as an offence against the law of nations, (which is part

of the common law,) as an offence against the universal law of society, a pirate

being deemed an enemy of the human race.”).




                                           3
