Overcriminalized? Whale Watcher Faces Prison Time

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Marine biologist Nancy Black is a respected authority on whales. But now she could face years in prison for breaking a broad law that bans feeding the creatures.

Black has loved whales since she was a kid. For decades, she's given whale watching tours in California's Monterey Bay, using much of the profit to pay for her own whale research so taxpayers don't have to.

"Most of the work that she's gotten and done for the government has been basically for free," her attorney, Lawrence Biegel, explained.

Part of Black's government-sanctioned work was to study the feeding habits of whales. But the same government that licensed her to work with the animals now accuses her of breaking the law by feeding a couple of them, a charge that could land her in prison.

"I am humiliated," she said. "And it's hard to explain how you could get involved in something like this."

Don't Feed the Animals

During two research outings, Black said she saw orca (killer) whales feeding on a gray whale. Some parts of the dead whale were left over.

"She was in this area of the killing field where all of this is floating in the ocean," Biegel said.

Black moved pieces of the dead whale about eight feet and tied them next to her boat so she could videotape the killer whales underwater while they were eating those floating parts.

"It was their own prey. It's not like I went to the store and came out and put all this blubber out there," Black explained.

She thought what she recorded was so significant to whale research, she showed the video at international conferences.

"She didn't hide it from anybody. She used it for scientific purposes," Biegel said.

But then the government stepped in, charging her with a felony offense for feeding the whales, which authorities claim could make wildlife dependent on humans for food.

"It's such a ridiculous story," Black told CBN News. "It's just so insignificant."

"I didn't harm a whale," she continued. "I did nothing that I thought was wrong. Nothing."

'Where's the Tape?'

Fellow whale researcher Jim Scarff doesn't understand why Black's actions would be criminal.

"It makes no sense," he said.

"She had a permit from the very government that's now prosecuting her," Biegel added.

In addition to the feeding charge, she was also charged with lying to a federal officer about a videotape and altering that tape. In total, she faces up to 20 years in prison.

After excursions, Black's company offers passengers a video of their whale encounters. The tape is edited so customers don't have to watch less eventful parts of the trip when no whales are around.

But during one trip, the captain of Black's second vessel had the customers whistling at a friendly whale who kept popping up near them.

"That didn't sit well with Nancy. She didn't feel it was professional," Biegel said.

After confronting the captain about the whistling, his wife called federal authorities at the National Oceanic and Atmospheric Administration, to find out if whistling at whales was a problem.

To look into the case, authorities asked Black for video of the whistling. She obliged, giving them a copy of the tape like one she'd offer to customers.

What followed was a SWAT-like invasion of Black's home.

"Everybody's armed. They're all wearing body armor," Biegel told CBN News.

Authorities ransacked the place as one yelled over and over, "Where's the tape?"

Black said the ordeal has left her "terrified."

"Even today if I hear a car pull up in front of my house ... my stomach drops," she explained.

False Accusations?

Authorities wanted to see raw, unedited videotape - not the edited version she made for customers.

For that misunderstanding, Black was charged with lying to a federal agent. The government eventually saw the unedited footage and knows there's nothing on it for Black to have lied about.

But the accusation remains.

Not everyone, by the way, is on Black's side. Steph Dutton and his wife led whale tours in Monterey Bay, competing with Black.

"Nancy Black is as guilty as they come," Dutton told CBN News via telephone.

"I liken it to paying for a guided tour at the zoo and your guide has a baseball bat and beats the animals that you're watching," he said.

Meanwhile, Scarff said the scientific community is solidly behind her.

"And none of them are supportive at all of this criminal action," he claimed.

"If this case goes to trial we'll have more government witnesses testifying for us," Biegel added, "That is, people who work for NOAA who are going to say 'that's not feeding.'"

That may be the reason for threats against whale scientists that Scarff has heard about.

"The scientists I have talked to have all felt very threatened either by the loss of their jobs or the loss of their research permits if they communicate with Nancy," he explained.

CBN News asked the Justice Department prosecutor for reaction, but he declined to comment.

Collateral Damage

Black's case is just one of what many are calling growing "overcrminalization" in the United States. There are now some 300,000 government regulations, meaning more average Americans are violating laws they didn't know existed.

Then there are victims like Bob Wallace and Marjoie Ottenberg.

Decades ago, Wallace, an engineer, and Ottenberg, a chemist, came up with "Polar Pure" to provide clean drinking water during their hiking trips.

"There's enough iodine in here, roughly a quarter of an ounce, to treat maybe 500 gallons," Wallace, now 89, said while pointing to a small bottle of Polar Pure.

"The only alternative is to build a fire somehow and boil your water," Ottenberg added.

The invention became a big hit with climbers and hikers all over the world. But then the methamphetamine craze came along, and addicts started using iodine to make the illegal drugs.

The Drug Enforcement Agency decided to seriously crack down on products with iodine, including Polar Pure.

The agency wrote an 18-page regulation just to control Polar Pure. The federal rules demanded anyone selling the product pay the DEA almost $1,200 in fees. Sellers also had to keep a log of every buyer and track what happened to every bottle of Polar Pure sold.

"What I saw was a dynasty that had become very comfortable with over-regulating," said Neill Franklin, a retired narcotics officer who worked closely with the DEA.

Eventually, the DEA approached Polar Pure's iodine supplier. And that killed Wallace's business. 

"They told him he's not allowed to sell me any iodine," Wallace recalled.

One DEA spokeswoman told a local journalist Wallace and Ottenberg were "collateral damage" in the war on drugs.

"The work is no longer really about protecting society, about protecting people in society," Franklin said of the government. "It's become more harmful to people, people like Bob and Marjorie."

What's ironic is meth makers can go online and buy iodine for four times cheaper than the price of Polar Pure.

"Why even bother with me when they can get four times as much iodine at the same price?" Wallace asked.

He added that the DEA gave three drug manufacturers an exemption to keep using iodine, but wouldn't exempt Polar Pure.

Three a Day

The new book, Three Felonies a Day, sums up America's current state of criminalization.

"When I leave here, by the time I get back to my office in Silver Spring, I'm probably going to break two or three laws and not know it," Franklin said.

"The charges that were brought against [Nancy Black] involve up to $700,000 in fines," Scarff added.

Black said the case against her is always on her mind.

"I haven't been able to move on ... I'm just on hold," she said. "I've just spent months -- wasted -- dwelling on this and not able to work."

At this point, Black's case has dragged on six years.

Biegel said the government should be going after "real criminals and not scientists like Nancy Black."

"I've gone to the doctor," Black said. "[I'm] just depressed. It's just been overwhelming."

*Originally aired August 3, 2012. 

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Paul  Strand

Paul Strand

CBN News Washington Sr. Correspondent

As senior correspondent in CBN's Washington, D.C., bureau, Paul Strand has covered a variety of political and social issues, with an emphasis on defense, justice, and Congress.  Follow Paul on Twitter @PaulStrandCBN and "like" him at Facebook.com/PaulStrandCBN.