SAN FRANCISCO — The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of Melville's Ahab, has crippled Nancy Black's scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.
Black, 50, a marine biologist who also captains a whale watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration, or NOAA, to ask if the whistling constituted "harassment" of a marine mammal, which is an "environmental crime." NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a "material false statement" to federal investigators, which is a felony under the 1863 False Claims Act intended to punish suppliers defrauding the government during the Civil War.
A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition.
She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale. To facilitate photographing the killers' feeding habits, she cut a hole in one of the floating slabs of blubber, and through the hole attached a rope to stabilize the slab while a camera on a pole recorded the whales' underwater eating.
So she is charged with "feeding" killer whales who were already feeding on a gray whale they had killed. She could more plausibly be accused of "interfering" with the feeding.
Never mind. This pursuit of Black seems to have become a matter of institutional momentum, an agent-driven case. Perhaps NOAA, or the U.S. Justice Department's Environmental Crimes Section, has its version of Victor Hugo's obsessed Inspector Javert. In any event, some of the federal government's crime-busters seem to know little about whales — hence the "whistle-as-harassment" nonsense.
Six years ago, NOAA agents, who evidently consider the First Amendment a dispensable nuisance, told Black's scientific colleagues not to talk to her and to inform them if they were contacted by her or her lawyers. Since then she has not spoken with one of her best friends.
To finance her defense she has cashed out her life's savings, which otherwise might have purchased a bigger boat. The government probably has spent millions. It delivered an administrative subpoena to her accountant, although no charge against her has anything to do with finances.
In 1980, federal statutes specified 3,000 criminal offenses; by 2007, 4,450. They continue to multiply. Often, as in Black's case, they are untethered from the common law tradition of "mens rea," which holds that a crime must involve a criminal intent — a guilty mind. Legions of government lawyers inundate targets like Black with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive.
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