Monday, February 6, 2012

Marine biologist charged with interfering with whale feeding

The Monterey Herald reports on charges against a marine biologist:

In her first interview since being indicted on federal charges, prominent Monterey Bay marine biologist Nancy Black adamantly denied feeding killer whales she was studying. Black said she was conducting important research for the same governmental agency that sought her prosecution. That research is now being hampered, she said, causing real damage to the orcas.

"I was right at the level of getting very important data about toxic chemicals in killer whales," she said. "They have hindered research on killer whales because of this."

The irony is further driven home, Black said, by the fact that it was her discovery that killer whales were migrating from the Pacific Northwest to Monterey Bay, likely because of a decline in northern chinook salmon, that led the National Oceanic and Atmospheric Administration to begin its study of the animal.

Black, co-owner of Monterey Bay Whale Watch, said her separate research work has all but stopped since 2006, when 15 armed agents and police stormed into her house with a search warrant. The impact then and now has been devastating, she said.

"This is my whole life. This is not just some side thing that I do," an emotional Black said late Tuesday at her attorney's office in Monterey. "The stress has been tremendous for me. I've been to the doctor several times and the money is (costly). But I just can't plead to something I didn't do."

Black is charged with violating the Marine Mammal Protection Act by feeding

killer whales on two occasions, in 2004 and 2005. Black said she merely positioned a piece of blubber from a dead gray whale calf closer to her research boat so she could film the orcas that killed it and were feeding.

"I am steadfast that I wasn't feeding the whales," she said.

The grand jury, impaneled by the U.S. Attorney General's Office, indicted her on two counts alleging she doctored a video of an encounter with a humpback whale during a commercial cruise in 2004, then lied about it.

Black notes that she is not charged with harassing any of the whales, something her permit allowed her to do. She said the video she provided to a NOAA investigator was edited for her passengers, who can buy it for subsequent viewing, and she denies she represented it as anything else.

Federal investigators and prosecutors have declined comment outside of the four-page indictment.
Black will be arraigned on the charges Thursday in U.S. District Court in San Jose. Her attorney, Larry Biegel, said he will plead not guilty and ask for her release without bail, noting she has remained available to the government since it began its investigation six years ago.

At the time, Black was allowed as a "co-investigator" to conduct biopsies of killer whales and observe their feeding patterns under the umbrella permit of the National Marine Mammal Laboratory in Seattle, a branch of NOAA, whose investigator later led the inquiry into Black. Biegel, who is representing Black with San Francisco attorney Mark Vermeulen, said they have no idea what prompted the investigation. Black said she thinks the agency believed she was selling video or photographs taken from her rigid-hulled inflatable research vessel.

It is illegal to profit from government-funded research. Black, whose work has been featured on National Geographic Channel and helped win an Emmy for BBC's "Blue Planet," said she has only been paid once for her ocean footage, and that was taken from her commercial whale-watching boat.

The only thing she did with footage of the conduct she is charged with was show it to a marine conference in Norway, she said. It was the first time orca feeding, most of which happens under water, had been captured on video.

"It's not like she was hiding it," Biegel said.

It was 2004, during a record-setting spring season of orca attacks on gray whales in Monterey Bay. The region is one of the best for orca research because the shore-hugging grays have to cross the deep Monterey Canyon, exposing them to their predators.

Black said she was trying out a pole camera for the first time. The tool allowed her to plunge a small camera into the murky water and display the video on a monitor on board.

A mother gray whale had lost her battle to protect her calf and orcas were shredding its blubber in the water. A piece floated near her boat in choppy waters. To keep it nearby, she said, she threaded a line through the thin blubber on the torn edge and left it floating. One end of the line remained in the boat.

A killer whale lunged up from beneath, took the blubber and disappeared below, where the camera captured it and other whales "sharing" their meal. Black said she tried the technique again in 2005, though no whale took the blubber.

Among its provisions, the 1972 Marine Mammal Protection Act prohibits interfering with feeding in a way that would alter an animal's normal behavior.

"I've seen this hundreds of times over 20 years," said Black. "I know what I did didn't alter their behavior at all. Feeding whales, to me, is that I went to Safeway and bought a whole bunch of blubber and started throwing it out there."

She bitterly recalled attending a November marine conference in Florida where a NOAA investigator displayed a poster of images captured from YouTube of people feeding dolphins. The investigator said she contacted the creators and told them to take down their posts.

"They got warnings," she said. "I feel I've done something horrible to the whales the way I've been treated. I'm not a criminal."

Virginia Hennessey can be reached at 753-6751 or

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