There it is, in sunbathed living color. Exhibit A.

Monterey Bay marine biologist Nancy Black hangs over the side of her inflatable research dinghy with one hand gripping a rope strung precariously through a piece of gray whale blubber.

It is a photograph that has Black, owner of Monterey Bay Whale Watch, in a lot of hot water. Black, a prominent yet controversial figure, contends she was securing a piece of a whale that had been killed by orcas so she could film them for research purposes.

Federal prosecutors say she was chumming for killer whales and a great piece of video, or "money shot."

The Monterey resident made her first appearance in U.S. District Court in San Jose on Thursday, pleading not guilty to two counts of violating the Marine Mammal Protection Act by feeding or attempting to feed the killer whales. She was also arraigned on two counts alleging she altered a video of a 2005 encounter with a humpback whale and lied about it to an investigator for the National Oceanic and Atmospheric Administration.

While the feeding charges have received more attention, the latter two are much more serious felonies that carry combined maximum sentences of 25 years in prison and $500,000 in fines. Federal prosecutors are also seeking the forfeiture of her rigid-hulled inflatable research vessel.

The charges date back to 2004 and 2005. The U.S. Attorney General's Office and NOAA declined comment on the indictment and the reasons for its delay.

Cousteau connection

The government's six-year investigation also targeted the Jean-Michel Cousteau Ocean Futures organization, which filmed the blubber exchange between Black and the killer whales for its PBS series, "Ocean Adventures." Cousteau is the son of famed oceanographer Jacques Cousteau.
An Internet search for Black and Cousteau reveals the incriminating photo and the connection between the marine biologists. The PBS website credits the photo to Matt Ferraro, a member of Cousteau's "X-Team." Black is also listed as a team member.

Additionally, renowned Monterey Bay marine photographer Chuck Davis, who served as director of photography on the 2006 episode "The Gray Whale Obstacle Course," confirmed, "We were filming that day." Davis said federal authorities have told him and others involved in the shoot not to talk about it.

In an email to The Herald, Ferraro said the rights for the photograph are not available and therefore he could not offer it to the newspaper.

It is unknown whether authorities are still considering charging anyone in the organization, but Rep. Sam Farr, D-Carmel, said the younger Cousteau asked him to intervene in the investigation. The congressman said last week the investigation involved the Cousteau team's conduct during filming of the orca attack, but he had no other details.

Cousteau did not respond to requests for comment. Black's attorney, Larry Biegel, said Cousteau has retained Phoenix attorney Lee Stein.
Stein's only response to an interview request was to say Cousteau is not Black's co-defendant.

Getting footage

The case spotlights troublesome gray areas that have developed in the symbiotic relationship between marine scientists who want the public educated and film crews who are making millions for television channels like National Geographic and Discovery. As one insider said, the public used to be thrilled with film of a killer whale breaching. Now it wants a front-row seat to thrashing, blood and the fear in a gray whale's eyes.

Getting that "money shot" sometimes crosses the line. In 2009, marine scientist Michael Domeier came under fire for hooking great white sharks off the Farallon Islands and bringing them on board for tagging. The research technique, which had been approved by the National Marine Fisheries Service, made for great TV footage until a shark swallowed the whale bait and Domeier's crew had to reach through its gills to cut the hook, leaving part of it in the injured shark.

In Black's case, she was trying to film the aftermath of an orca attack on a baby gray whale. According to the Justice Department, she enabled the feeding, potentially changing the orca's natural behavior.
Sitting in her rigid-hulled inflatable research vessel in choppy water, she poked a line through the thin, torn edge of a piece of blubber to keep it floating nearby. With a video camera on the end of a pole, she captured the underwater feeding when an orca snatched the food and shared it with others in the pod.

Black, who earned her master's degree at Moss Landing Marine Laboratory, told The Herald it was the first time she used the pole camera and the technique. It was also the first time any scientist captured orcas cooperating in their underwater feeding. The footage was a hit when she showed it later at a marine conference in Norway. But she says she never profited from it.

Black also denied that she had anything to do with the Cousteau mission that day. She remembered his team was on the water and that she went on board for an interview. She was not under contract as a team member, she said, was not paid and did not know anyone had taken a damning photo of her that was posted on the PBS website.

Charges harsh, some say

Talk of Black's indictment is swirling through the scientific community. Most refuse to speak openly because they are affiliated with NOAA and the National Marine Fisheries Service, which investigated Black. Privately, they say the charges are overkill and will blow a dedicated conservationist out of the water. They question the exorbitant expenditure of resources on a six-year investigation over what seems a technical violation during a noble exercise.

Black was a co-investigator for NOAA's National Marine Mammal Laboratory in Seattle, studying the feeding habits of killer whales. It was her discovery in 2000 that orcas from the Pacific Northwest were migrating to Monterey Bay, likely because of declines in northern Chinook salmon, that led the government to declare them protected and begin the studies.

That research has stopped since armed agents came into her house with a search warrant in 2006, seizing computers and video footage. Black said it would be futile to try to renew her permit.
Government ties did not inhibit Ken Balcomb, executive director of the independent Center for Whale Research in Friday Harbor, Wash. Balcomb said he has seen government scientists use the same technique Black is accused of and "would probably do it myself."

"I think it's a gross miscarriage of justice," he said. "It's a little Gestapo for me."

Phil Clapham, leader of the cetacean program at the National Marine Mammal Laboratory, said Black is a dedicated, curious scientist.

"Nancy Black has been a valued researcher who has contributed valuable data and samples to our research program," he said.

Conduct on the bay

But Black is not admired or defended by all on Monterey Bay. Some say her aggressive practices during commercial whale-watching trips are what attracted law enforcement to begin with. They complain of Black cutting off other captains and speeding up on whales to give her passengers an up-close-and-personal experience.

Though Black is allowed to closely approach whales while doing research, she is prohibited to do so while on a commercial cruise.

It was an investigation into reports of that conduct that led to the more serious charges against her. NOAA investigator Roy Torres received reports that Black was harassing a humpback by approaching too closely.

Torres asked for video of that day's cruise. Federal prosecutors allege Black said the video was the original when in fact it had been edited. Black said the video was edited to remove "dead water shots" for her passengers, who can buy the video. She notes that she was never charged with harassing the whale, nor with making money from research.

Two former competitors, Heidi Tiura and Steph Dutton, former owners of Sanctuary Cruises, have been outspoken critics of Black.

Dutton recently said Black's unethical ocean conduct lured passengers, and financially lucrative film crews, away from his business because they felt Black would take them closer to the whales.
When passengers did opt for Sanctuary Cruises, Dutton said, they "would watch Nancy's boats crowd the whales, violating our right-of-way and that of the whales to get better looks. ... Many would ask us why we were holding back. In their eyes, it lessened our credibility."

In 2004, a month after the alleged blubber incident, Tiura wrote a letter to Julie Packard at the Monterey Bay Aquarium that indicated Black was already under investigation by the National Marine Fisheries Service for conduct by her and her operators.
"She admits one operator is a problem and yet he is still there and doing the same boneheaded stuff such as racing through a pod of orcas at the surface at high speed," Tiura wrote.

Chilling effect

Dorris Welch, a UC Santa Cruz marine biologist who now co-owns Sanctuary Cruises, said she has never witnessed Black act unethically but questioned the need to "chum" for killer whales.
Her partner, Mike Sack, said whale watch operators on the bay, always careful, are being particularly cautious around marine mammals since Black's indictment.

Some hoped the indictment would have a chilling effect on nature TV production crews as well.
"It's not so much what the public wants, it's what they're being spoon-fed," said one insider who spoke on the condition of anonymity. "It's what the production companies, National Geographic and the Discovery Channel are demanding so they can sell products to their advertisers.

"It's time for everybody to have the stones to say, 'No. I will not be a part of this.'"

Virginia Hennessey can be reached at 753-6751 or

The charges
· Two counts of violating the Marine Mammal Protection Act by feeding or attempting to feed killer whales.
· Two counts alleging she altered a video of a 2005 encounter with a humpback whale and lied about it to an investigator for the National Atmospheric and Oceanic Administration.