Latest News regarding the case (updated: January 27,
(and chronology of the case)
November 4, 2013. Nancy's attorneys submit a 38 page
letter plus approximately 100 pages of attachments listing objections to the
probation analyst's Draft Presentencing Investigative Report.
- January 13, 2014. U.S. District Court Judge Davila sentences
Nancy with a fine of $12,500 and two years of probation. In addition, as part of
the negotiated plea agreement, Nancy had agreed to serve 300 hours of community
- January 8, 2014 Nancy's attorneys file a Response to
DOJ's Sentencing Memorandum. The memo also includes additional letters of
support for Nancy from Lori Mazzuca (Pacific Area Marine Protected Species
Program Manager for United States Coast Guard more than 25 years of marine
mammal field research experience across the globe), Lorna Claerbout, Barton
Selby (local expert on whale-watching), Mary Jane Schramm (veteran fo 30 years
of marine conservation work),
- December 30, 2013 Nancy's attorneys file their Sentencing
Memorandum to the judge recommending that the judge issue a sentence of a $500
fine and two years probation. (In Nancy's plea agreement, she had already agreed
to perform 300 hours of community service. The Department of Justice
concurrently filed a Sentencing Memorandum urging a fine of $25,000 and 3 years
Nancy's attorneys conclude by stating: "Ms. Black already has been punished far
more severely than numerous for-profit dolphin-feeding operations and other
violators whose actions were far more egregious than hers. She has paid out over
$100,000 in legal fees, she has been prevented from applying for and obtaining
research permits for more than seven years, she has had her reputation in the
scientific community severely tarnished, NOAA OLE has instructed/intimidated her
friends and colleagues to avoid all contact with her, for over seven years she
has been under the strain and anxiety of a federal criminal investigation and
prosecution, and she now has suffered a criminal conviction and she will be
placed on federal probation, with the additional requirement that she complete
300 hours of community service. It would be fundamentally unfair and
antithetical to the principles and policies underlying § 3553(a) and the
Guidelines to punish Ms. Black even more severely by assessing a significant
Attached to the filing were letters of support from:
- a remarkable joint letter from four of the most senior and most respected
whale researchers for NOAA -- Doug DeMaster, Bob Brownell,
Phil Clapham, and Paul Wade -- saying they are "not concordant with with the
official position of NOAA or the National Marine Fisheries Service for which we
- The American Cetacean Society, the oldest and most respected
whale conservation in the U.S. for the last half century
- Sue Flood, an Associate Producer for the BBC Natural History
Unit for the filming of the Oscar-winning "The Blue Planet" who wrote in
part: "Nancy was an excellent help and advisor during c;>ur filming trips. She
had a hunch that killer whales may be feeding on the tongues of the whales that
they were killing. With her help and advice the BBC crew was able to use a pole
camera to obtain underwater images to prove that this was indeed the case - the
first time that this was ever filmed....I want to be very clear that her
motivation was not financial In any way. Indeed, she turned down the offer of
payment to help us and told me that was more than satisfied with being able to
spend a lot of time at sea observing killer whale behaviour,
- Alisa Schulman-Janiger, killer whale expert and Principal Investigator of
the American Cetacean Society’s Gray Whale Census and Behavior Project"
- Richard Ternullo, the most experienced whale-watching skipper in Monterey Bay
- William Rossiter, president of Cetacean Society International.
- Ken Balcomb, president of the Center for Whale
Research, Inc, and probably the most respected killer whale researcher
in the world. Ken writes in part, "she is THE acknowledged expert on killer
whales inhabiting the central California coastal ecosystem...it is safe to say
that literally nothing of scientific value would be known of the killer whales
of Monterey Bay if it were not for Nancy's years of dedication and sharing of
her information with colleagues."
- Pieter A. Folkens, Team Leader, W.E.T. (Whale Entanglement
Team). Co-founding Director, Alaska Whale Foundation
- James Scarff, lawyer & whale law expert, who argues that Nancy's actions was not
"feeding" as that term was intended in the Marine Mammal Protection Act
- Thomas Jefferson, a marine mammal biologist who has been
studying whales and dolphins for 30 years and author or co-author of over 110
scientific papers and several books on these animals.
- Robin W. Baird, Ph.D., Research Biologist, Cascadia Research
- John K.B. Ford, PhD, Head, Cetacean Research Program & Adjunct
Professor, Department of Zoology, University of British Columbia
- Vladimir Dinets, Ph.D Research Associate, Louisiana State
- John Calambokidis, Research Biologist and Founder of Cascadia
Research, Adjunct Faculty, Evergreen State College
- Guy W. Oliver, Ph.D. formwer Director of Research for the Oceanic Society and
long-time freind of Nancy.
- letters from a half dozen friends attesting to the stress this case has put on
June 16 - Cousteau story gets picked up by the media. The story first gets
reported in the
Monterey Herald and Santa Cruz Sentinel. NOAA
has been very public about its investigation and prosecution of Nancy and even
issued a press release when her plea agreement was submitted to the Court. NOAA
has been remarkably silent about its failure to bring any criminal or even civil
charges against any individual in Cousteau's organization for very similar acts,
but done for commercial profit. When approached by the reporter about why these
similar cases were handled so differently, "The U.S. Attorney's Office declined
In 2005, Cousteau had
"lawyered up" with Lee Stein of Phoenix, Arizona. Neither
Cousteau, the Ocean Futures Society, nor counsel Stein provided any information
or assistance to Nancy during her entire ordeal since 2005. Monterey area
Congressman Sam Farr
confirmed Cousteau had asked him to intervene on his behalf.
June 14 Federal marshals seize Cousteau's Ocean Future
Society boat as the Ocean Future Society voluntarily surrenders the boat.
June 12 The U.S. Department of Justice files an
complaint in District Court in San Jose (before the same Judge Davila
hearing Nancy's case) for forfeiture against the "25 Foot 10 Inch Acrilic-built Vessel
Manfish.... " that just happens to be owned by Jean-Michel Cousteau's Ocean
Futures Society. No person is named in the complaint which is based on the
allegation that the boat was used in illegal activities in violation of the
Marine Mammal Protection Act.
More specifically, the complaint alleges that on the same day, April 25, 2004,
Cousteau's boat was in Monterey Bay also filming orcas feeding on the same gray
whale carcass at the same time Nancy was from her inflatable. The complaint
states that Cousteau’s crew on board the forfeited boat Manfish “collected a
large chunk of gray whale blubber that was floating in the Sanctuary and used it
to attract orcas closer to the Manfish in order to facilitate filming of the
animals. Actions on board the Manfish included handling, towing, cutting,
tying-off, and offering blubber to orcas.” DOJ's
Monterey Herald story
April 23 Today in District Court in San Jose Nancy submitted
a negotiated plea of guilty to a single misdemeanor count of feeding orcas in
violation of the Marine Mammal Protection Act as part of a agreement
negotiated with the Department of Justice (DOJ). DOJ agreed to drop both felony
charges, to drop the second misdemeanor charge of attempted feeding of orcas,
and to drop its demand that Nancy forfeit her research boat, the Black Dog.
Nancy will not have to serve any jail time. She will have to pay a fine
determined by Judge Davila. The fine could be up to $100,000, but is most likely
to be much less. Nancy will have a probation period of between 1-5 years to be
determined by Judge Davila. During the probation period, Nancy will have to
perform 300 hours of community service.
Nancy and her attorneys believe, and were prepared to argue that Nancy's actions
in putting a rope through the floating blubber from a dead gray whale calf did
not constitute "feeding" in violation of the MMPA. However, proceeding to trial
on this issue would involve both large emotional and financial costs, but also
involve the felony charges, and no one can predict what a jury or judge might
Given where NOAA/DOJ had started from, this may the best offer Nancy was likely
to see. Nancy chose to put this whole sad and crazy episode behind her.
Nancy's attorneys and Nancy request that ALL of her friends and supporters
attend the August 6 sentencing hearing in San Jose. They say this will help
Nancy considerably. The
plea agreement itself can be found on-line at
April 15 Settlement conference in San Francisco before
Magistrate Judge the Honorable Laurel Beeler. (This
non-public conference ifor the parties and their attorneys only lasted 9 1/2
February 26 The Department of Justice's and Nancy's attorneys
filed a joint notice that they had agreed to the selection of the
Honorable Laurel Beeler as the Magistrate Judge for Referral of this case
for settlement purposes.
February 25, 2013 U.S. District Court status conference. Judge
Davila ruled that the attorneys were to "submit a notice of selection of
magistrate judge for referral to a settlement conference". and The settlement
conference is to be completed before April 15. (No information about what a
settlement would consist of)
December 13 - status hearing before Judge Davila
in San Jose.
Only action setting date for next status conference.
November 19 - status hearing before Judge Davila
in San Jose.
Only action setting date for next status conference.
Nonprofit Washington D.C. legal defense fund
Action officially joins Nancy's defense team! Cause of Action
files notices with the U.S. District Court in San Jose announcing that it is
joining as co-counsel for Nancy. Cause of Action's involvement will bring both
substantial legal and financial resources to help Nancy's defense, and hopefully
will put additional pressure on the Department of Justice to resolve this case
in a more favorably way for Nancy.
Cause of Action describes itself as "a nonprofit, nonpartisan organization that
uses investigative, legal, and communications tools to educate the public on how
government accountability and transparency protects taxpayer interests and
economic opportunity....Cause of Action investigates and exposes federal governm
ent corruption, waste, cronyism, and fraud. These investigations fuel strategic
legal efforts to attack federal government overreach and unaccountability.
September 13, Daniel Dew, a Visiting Legal Fellow with The Heritage
Foundation publishes part 2 of his blog about Nancy's case -
Government Agencies Using Criminal Law for Self-Promotion.
September 5, Daniel Dew, a Visiting Legal Fellow with The
Heritage Foundation publishes an aticle about Nancy's case in his blog, part of
a series on overcriminalization -
Save the (Whales) NOAA.
August 29, Nancy's mother, Rose Ann Black dies after a long
illness. Very large amounts of Nancy's time and energy over the last several
years have been devoted to caring for her mother. Nancy's father, a WWII veteran
and surivivor to the attack on Pearl Harbor died several years ago.
Nancy requests that persons wishing to honor her parents make a donation to the
Monterey, CA SPCA.
August 20, status conference before District Judge Edward J. Davila,
at the U.S. Courthouse, 280 South 1st Street, San Jose, CA.
August 20, status conference before District Judge Edward J. Davila,
at the U.S. Courthouse, 280 South 1st Street, San Jose, CA. Nancy has been excused from attending personally
because she is needed in Monterey for the whale-watching business and to take care
of her mother.
August 7 - "The 700 Club with Pat Robertson"
featured an lengthy story about Nancy as case as part of a series on "overcriminalization"
in America. The video and a transcript of that report is available on-line:
Overcriminalized Whale-Watcher Faces Prison Time.
The part about Nancy occurs in the beginning, and again at the end of the story.
July 28 - Nancy's case is featured in an article by
columnist George Will in the Washington Post titled "Blowing
the Whistle on the Federal Leviathan".
May 14 - status conference before Davila, San Jose, CA. Date set for next status conferece.
May 14 - Killer whale attack on
gray whale calf with humpbacks filmed from Nancy's boat is shown on National
Geographic TV's "24/7
May 10 - Killer whale attack on
gray whale calf with humpbacks filmed from Nancy's boat is shown on BBC's
Planet Earth Live!
May 3 - During one of the annual
surveys for killer whales that Nancy and Alisa Schulman-Janiger have been
conductring for years, they find a pod of killer whales attacking a gray whale
mother and calf - while up to
seven humpback whales
attempt to interfere with the attack!
April - After more than five years
of holding onto over 30 hours of research videos on orca behavior NOAA seized
from Nancy in its armed search of her house in November 2006, the DOJ provides
Nancy's attorney copies of the videos pursuant to its obligations during
discovery. Since most of these videos have nothing whatsoever to do with the
charges, one can surmise NOAA held on to them for so long just to pressure Nancy
into pleading guilty. Finally,Nancy and her scientific collaborators can review
these videos she worked so hard to film.
April 24 -
letter sent to Secretary of Commerce John E. Bryson recommending
strongly that he ask the Department of Justice to drop the charges against
Nancy, describing how if it goes forward this case will greatly damage NOAA's
credibility and political capital, making it even harder for it to protect
marine mammals and the marine environment.
April 10 - Article about Nancy's case, "For Feds,
'Lying' Is a Handy Charge" appears on the front page of
the Wall Street Journal (pdf versions --
larger print, no advertising or
as it appeared on web page). The article cites Nancy's case as an
extreme and ridiculous example of a federal agency and prosecutor grossly abusing
is discretion by bringing felony charges when there has been no underlying criminal
March 19 - 2d appearance before District Judge Edward J. Davila.
Nancy's attorney Mark Vermeulen informed Judge Davila that the defense
has received from DOJ/NOAA voluminous records associated with the investigation,
including about 60 DVDs, several computer hard drives, bank records,
financial records, etc. (This seems to be a ploy by DOJ to bury Nancy's
attorneys in data, most of which is irrelevant to the charges against
Nancy.) Vermeulen said it is going to take some time for the defense
to go through all this material, and asked that the case be continued
until a further status report appearance on: May 14.
The Department of Justice is refusing to identify to the defense what
portions of the voluminous records turned over DOJ plans to use at trial.
90+% of this information is almost certainly irrelevant to DOJ's case,
but unless DOJ informs Nancy's attorney of what small portion it considers
relevant, then Nancy's attorneys have to review it all.
Vermeulen also noted to the judge that DOJ/NOAA are trying to impede
the defense's access to potential witnesses and information, and unless
an agreement is reached to correct this, the defense may request a ruling
from the judge at a later date on this issue.
Under federal criminal law, the government has the positive obligation
to seek out and provide all information in its possession that is favorable
to the defendant. ("Brady material"). Vermeulen informed the judge that
discussions with DOJ continue, but the defense believes that DOJ has
not yet met its obligations in this regard.
February 15 - This website goes active!
February 14 - "Nancy Black Client Trust Account"
opened to accept donations from the public to help defray Nancy's huge
legal fees to defend herself during this process that has dragged on
for six years.
February 13 - Appearance before District
Judge Edward Davila in San Jose in Law & Motion calendar.
First appearance before the judge that would hear the case if it goes
to trial. There was a brief discussion of the status of discovery (nothing
provided yet by NOAA to the defense).
February 8 - Nancy's supporters organize a private
group on Facebook to plan and organize support activities. If you would
be interested in joining send an e-mail to
Work begins on several projects including:.
- a legal defense fund to help defray Nancy's huge legal expenses
- this website
February 2 - Nancy's arraignment in
U.S. District Court for the Northern District of California (San Jose).
Nancy pleads "not guilty" to all charges. She is released
on bail after submitting $50,000 signature bond and compelled to surrender
her passport and undergo drug testing (routine). About 20 of Nancy's
supporters from all over the Bay Area
January 14 - An OpEd appears in
Economist entitled "Harsh
One in the Net" (pdf
version) arguing that charging Nancy for feeding whales was
an abuse of federal power. "The question should be... whether charges
are reasonable when they run “counter to all human instinct and
January 7 - Nancy's supporters waste little time
in setting up the first on-line support site on the web: "Help
Marine Biologist Nancy Black Fight Charges". Please
January 4, 2012. Following secret grand jury hearings,
the U.S. District Court issues an indictment charging
Nancy with two felony counts and two misdemeanor charges.
date? As reported in the WSJ: "Ms. Black says she was never asked about
the completeness of the video and if she had known the officials wanted an
unedited copy, she would have provided one. Her lawyer, Mr. Biegel, says
authorities eventually obtained the entire video from him after Ms. Black
informed officials that, even after removing records from her home, they didn't
have the complete video. He notes that despite years of investigation, the
government didn't find evidence to charge Ms. Black with wrongdoing during that
2005 whale-watching trip."
November 2006, More than a dozen armed federal and state
enforcement officers in bulletproof vests agents entered Nancy's house and
her business office pursuant to a search warrant and took away her
files, photos and computer. Nancy says, "It was the most traumatic thing that
ever happened to me."
The NOAA agents seized about 30 hours of video Nancy had taken as part of her
research of killer whale behavior in the wild, including unique footage of
killer whale attacks on gray whale calves and underwater behavior. NOAA kept the
all copies of these videos, most of which are completely irrelevant to any of
the charges for over five years, depriving Nancy and her co-researchers from
being able to study the videos as part of their scientific research.
October 2005 - December 2011 - During this six
year period NOAA disrupts numerous scientific efforts in the Monterey
Bay area and elsewhere and tries to compel Nancy to plead to a crimes
she did not commit. Nancy refuses to plead, insisting on her innocence.
October 24, 2005 - the DOJ indictment claims that
Nancy "knowingly and willingly made a false statement" to a NOAA agent
about the videotape of the humpback whale-watching trip with the intent
to deceive NOAA .
October 12-24, 2005 - the DOJ indictment claims that
during this period Nancy "knowingly altered" a videotape of the humpback
whale-watching trip on October 12 with the intent to "impede,
obstruct, and influence a [NOAA] investigation.
October 12, 2005 - Nancy's company has two whale-watching
boats, one of which she is captaining, out in Monterey Bay watching humpback
whales. A "friendly" humpback approached the other whale-watching boat where the
captain tells the passengers
As reported in the WSJ, "The captain began whistling, hoping the noise might
keep the creature from leaving, according to Ms. Black. A crewman on her other
boat, which Ms. Black was captaining nearby, also urged passengers to make
noise, she says. (Neither the captain nor the crewman faces charges.) The Marine
Mammal Protection Act of 1972 outlaws "harassment" of whales that could disrupt
their behavioral patterns or injure them. Ms. Black says she doesn't believe the
whistling, or the ships' closeness to the whales, violated the rules,
particularly since the creature had approached on its own. Ms. Black says she
considered the whistling "unprofessional" and told her employees not to do it
April 11, 2005 - the DOJ indictment claims that Nancy
fed and attempted to feed orcas on this date. This event is the basis
for DOJ's second misdemeanor charge.
April 25, 2004 - The DOJ indictment claims that Nancy
fed and attempted to feed orcas on this date. This event is the basis
for DOJ's first misdemeanor charge
Disclaimer: This website is entirely the work of Nancy's friends and volunteers,
and does not represent the official position of Nancy or her attorneys on any issue. If you have any
corrections, additions or questions, please e-mail us at