Nancy Black
Legal Defense Group

Nancy in her inflatable with orcas
 Nancy in her inflatable with orcas (not the days at issue)

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Latest News regarding the case (updated: April 18, 2014)

(and chronology of the case)

  • 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 service.

  • 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 probation.

    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 additional fine."

    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 work. "
    • 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 regulations.
    • 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 Collective
    • 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 University.
    • 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 Nancy.
  • 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.

  • 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 to comment..."

    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 in-rem 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 Official complaint.
    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 decide.

    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 http://www.justice.gov/iso/opa/resources/6152013423155017289978.pdf.

  • 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 hours!

  • 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.

  • October 16, Nonprofit Washington D.C. legal defense fund Cause of 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 Live".

  • 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 - First 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 act.

  • 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 Laglissogram@groups.facebook.com 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 The Economist entitled "Harsh Laws: Another 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 experience”.

  • 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 join up!

  • 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 again.

  • 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 wm@nancyblacklegaldefense.org