Annals of overcriminalization: whale watching biologist

by Walter Olson on January 27, 2012

The 1972 Marine Mammal Protection Act bans feeding protected dolphins, seals and whales. A grand jury has now indicted licensed marine biologist Nancy Black, who sought to record the behavior of killer whales by rigging attachments to some killed prey that the predators were in the process of eating. Black’s attorney says she also faces a charge of lying to federal investigators because when asked to turn over evidence she gave them footage of the incident that she had already edited for reasons unrelated to the investigation. [The Economist]

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Advice Goddess Blog
01.30.12 at 1:57 am

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1 Andrew_M_Garland 01.27.12 at 8:01 pm

I’m sad for my country, where a panel of citizens would indict that scientist. They were supposed to the the citizen’s voice between the government and the accused. They decided to affirm “Yeah, she broke the rule. Do what you want to her.”

2 Richard Nieporent 01.27.12 at 8:06 pm

She is lucky that they are not asking for the death penalty. When it comes to the environment there is no longer a presumption of innocence. The government has the ability to impose draconian penalties without having to prove that the individual broke the law. Sackett v EPA that was just argued before the Supreme Court is an example of such an unconstitutional action by the EPA. When the EPA believes that a landowner is engaged in a violation of environmental laws, it may issue an administrative compliance order requiring the landowner to take certain actions and seek judicial enforcement of the order if the landowner does not comply. The landowner is prevented from challenging the administrative compliance order in court before the EPA seeks judicial enforcement. In plain English that means that you could be liable for hundreds of thousands of dollars of fines in you don’t comply with EPA’s demands.

3 CT_Yankee 01.27.12 at 9:26 pm

So, as always, refuse to respond to any questions ever. Of course, the Feds will try to imply it means guilt when it really means the Feds judgement can not be trusted.

4 CJohn 01.28.12 at 3:38 am

6-7 years from the time of incident until the indictment? Weird. Of course, the three or so articles I read while looking for the indictment all said she “faces up to 20 years in prison.” Uh, no. That may be the statutory max; but, even in the very worst case scenario (no plea; a pile of enhancements) she’s looking at far less (< 60 mos, assuming no criminal history).

5 Flemur 01.28.12 at 11:41 am

At least she didn’t have a piece of rosewood that was a fraction of an inch too thick.

licensed marine biologist

When I read that I thought “since when are biologists licensed?”; a quick google search seems to show that there is no such thing in the US.

6 Hugo S. Cunningham 01.28.12 at 2:15 pm

@flemur
Maybe what the reporter meant was that the defendant had a degree in marine biology.

Other remarks:
There were one or two interesting skeptical comments on the Economist web page, eg
Although the defendant had a degree in marine biology, wasn’t she making her living as a tour operator?
As a professional with a degree in the field, was she really likely to be ignorant of the law?
The underlying accusation seems to be that she was feeding whales in order for her paying customers to get a better view. Feeding of wildlife is sometimes outlawed for various reasons.
Twenty years sure sounds excessive, but is that really what the prosecution is likely to ask for? (But the government has no one to blame but themselves if draconian possible penalties are poor public relations.)

7 ras 01.29.12 at 4:30 pm

I suspect the reporter meant that she was a licensed tour operator who was also a marine biologist. Would that journalism schools would teach genuine journalism skills these days, such as how to write clearly, sigh.

And a pox on the misanthropes who would torment this woman as they do.

8 Don 01.30.12 at 2:09 pm

My guess is that she operated the tour business to pay for her research. Not all biologists are supported by grants.

9 J.T. Wenting 01.31.12 at 4:47 am

“Although the defendant had a degree in marine biology, wasn’t she making her living as a tour operator?”

irrelevant. It’s the act that counts, not the occupation of the actor.

“As a professional with a degree in the field, was she really likely to be ignorant of the law?”

Laws change so frequently and seemingly at random, quite likely she was ignorant of at least details.

“The underlying accusation seems to be that she was feeding whales in order for her paying customers to get a better view. Feeding of wildlife is sometimes outlawed for various reasons.”

But the story as listed doesn’t mention that. It mentions her attaching sensors of some sort to items the whales were consuming anyway, so not providing food but tampering with it.
I interpreted it as her attaching sensor packages to e.g. a whale carcass in the hope those would be ingested by animals feeding on the carcass in order to track the animals and/or gather data about their digestive systems.
The charge then comes down to a ludicrous assumption that the sensors themselves are the “illegal feeding of wildlife”.

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