Whistle at a Whale, Spend Seven Years Fighting off the Feds

Here is just an incredible story of pointless federal prosecutorial overreach, noted here first by Jacob Sullum and re-told over the weekend by an outraged George Will:

[O]ur unhinged government, with an obsession like that of Melville's Ahab, has crippled Nancy Black's scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted "harassment" of a marine mammal, which is an "environmental crime." NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a "material false statement" to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. [...]

She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale.

To facilitate photographing the killers' feeding habits, she cut a hole in one of the floating slabs of blubber and, through the hole, attached a rope to stabilize the slab while a camera on a pole recorded the whales' underwater eating.

So she is charged with "feeding" killer whales that were already feeding on a gray whale they had killed.

Six years ago, NOAA agents, who evidently consider the First Amendment a dispensable nuisance, told Black’s scientific colleagues not to talk to her and to inform them if they were contacted by her or her lawyers. Since then she has not spoken with one of her best friends.

To finance her defense she has cashed out her life’s savings[.]

It goes on from there, with Will name-checking Reason contributor Harvey Silverglate's "invaluable" book Three Felonies A Day: How the Feds Target the Innocent, and concluding on this optimistic note:

The more Americans learn about their government's abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash.

Reason on George Will here, on Three Felonies a Day here.

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  • Jordan||

    Holy hell, that is unbelievable. Is there any government agency that does not have some keystone cop enforcement arm?

  • VG Zaytsev||

    Clearly NOAA needs their own SWAT team to deal with dangerous criminals like Nancy Black.

  • fried wylie||

    or at the very least, to defend themselves from KILLER WHALES11!11oneoneone

  • Voros McCracken||

    This really does sound like an April Fools joke.

    Who did this woman piss off?

  • Mike M.||

    Can there be any doubt how horrible the government has become when even George Will is calling it unhinged? He is the epitome of politeness and respectability.

  • Lost_In_Translation||

    good thing she doesn't play baseball. They'd try her atleast 3 times then.

  • ||


    How badly I wish I could yell that in real life and not get fired right now. Anyone who thinks the current government is worthwhile needs to be stoned.

  • Matrix||

    I think you would have to be stoned to think it is worthwhile. But then, they would be betraying their own actions because it is illegal to possess/use substances that get you stoned.

  • SIV||

    Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted "harassment" of a marine mammal, which is an "environmental crime."

    Hell, I'd say the whistling constitutes free speech under the 1st Amendment.Couldn't the whale counter the offensive whistling with a call of its' own? Or does this come under the "hostile work environment" exception in which case it should be a civil matter.

  • cw||

    Seeing as there are people who believe we should recognize that animals have natural rights just like humans, I wouldn't be surprised they also think the animals could "sue" humans for "damages."

    On the flip side, an animal would always be found incompetent to stand trial. It's a win-win!

  • Tonio||

    That's a clumsy misrepresentation of the views of the mainstream animal welfare community. I feel that the liberty community, which frequently has its views misrepresented, should claim the moral high ground on this.

  • Bryan C||

    He's not addressing the views of the mainstream animal welfare community. He's addressing those vile authoritarians who discredit the mainstream by pretending to speak for the the animals.

    And in what way does anything about this was situation represent "the moral high ground"?

  • Emmett Till||

    whistling constitutes free speech under the 1st Amendment

    Wait, what?

  • Emmerson Biggins||

    Remember kids, unless you abso-fuckin-lutely have to, don't ever call the cops.

  • cw||

    And some still don't think the government de facto owns everything?

  • fried wylie||


  • tarran||

  • Raven Nation||

    Amazing. I remember hearing a few weeks back that there was a SWAT attached to some unlikely agency (HHS; maybe?).

  • Brett L||

    Dept of Education, too.

  • ||

    So if the US were invaded they would be swung into action to defend the nation's whales?

  • Mensan||

    Like the Coast Guard and Public Health Service, NOAA can be militarized by executive order during time of war.

  • Bryan C||

    Seems like they're pretty well militarized already.

    I've never understood why NOAA and the Public Health Service need to be uniformed services in order to be militarized. If we're at war and the armed forces require the expertise of a NOAA whistle enforcement officer or a USPHS telephone sanitation engineer, just pull somebody in and give them a brevet rank until they're no longer needed.

  • Heroic Mulatto||

    Fair enough. The NOAA, like the U.S. Public Health Corps are uniformed services. While they are not military, the military is part of the uniformed services. The Public Health Corps, like the parent organization of NOAA, the Geodesic Survey, were created to assist the Navy. The first by supplying doctors to serve aboard ships, the second by mapping the oceans and coasts. That's why they get to wear the sailor suits.

    Jus' sayin'

  • Brett L||

    I always thought it was weird when I worked at the FL Dept of Health and a uniformed member of the USPHC would show up. How many divisions has the Surgeon General? At least one.

  • ||

    I think it's actually relatively rare that NOAA and USPHS members actually wear uniforms.

    One of the reasons that they do have uniforms is that since they serve a defence related role there is a possibility that they could be captured in a war zone either on reasearch ships or in coastal areas in the event of an invasion. The uniforms are supposed to insure that they will be treated as prisoners of war rather than as insurgents or spies.

    Coast and Geodetic Survey officers were commissioned so that under the laws of war, they could not be executed as spies if they were serving as surveyors on a battlefield.

  • Ted S.||

    I thought the USGS was part of Interior and created to assist the Army.

  • ||

    The United States Geological Survey is indeed part of the Interior Department but its purpose is mostly to inventory the geological resources of the country. It is also the agency that studies earthquakes and volconoes. It also produces detailed topographic maps for vertually every square mile of US territory.

    It is not one of the Uniformed services of the United States like NOAA and the USPHS.

    The United States National Geodetic Survey is part of NOAA and is responsible for providing detailed geodetic survey data.

    The US Army Corps of Engineers also has it's own surveyors. The CoE has the responsibility for design and construction of harbors and flood control as well as of military forts and bases. About half its personel are civilian engineers and technicians.

    The BLM also has surveyors who are responsible for surveying public land and for keeping the records of the public lands surveys including for the original sectional suveys of lands which have passed into private ownership.

  • ||

    HM, while the word Geodesic is derived from "geodesy", the science of measuring the size and shape of the earth it is not the same thing in its modern sense.

    The United States National Geodetic Survey which is part of NOAA is responsible for practicing the art and science of measuring the size and shape of the earth, especially that part of the Earth which is occupied by the USA and its surrounding continental shelf.

    For most people I think the term geodesic is most familiar in the context of the Geodesic dome.

  • Fist of Etiquette||

    In a just world these regulators and prosecutors would do serious time for malicious - and pointless - prosecution.

  • The Late P Brooks||

    The more Americans learn about their government's abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash.

    Every day, I find it harder to pretend this is true.

  • Mr. Soul||

    I also find it hard to hope in my fellow citizens, but it's clearly all we have.

  • Pro Libertate||

    Apparently, the number of us truly offended is always just short of the number needed to change anything.

    Leviathan, by the way, can mean "whale," among other things.

  • aelhues||

    Unfortunately, I don't think the number offended are short, but the number who come to the correct conclusions, and make the correct connections, are short. I think most would be appalled by story's like this, but they'd think of them kind of like most do traffic accidents, inevitable, tragic, and borderline faultless. That or, most people dislike agencies, but don't tie the bad results in with larger government. They still want more goodies and safety.

  • Brandybuck||

    The obvious conclusion to this story is that we don't have the right men in charge. We need top men. Top. Men.

    OBAMNEY 2012!!!!

  • Tulpa the White||

    The problem is that the vast majority of Americans will never, ever hear this story. They know what the media tells them.

  • John Thacker||

    Good for George Will, then. He is fairly widely syndicated. More read than Reason, I think.

  • VG Zaytsev||

    Every day, I find it harder to pretend this is true.

    It's true.

    The problem is that the popular media doesn't report stories of government abuse.

    They're too busy fellating politicians to actually, you know, report what government actually does.

  • Lord Humungus||

    When visiting my brother on Vancouver Island, we all went on a whale-spotting trip. The Canadian government actually has workers in dinghies trailing these boats to make sure the whales weren't interfered with...

  • VG Zaytsev||

    When did Killer Whales become such pussies?

  • Restoras||

    Phew. It's good to know that all our other problems have been solved so now we can take care of the fake ones.

  • creech||

    Let me take a wild guess - instead of this episode turning her into a Libertarian, she still intends to vote for President Obama in November.

  • Raven Nation||

    So, she was really being tried for altering the tape, not the whistling. This seems part of a rise in "process" crimes: people being convicted for false testimony but not for any other crime. Or, people being convicted for "Resisting Arrest" but not for anything else. I mean, if you're not charged with a crime, how can there be any arrest to be resisted?

  • fried wylie||

    if you're not charged with a crime, how can there be any arrest to be resisted?

    *head asplosion*

  • The Late P Brooks||

    she still intends to vote for President Obama in November.

    Well, Romney's going to order the Army to dynamite every windmill and solar power facility in the country if he gets elected, so what's a girl to do?

  • Raven Nation||

    It would also be reminiscent of all the Russians who used to write to Stalin asking him for clemency from the charges that the state had levied against them without Uncle Joe's knowledge.

  • Ice Nine||

    Lot of stupidity in this case - not the least of which is her editing of the evidence tape.

  • perlhaqr||

    Though I have minimal evidence to support this assertion, it's not impossible that she just sent them a copy of the tape with just the whistling portion shown, rather than the entire tape, and the NOAA considered that "editing".

    From the linked article: Black says she provided the footage she thought the feds wanted (showing a captain whistling at a humpback whale), and no one ever asked her if it was edited.

  • fried wylie||

    I would want to see the exact wording of the request when "NOAA requested a video of the episode".

    Unless they said something to the effect of "complete, unaltered, original media of the event in question".....well, it might have. In which case I guess they got her on that bullshit charge.

  • The Late P Brooks||

    NOAA obviously needs a fleet of cigarette boats with .60 cal machine guns and rocket launchers. To make sure nobody interferes with the tranquility of the whales' pristine ocean habitat.

  • fried wylie||

    and lots and lots of sonar, to keep watch for harrassing vessels.

  • aelhues||

    What kind of douche calls the authorities because a co-worker participated in questionable whistling at a whale? If you think it's wrong, and don't have the balls to tell them, call for clarification on a hypothetical and tell the boss about the ruling. Obviously this persons parents encouraged tattle tales. I hope he/she lost their job for such senseless, vindictive stupidity.

  • VG Zaytsev||

    What kind of douche calls the authorities because a co-worker participated in questionable whistling at a whale?

    Obama's kind of douche.

    The type that really made those businesses happen.

  • cold666pack||

    You reap what you sow. She initiated the trouble that was dumped on her by being a nanny and even calling on the authorities instead of using common sense.

  • Drake||

    "To finance her defense she has cashed out her life’s savings."

    There is her real problem. Why would anyone with faith in government need a "life's savings"?

  • Bryan C||

    Yeah, Nancy. Why can't you be more like our friend Julia? She never has these sorts of problems.

  • ||

    Lots of comments at the WaPo site where Will's article was posted saying that she'd been warned may times, that editing the video did constitute lying, etc. Color me surprised.

  • Russell Seitz ||

    So sincere a Dominionist as George ought to take up recreational whaling. I hear the Spanish Navy has declared Generalissimo Franco's old harpoon guns surplus to its current needs.

  • Zeb||

    Unless she told them that the video was unedited, how is submitting the edited video lying? Doesn't there need to be some intent to deceive or at least some false statement?

  • R C Dean||

    And its not a "material false statement" unless the editing (whether disclosed or not) concealed incriminating activity. The way its described, the editing actually enhanced the whistling she was never charged for anyway.

  • Tonio||

    I suspect that there's something else going on here. I've always been suspicious of the amount of resources which NOAA has, and their amorphous mission and jurisdiction. They don't need all that to just report on weather and tides. My best guess is that she found, or was close to finding, something and NOAA used this as a pretext for harassing her.

    Also, I have it on good authority that US Navy vessels regularly use their SONAR to harass marine mammals, and somehow NOAA is never around for that.

  • Tulpa the White||

    And the employee who called NOAA is part of the conspiracy too, I presume?

  • Tonio||

    I don't see a conspiracy, Tulpa, just an government agency which is over-funded, over-equipped and over-empowered for its theoretical mission, and whose actual mission seems to be...whatever they feel like on that particular day. I'm thinking it's all a cover for an intel agency operating somewhat openly.

    Squealing employee - useful idiot.

  • SugarFree||

    She got too close to a BLUE HADES colony. She has to be silenced to protect the 1953 Benthic Treaty of Azores.

  • Tonio||

    Good one, Sug...

  • EDG reppin' LBC||

    Also, I have it on good authority that US Navy vessels regularly use their SONAR to harass marine mammals, and somehow NOAA is never around for that.

    My very close, longtime friend (25 years, I'm getting old) actually is the world's foremost expert on ocean mammalian auditory senses (whales and dolphins). He works extremely closely with the US Navy to reduce the harm caused by radar on the animals. Contrary to your "good authority", the Navy does not want to harass sea mammals, and actively and enthusiastically researches ways to not harm sea mammals.

  • EDG reppin' LBC||

    I wrote radar, but meant sonar.

  • PowerBottom||

    Well, I'm tempted to say this is what you deserve when you go to the government with any kind of question or seeking any kind of advice. Be prepared to be told you've broken some law or regulation and don't be surprised when they throw the book at you. They need convictions and shit they can hang on their wall to show how needed they are.

  • R C Dean||

    This is why I have always advised my peeps not to do any kind of "voluntary disclosure" to the feds.

    Their protocols for handling voluntary disclosure are quite clear that doing so buys you exactly no protection or consideration.

  • Brutus||

    Yep. Don't ever say a word to the cops/feds other than "Talk to my lawyer."

  • ||

    The more Americans learn about their government's abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash.

    Dream on. People positively demand aggressive prosecution. The more people they go after the better. It's silly to suggest the government is being a capricious bully. If she wasn't guilty they why is she being charged.

  • CampingInYourPark||

    "Man who had hand bitten off by gator charged with feeding it"

  • fried wylie||

    Never feed the hand that gets bit. Or something along those lines.

  • ||

    More laughs from Florida (and gators).

    PANAMA CITY BEACH, Fla. — Officials say a Florida Panhandle Fish and Wildlife officer lost a 5-foot alligator after bringing it to his daughter's school for show and tell.

    Searchers scoured a wooded area surrounding the school Friday afternoon. The alligator jumped out of the man's vehicle Friday morning. The animal's mouth was taped.

  • Muad'Dib||

    "What? I got Pinched Mal!"

    "Which is what happens when you go to the feds."

  • Brandybuck||

    We are now in a dystopia. But instead of being Orwell's 1984 we are now Gilliam's Brazil.

  • Bryan C||

    "NOAA agents"

    Hey! You! Get off o' my cloud!

    I feel much safer knowing that the National Oceanic and Atmospheric Administration has broad police powers.

    Psst, NOAA Agents! You know the Department Of Education's armed response squad? Yeah, those guys. Total jerks, right? I saw them out fishing the other day, and they were taunting a manatee! Really! Right there in front of everyone! You're not gonna let 'em get away with that, are ya?


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