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August 2013    Download the Entire Issue (PDF) Available to the Public Vol. 28, No. 8   RSS Feed for Undercurrent Issues
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Feds Seize Jean-Michel Cousteauís Boat

but why was someone else given the criminal charges?

from the August, 2013 issue of Undercurrent   Subscribe Now

On June 14, Federal agents seized the Manfish, a $30,000 boat moored in Santa Barbara that is owned by Jean-Michel Cousteau. It was part of a Department of Justice action for transgressions during his team's filming of orca attacks on Monterey Bay in April 2004. Among the violations alleged against the 25-foot Manfish, Cousteau's crew interrupted a feeding frenzy by driving too close to a gray whale carcass, even inadvertently backing over the dead calf while the killer whales were actively feeding.

Around the time its agents seized the Manfish, the U.S. Attorney's Office filed a civil complaint for forfeiture, which allows the government to gain possession of a person's property without any determination of guilt. It's a lawsuit against property, not the person, so legal action has less to do with a person's guilt and more to do with the property's use in association with criminal acts.

No one in Cousteau's crew was charged, and the U.S. Attorney's Office declined to comment on its decision why. Yet Nancy Black, a marine biologist who helped Cousteau's team during its Monterey Bay filming, was charged with a misdemeanor for her role, along with felony charges for a separate whale-watching trip. They're all rolled into one lawsuit that carries maximum prison sentences of 20 years and fines of at least $100,000. Why the heat on Black, who was just another person helping on the trip, and none on Cousteau, who led the expedition?

"That's not fair. For them that's nothing," said Black, of the loss of Cousteau's boat when interviewed by the Monterey Herald last month. "That's what they should have done to me. If they thought I did something wrong, a civil fine would have been enough, instead of going through seven years of fighting a criminal case, but the government insisted on that."

"He just forfeits the boat, while she
has gone through years of litigation
and expenditures. "

Cousteau was filming an episode for his PBS TV series Ocean Adventures, "The Gray Whale Obstacle Course," in April 2004, when his team was alerted to the epic spectacle of the orca attacks by Black. His crew moved the Manfish north for "the money shot," up-close and eye-level footage of the killer whales feeding on the flesh of young grays. That's what led to the seizure of his boat.

Black, co-owner of Monterey Bay Whale Watch, helped out by providing two boats to help Cousteau's crew that day. On one boat, Black threaded a knotted rope through a piece of floating blubber to keep it nearby so crews on Cousteau's boat could better film the orca snatching it from below. Investigators from the National Oceanic and Atmospheric Administration (NOAA) said she was "chumming," essentially feeding the whales, a violation of federal law. Black says she was merely using strips of blubber torn from the whale's prey, a gray whale. Regardless, in January 2012, she was charged with two counts of violating the Marine Mammal Protection Act (MMPA).

But NOAA was not done. In that same lawsuit containing the MMPA violations, it filed felony charges for Black based on a whale-watching trip she led on two boats on October 12, 2005. On the boat Black was captaining, a crew member urged passengers to make noise, but Black says she told him to stop. On the other boat, the captain whistled at a humpback that had approached the boat, hoping to entice the whale to linger. Back on land, the captain's then-wife called NOAA to ask if the whistling constituted harassment of a marine mammal. NOAA requested a video of the episode, which Black sent after editing out the noise-making crew person and highlighting the captain's whistling, she says, because that is what she thought investigators wanted to see. NOAA found no harassment of mammals, but it did indict Black for editing the tape, calling this a "material false statement." (Neither her captain nor her crew members were charged.) In November 2006, more than a dozen federal agents, led by one from NOAA, raided her home and took her scientific photos, business files and computers. To finance her defense, Black has cashed out her life's savings, spending $100,000 on her defense. At the same time, she has became a favorite of conservative media and advocacy groups as the poster-child victim of government run amok.

While Cousteau got a lawyer, no charges were filed against him. California Congressman Sam Farr confirmed to the Monterey Herald that Cousteau had asked him to intervene on his behalf. After Black's prosecution, the case seemed to have drifted away.

That was until last month, when the civil action was filed against the Manfish, which Cousteau's team voluntarily surrendered. The complaint alleges that the Oceans Futures Society sought a "take" permit under the Marine Mammal Protection Act that would have allowed it to "harass, harm, pursue (or) collect" any live, dead or injured marine mammal for research and education. The permit was not issued until after the filming was completed, however, and was not retroactive. The complaint states that the crew's own film captured members hooking pieces of blubber, bringing them aboard to secure them with rope, then tossing them back into the choppy sea to facilitate filming of the orcas. At one point, the boat approached so closely to a gray whale calf's carcass during a feeding frenzy that the orcas began making large tail-slapping motions and dragged the carcass under the water to escape the boat. When the dead animal resurfaced, the crew repeated its attempt, this time backing over the carcass as the orcas fed.

Cousteau, who is not named in the complaint, is currently in South America, but his lawyer, Lee Stein, gave us this statement: "Ocean Futures Society acknowledges that mistakes were made during filming in Monterey Bay nine years ago. No animals or marine mammals were harmed during the filming and this was a matter that should not have been handled as an enforcement case. Nevertheless, Ocean Futures Society cooperated completely with [NOAA's] investigation. The Department of Justice concluded appropriately not to pursue any civil violation against the Society or any of its staff."

Mark R. Vermeulen, a San Francisco lawyer working on Black's case, told Undercurrent he doesn't understand the divergence of treatment for Black versus that for Cousteau. "He just forfeits the boat, while she has gone through years of litigation and expenditures. She should have had a civil penalty, if anything. NOAA has a record of giving civil charges for similar actions. She was charged with the felony of making a false statement, but NOAA is a department that focuses primarily on violation of marine sanctuary laws."

Black made a plea agreement so that there's no jail time involved, but there will be a probationary period and a large number of community-service hours. She'll find out the extent of that when she goes for her sentencing hearing at U.S. District Court in San Jose on September 10.

-- Vanessa Richardson

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