In a prior Foundry post, we highlighted the egregious misconduct of the National Oceanic and Atmospheric Administration’s (NOAA) Office of Legal Enforcement in the prosecution of marine biologist Nancy Black. NOAA is criminally prosecuting her for bogus charges, including lying to investigators and feeding whales. These charges could land Black in prison for more than 20 years.

More importantly to NOAA, she faces fines of $700,000 and forfeiture of the inflatable boat she uses for research. Why is that “more important” to NOAA? Read on.

The Magnuson–Stevenson Act allows NOAA to deposit any fines that it recovers from enforcing certain marine resources statutes into a fund used for future investigations. NOAA uses the Magnuson–Stevenson Act to justify keeping all fines it collects, no matter what law or regulation has been violated.

A February 2012 report from the Office of the Inspector General (OIG) found that NOAA’s “collection activities may result in undetected misuse of funds” and NOAA cannot even account for all of the money it has collected. Apparently, nobody knows where it went.

Through these forfeiture sections in statutes, Congress has given NOAA (and presumably other agencies) an incentive to dredge up as many criminal charges as possible and take people for everything they are worth. There are so many criminal laws and regulations on the books that if a person is the target of an investigation, an agency is almost certain to find something with which to charge him. The agency can then threaten a person with jail time, hoping to get large sums of money in some sort of deal. The criminal law has become a means to pad the budgets of agencies.

NOAA’s abuse has been going on for so long that it has an entire webpage dedicated to all of the misconduct that OIG has found over the years. Each OIG report is met with a written proposal from NOAA on how it is going to do better.

The irony is too much to tolerate. For years, NOAA maliciously prosecutes people and can’t account for the money it has collected. NOAA then responds to a written reprimand with an “oh gee, I guess we should do better” reply and expects to go on doing the same thing without any repercussions.

Black has dedicated her life to protecting and studying whales. She has not harmed anyone, including any whales. She tried to cooperate with investigators. NOAA then ties her up in litigation for nearly a decade, costing her more than six figures in legal fees, wants to take everything she has, and threatens to throw her in prison.

If NOAA were a private commercial institution, the media would hound it for mishandling of funds and for harassing Black. Because it is a government entity supposedly devoted to saving the whales (rather than its own bacon), instead NOAA gets just a slap on the wrist.

Perhaps it is time for more than another OIG report. Congress should exercise its oversight authority and take a serious look at the Nancy Black case.