A Cape May County tuna fisherman is fighting federal charges of shooting a pilot whale that was feeding on his boat’s catch.

Daniel Archibald denies the charges filed against him in U.S. District Court. But his lawyer, Bill Hughes Jr., said in court papers that even if Archibald shot the animal, he wasn’t breaking any laws.

The unusual case highlights the often contentious relationship between fishermen and the seals, whales and dolphins that steal their catch. And it points to the murky laws that give fishermen, marine contractors, researchers and others permission in some cases to kill them.

Prosecutors say Archibald, 27, of Cape May, in 2011 used a rifle to shoot at short-finned pilot whales feeding on the long-line catch of the Capt. Bob, a tuna boat based in Sea Isle City.

He was charged with conspiracy to take marine mammals on the high seas and violations of the Marine Mammal Protection Act.

It is against the law for commercial fishermen to intentionally harm a seal, whale or dolphin unless trying to save human life.

But the law is far less black and white when it comes to unintentional killing.

Commercial fishing boats are allowed to kill marine mammals if doing so is “unintentional but not unexpected.” They must obtain a federal permit for fishing activities that could harm whales, dolphins or seals, which regulators call an “incidental take.” For example, a seal might swallow a hook while eating a hooked fish.

Hughes declined to comment on the case. But in court papers, he said the Capt. Bob had such a permit.

Fishermen are obligated to report any seal, whale or dolphin they kill or seriously injure. Injuries considered serious enough to report include bleeding, swallowing fish hooks, damage to the animal’s eyes or jaws, or impaired swimming.

Federal law also permits fishermen to harass marine mammals to prevent them from damaging their gear or stealing their catch, as long as doing so does not result in the animal’s death or serious injury.

Preventing marine mammals from stealing the catch is a legitimate issue for fishermen, said Ernie Panacek, manager of Viking Village in Barnegat Light.

“When they move in, they move in. And there are a lot of them. Fishermen are always trying to avoid them,” he said.

Short-finned pilot whales, in particular, are known to travel in large pods of as many as 50 animals.

Archibald told investigators he shot at pilot whales.

“I’ve shot at (pilot whales) before to try to scare them away. I didn’t think that I had hit any of them. If I did, it wasn’t on purpose,” he said, according to court records.

Hughes argued that fishermen routinely use loud noises or even explosives called seal bombs to scare predators away from their gear.

“Shooting at marine mammals to deter them from catch and gear is a common practice in the commercial fishing industry, and NOAA is keenly aware of this,” Hughes said in court papers.

Hughes said regulators outlined rules for using firearms as a deterrent before 1995, when later revisions omitted the reference.

Hughes alleges the federal agency used a confidential informant to conduct a warrantless search of the Capt. Bob to photograph the rifle.

Likewise, Hughes said the match between the bullet fired at the whale and ballistic tests from Archibald’s rifle was inconclusive. He asked a federal judge to unseal the grand jury presentment to prove prosecutors misused the jury to gather evidence against Archibald.

The Marine Mammal Stranding Center in Brigantine found the dead pilot whale with the infected bullet wound. Director Bob Schoelkopf said fishermen historically have considered marine mammals competitors for fish. And while there are occasional accounts of marine mammals being shot illegally — like six gray seals shot in Cape Cod in 2011 — it’s rare, he said.

“I talk to a lot of commercial fishermen who think it’s deplorable that anyone would shoot these animals,” he said. “If this were a common thing, we would find more whales washing up with bullet wounds.”

The National Marine Fisheries Service this month said fishermen are not allowed to shoot firearms at marine mammals to scare them away.

“Multiple animals may be present underwater and not be visible,” spokeswoman Katherine Brogan wrote in an email.

But in rare cases, state wildlife agencies can apply for a permit to shoot and kill serial offenders. In California, for example, the state has shot sea lions that habitually steal from fishermen. This does not apply to whales or pilot whales, which are a type of dolphin, the fisheries service said.

The agency said it is refining rules about the ways fishermen can legally harass wildlife to protect their catch. Typically, this has included the use of “seal bombs,” loud firecrackers that have had some success in protecting fishing gear.

“We are evaluating a wide range of deterrents, including noisemakers (horns, starter pistols), water deterrents (hoses, sprinklers) manual blunt, nonpenetrating objects (brooms, blunt-tip bull poles), predator shapes, sounds and vocalizations and acoustic deterrents,” Brogan said.

Long-line fishing poses the biggest threat to pilot whales, according to the National Marine Fisheries Service. The agency formed a special task force in 2009 to address the incidental killing of pilot whales by fishermen off New Jersey and the rest of the mid-Atlantic.

The team is coming up with a take-reduction plan that calls for reducing whale deaths from long-line fishing to near zero. To accomplish this, they called for modifying fishing gear, adding more fleet observers and improving education of the commercial fleet, particularly about how to safely remove fishing gear from a tangled or hooked animal.

Panacek said fishermen worked with the agency to come up with safer and more effective methods to protect both their catch and animals that try to feed on them.

“We’ve made tremendous progress with sea turtle avoidance with changes in gear and hooks,” he said.

In some cases, fishermen use hooks that bend more easily if a powerful whale is hooked, so the animal can pull free.

“The research long-liners did on the Grand Banks in cooperation with the National Marine Fisheries proved to be very successful,” he said.

Contact: 609-463-6712

Twitter @ACPressMiller

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