- Associated Press - Friday, October 9, 2015

A tuna fisherman charged with killing a pilot whale that died of a bullet wound said Friday the charges against him should be dismissed.

The fisherman, Daniel Archibald, said in a court filing that the investigation disregarded the facts. He alleges investigators used an illegal, warrantless search. He also says investigators ignored ballistics tests that showed a bullet in the whale could not have come from his Mosin-Nagant rifle, a World War II-era weapon.

The U.S. Attorney’s Office for New Jersey declined to comment on the case. The government has not yet responded to the briefs calling for the charges to be dismissed.

The pilot whale was found on a beach in Allenhurst in September 2011 and it died soon after that. Authorities determined that the 740-pound mammal starved to death because of an infection caused by a bullet that hit it about a month earlier.

In February, Archibald, of Cape May, was charged in the case.

Prosecutors say he had posted on Facebook complaining about pilot whales eating tuna and that he was on a fishing vessel in the area where the whale was likely shot. They said he also acknowledged “spraying” shots at pilot whales, which are extremely social animals, to scare them away from fishing lines.

In Friday’s filing, Archibald’s lawyer, Bill Hughes Jr., argues that the investigators from the National Oceanic and Atmospheric Administration and the U.S. Attorney’s Office misstated the 1972 law that makes it illegal to hunt, kill, capture or harass any marine mammal. The law exempts commercial fishermen who harm marine mammals incidentally.

He also says a cooperating government witness broke into a cabin in his vessel, the Capt. Bob, and photographed items including the rifle. Hughes says that amounts to an illegal search. Hughes also objects to the government’s use of Facebook messages from his client about hunting. In those messages, Archibald allegedly described another hunter as “a bigger poacher than I am” and stated, “I shot a turkey out of season.”

Hughes called that information “highly irrelevant and inflammatory” and says it should not be allowed in court.

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