The Case of the Lobster, a “Living, Sentient Creature”

And I invited Asher on because I had heard about this, this case about the Maine Lobster Fest. You might've heard about it, and of course, PETA's litigation regarding it. Uh, but then he also caught me up on what's going on in a case we talked about on episode 94 involving the University of Washington. And there have been some crazy and crazy good developments in that case.

Uh, so we wanna get caught up on that too. So we're gonna do both, so we have a lot to talk about. So buckle up and welcome, Asher.

Asher Smith: Hey, thanks for having me again.

Mariann Sullivan: It's a thrill. Uh, I can't wait to hear about both of these cases. Just a quick reminder before we get to that Rising Anxieties comes out on Tuesdays, The Hen Report on Thursdays, and the long form interview, including this one, on Fridays. Bonus for Flock members comes out on Monday.

We're a podcast and we're on YouTube. Please subscribe and hit like wherever you listen. Thanks. And, okay, let's get started with lobsters. Uh, and as always, let's start off with some facts. Can you, can, can you just pretty much tell us about the Maine Lobster Fest?

Asher Smith: Yeah, sure. So Maine Lobster Festival is an enormous attraction that takes place in Rockland, Maine. And what they do is they literally steam 16,000 lobsters alive on public park land, um, in a device that they refer to as the world's largest lobster cooker, it's actually up all year long. And what our lawsuit does is it argues that, for reasons I can get into, that actually does violate Maine cruelty to animal law.

Mariann Sullivan: Yeah, I, I really wanna start with the cruelty to animal law, though, of course, since you're not the DA, uh, that you can't directly just go into court about the Maine cruelty law, and you have found some really creative ways of, of highlighting Maine's really interesting cruelty law. So let's, um, let's, let's start with, with that first question.

Tell us about the relevant parts of Maine's cruelty law, which is really isn't that old? It was, it was revamped, I think, not really long ago, but of course, specifically the very interesting definition of animal, which of course defines what the law applies to.

Asher Smith: Exactly, so, so in in one respect, the Maine animal cruelty statute isn't particularly unique, in that it requires animal deaths to be instantaneous, it prohibits things like torture of animals. Where the Maine statute is really unique is that it has a dynamic definition of animals that's capable of being updated with the science. It says that animal includes every living sentient creature, not a human being. And, and that's so interesting because there are states where there's a large agricultural industry, and there we do see states that define animals for animal cruelty purpose based on species. We see states that don't count conduct that is generally accepted within a particular industry. Maine is is one of the few states we've seen that actually who is covered by the law to be updated with the state of the science.

Mariann Sullivan: Yeah, and, and in a totally logical way. I mean obviously sentience is the whole ball game when it comes to cruelty. It doesn't matter if, if an animal isn't sentient, uh, whether you do something to them. And if an animal is sentient, like things that would be innocent in other cases is, uh, obviously cruel.

But of course the term sentient is a, is as you point out a, a moving target. And, and, uh, do you have any idea, is there any legislative history about how they came to, to include this? Was it, were they thinking in a particular way? Do they define sentient within the statute at all?

Asher Smith: They don't define sentience, but sentience is, despite being a concept that is used by so many different fields of, of human inquiry, um, there really is a, a convergence on a basic definition of sentience, which is basically an animal or creature's capacity for consciousness and subjective experience.

Basically valenced experiences, that things can be good or bad for them, that they can feel pain and they could be aware of their own suffering. So, so that's fairly well established. Um, and there's not too much in-depth legislative history on how they wanted to define sentence outside how the relevant scientific fields might define it. But, there is some super interesting legislative history and, and other statutory text that sheds light on how this should be determined. Um, something that we've seen in our motion to dismiss briefing is the idea from defendants that, oh, this just can't include lobsters because lobsters are such a big industry here. They, they couldn't have meant that. And actually what we can point to is the fact that Maine's, uh, cruelty code does in sections that aren't particularly relevant for our purposes, but does have spots where it carves out lobsters, decapods, for other reasons. So when they want to, they can.

Mariann Sullivan: Yeah. And also, even if you know, let's say they're right and the main legislature wasn't thinking of lobsters when they passed this statute. They used a word that would encompass change and, and the science has changed since then, probably, or at least developed in, in very strong ways. So they, they, they may not have deliberately included the word lobster, but they did, they included a word that would have a shifting definition.

I mean, unless they're stupid, like that would be a really dumb thing to do. They must have known that science changes, and this is essentially a scientific term.

Asher Smith: You know, it is really funny that, that you mentioned DAs earlier, 'cause obviously DAs are the ones who are charged with interpreting the criminal code. There have been local DAs in Maine who have confronted the question before of, wait, why can you do whatever you want to lobster? Doesn't that violate our pretty clearly written animal cruelty code? And what they've tried to argue in the past, in, in, in opinion, letters, things like that, is that, oh, actually what sentience means is vertebrate animals. Vertebrate animals can be sentient, invertebrate animals not sentient. And that's...that's just not how the science works. That that, that's basically a folklore approach to what is a dynamic scientific question.

Scientists no longer believe, for example, that a vertebrate style brain or existence of a human-like central nervous system is what's necessary to feel pain or have valenced experiences. Instead, scientists use, and this will be shocking, scientists use science. They, they look functionally at evidence of perception, behavior, learning. And, and lobsters, like other decapods do everything you would expect a sentient creature to do. They avoid pain, um, if they feel pain, they'll rub themselves. Getting deeper into the science, um, they show all the biological distress markers you would expect for an animal that is capable of these kinds of valenced experiences, like elevated lactate levels. And it's not really a case where we're expecting to go into this setting up a battle of competing roughly equivalent experts on each side. Our, our view really does represent, and, and our complaint references the existence of hundreds of scientific papers, it, it quotes from a number of them, that this is rock solid science that other peer countries haven't just acknowledged, have actually legislatively acted upon.

Mariann Sullivan: Yeah. No, it, it, that is a ridiculous argument that it only applies to vertebrates. I mean, like, if they wanted it to apply to vertebrates, they could have said vertebrates. I mean, why would they say sentient?

Asher Smith: Exactly.

Mariann Sullivan: Oh, alright. So one of, one of the things they point out, which particularly, uh, annoyed me is that they, they actually referred to one of the articles that you put in as... you know, you, you haven't submitted all your evidence or had a hearing on this yet, but you've, you know, you've, you've noted a few articles pointing out what you've just said and, and they said, um, that this article mentions it is doubtful if we will ever know for certain if they do or do not feel pain.

And this kind of brings up this sort of standard of proof kind of issue like how, uh... what do the, uh, lobsters have to show? How strong does the evidence have to be? Does it have to be beyond all reasonable doubt or any doubt whatsoever that, that they are sentient?

So we're, I mean, obviously this isn't a reasonable doubt standard. I mean, I don't know. I don't know what, what the standard is. I'm sure what it is. I guess that's why I'm asking you. Um, but they're kind of arguing that if there's any doubt, then we don't have to worry about them.

Asher Smith: Yeah, that's such a funny argument because it, it just shows a complete ignorance of, of how scientific inquiry works and how scientists will talk about their results. Um, scientists don't write like legislators and, and that surely cannot be the standard here. As anyone who you know, took science classes in middle school or high school knows, there's something called the scientific method.

Scientists start out with hypotheses. They test their hypotheses and, and they reach results that might have the impact of further confirming or supporting the hypotheses they started with and. You're not going to get a scientific paper that says, oh, I had an idea for looking into this question. The results are consistent with sentience, game over.

We're done here. We nailed it. Even, um, papers that are literature reviews, you know, they're going to accurately describe what is in the literature. And you can have really firm scientific consensuses that don't still produce a sexy soundbite in an academic paper that says, this is over forever, no one else can ask questions again. Um, I, I think, again, I, I referenced before what other countries have done, you know, other countries aren't acting out of charity. I'm, I'm sure if you left it up to them, they would love to support local restaurants. Their, their, their own local food industries, but they have seriously looked into these questions.

Um, the United Kingdom, for example, set up a commission that looked into the issue of, of decapod sentience, and they actually amended their cruelty law to incorporate lobsters in a way that it seems like Maine law is set up to do so. Um, other countries all over Europe, Switzerland, the Netherlands, Australia, Norway have banned so many of the most torturous ways of, of killing lobsters exactly because of this evidence.

Um, folks who listen to your show a lot might have mixed opinions about the, the conclusions put out there by the American Veterinary Medical Association. Um,

Mariann Sullivan: Obviously there's some mixed feelings there, but you know, when they say something good, that's good.

Asher Smith: Yeah. I mean, they're as far as you can get from animal rights advocates, because that's not who pays their bill. But they also categorically state that because of what we know about lobsters, uh, boiling unstunned lobsters, which is very similar to how the Maine Lobster Festival kills them, is unacceptable.

Mariann Sullivan: No, it, it does seem like a really strong argument, but unfortunately, as I said at the beginning, that's not, you're not the DA. So that's not the only argument that you have to, uh, you have to win. You have to figure out a way to, as usual in animal law, you have to have, figure out a way to get this argument into court.

And, um, the, so, so even assuming you establish that the festival has violated the cruelty law, you still have a pretty long way to go, and so, but you, you came up, well, not came up with, you found a plaintiff who wanted to bring these, uh, bring, bring these arguments and, and had some causes of action that legitimately represented his or, or her particular interests. And you brought your, I, I shouldn't have said you found a plaintiff.

You found a member. 'Cause we'll go into the, into the, um, associational standing and you brought your suit in Maine Superior Court, which, uh, is the trial court in Maine. Sounds like an appellate court, but it's the, it's the trial court and you have two causes of action, right?

Asher Smith: Uh, that's exactly right. Um, we have a cause of action related to the violation of cruelty code, which in what our member experiences as a public nuisance. We also have a violation of the public trust doctrine, which basically just says that Maine government entities are required to keep public intertidal lands, um, in trust for the people that would use them.

So for example, PETA has a member that uses her kayak recreationally. And because what this festival does is by being such an imposition on the landscape of, of this public park, it, it makes so much of the park and surrounding area inaccessible for, for people like this member. Um, again, in the lawsuit, as you alluded to, what PETA does is it talks about one of its members who, who lives right by the steamer and finds themselves excluded, not just from say, their kayak launch, but also, basic activities that you would use the park for from participating in, in municipal life, basically because this festival creates an illegal public nuisance.

Mariann Sullivan: Yeah. And so as always, you had to find a way that a, a human was injured, and you definitely did. Um, and so you're suing as an organization, you're asserting associational standing, which means I think that you're suing, um, asserting the rights of, of your member. And, uh, they argue that, that you don't have standing because they don't know who this person is.

Can you just address that briefly?

Asher Smith: Yeah, that, that's a really interesting argument to see. They, they basically pull at some threads from various other first circuit cases to argue that actually you can't have associational standing unless your complaint identifies the members who you're suing on behalf of by name. And, and that's just not the law either in Maine, in the first circuit, in, in really anywhere. That, that's just not how associational standing works as a doctrine.

The organization's job at each phase in the case is to do enough for the court to understand that there have been members who are injured at the pleading stage, which is where we are now. The court has to take all of PETA's allegations as and, and that includes all of its allegations about the injuries suffered by PETA members.

Mariann Sullivan: So, uh, you, you've basically laid out the way in which this person was injured, but let's get to the actual elements of the causes of action. If we, I guess we can start with public nuisance. Um, and what are the elements of a public nuisance in Maine, and specifically how do they relate to the commission of illegal animal cruelty?

Asher Smith: Sure. So something that you'll see, um, across the country in many states is that public nuisance law is developed to bar, I, I think, paradigmatically something like a brothel being located next to a school. Um, you see precedent around public nuisance law use language around things that offend public morals. Um. Functionally, it's really the kind of thing we've litigated this in the past, for example, we had a case several years ago, in the fourth Circuit, um, in the district of Maryland against a roadside zoo alleging that their conduct against their animals was so egregious as to violate cruelty law and so constitute a public nuisance, and we've had traction with it in the past, which that what the Lobster Festival is doing is so insanely torturous that it's a violation of Maine cruelty law and so egregious that it violates nuisance law. Uh, one thing I, I just wanna make sure your listeners understand because I'm sure many your listeners are already offended by the concept of, you know, killing lobsters at, at all to eat them. But they really, in order to facilitate this public spectacle, go about it in the most cruel way possible. Um, it, it's a large logistical undertaking to literally steam 16,000 creatures alive. They actually chill the lobsters beforehand, um, to make them basically less active And, and make it easier for someone to pick them up and throw 'em into the steamer. Um, and on their website, it seems like they, they like to tell people that, oh, that actually makes it better. That makes it so much worse. What, what that means is by chilling the lobsters, they're actually sensitive to pain and take longer to die. They're really doing this in the most cruel way possible and prolonging their torture as much as possible.

Mariann Sullivan: Wow. It really is horrifying. Um. Alright, so in add... uh, public nuisance, the, the tricky thing about public nuisance, which sounds like such a great cause of action, is this, is this requirement of a special injury. So it's public nuisance, but sort of not every, everybody, not every, every member of the public can bring it even if they're all injured, which seems kind of crazy, but I think this is pretty standard in, um, public nuisance cases that you that... so they're arguing that, um, and they argue that this isn't illegal cruelty, of course, but they also argue that you haven't shown that your members have suffered this kind of special injury that is different from the general public.

Um, and, and can you... I mean, you've kind of alluded to that already by, by telling us where she lives and what she likes to do. But can you go into that a little bit about, because this seems to be a big argument on their behalf that, uh, that even, even if this is a public nuisance, she can't sue because she's not specially injured.

Asher Smith: Right. That, that, that's why those allegations that describe, um, this member's activities and where they live are so important because you're exactly right, it wouldn't be enough say PETA has members in Maine or even PETA has members in this county who would be effectively barred from the park because this is so disgusting it causes them such distress.

What we've had to do and what we've done in, in speaking to PETA members is we establish that there are people who actually are users of the park, that they do have a unique injury, that what's going on doesn't just injure them in the same way any member of the public who, who finds this disgusting, might feel aggrieved, but that they are suffering that special injury.

Even if it's something like they can't walk their dog, they can't use their kayak, they can't participate in any festival activities because the world's largest lobster cooker would be looming over every activity that they would otherwise be undertaking.

Mariann Sullivan: So is the, is the inability to reach the kayak, which you had specifically referenced before, is that a physical obstacle or is it just the, the, I shouldn't say just, is it, uh, primarily based in, in just how horrifying it would be to have to walk through this, this, uh, cruel spectacle in order to get there?

Or is this person actually blocked from using, uh, their, their kayak during the festival?

Asher Smith: So what the complaint explains is that because the world's largest lobster cooker essentially dominates this entire landscape, the parts of the park that are in the vicinity of the cooker are, are effectively inaccessible for this member and, and others like them. Yes, that, that's basically how the, the kayak comes into play, is that they can't access their kayak without being basically right by the lobster steaming.

Mariann Sullivan: So I, I, I jotted down this and I'm not actually sure what I meant by, I'm gonna ask you anyway 'cause I only have to ask the questions. The city also argues that it has no liability because it is just a regulator issuing a permit. Um, is that, is that a viable argument?

Asher Smith: I, I don't think that's a viable argument because the, the city is really taking a bunch of affirmative steps to put on this festival. They're the ones issuing the permits. They're the ones allowing their land be used by this, this private festival corporation to, to do all this lobster steaming.

It's not just that they're passively saying, okay, you applied for a permit, you can go. It, it's that the, the government is doing everything they can to promote this, to make it happen, to make it successful and accessible for people who want to go and steam the lobsters.

Mariann Sullivan: And that would, um, you actually have two defendants, right? It's the festival itself and the city. Is that, am I right?

Asher Smith: Exactly.

Mariann Sullivan: So even if the city were successful in that argument, and it sounds like a, I mean it really does sound like a stupid argument to me here. I mean, they issued the permit, they couldn't do the festival without the permit.

Um, so that seems like liability to me. But even if, even if they were successful on that, you'd still have a lawsuit, it just wouldn't be against the city itself. That's right?

Asher Smith: That's right.

Mariann Sullivan: All right. Um, all right. That's all I have on the public nuisance, um, cause of action. Um, unless you have anything to add on it, I'd like to move on to the public trust doctrine, which is a cause of action I don't think I, you know, that people are that familiar with. Um, and, and here I saw from your papers that you argue that they violated the public trust doctrine by blocking access to intertidal lands, abutting the harbor. It's already sounding very Maine specific. Um, 'cause you know, I don't have any intertidal lands or anything.

Alright. So I, I'm not sure people understand what the public trust doctrine is or it's particular permutations under Maine law. Um, so can you just kind of go into that and, and, uh, because the interesting thing about it is that it's enforceable by private citizens, right?

Asher Smith: That's right. And, and it is in, in many ways coterminous with, with what the public nuisance arguments are, are explaining. But Maine does, because Maine Shoreline is so precious to it, have a public trust option that establishes that, um, submerged lands and intertidal lands are held in trust by the state for the people who would actually be using them.

You, you have to permit the public to actually use the land for fishing, navigation, things that they would use it for and, and I mentioned the word navigation, but that's why this kayak becomes so crucial and, and really an interesting fact to develop because it, it, it it might sound random, but, but it actually does bring the associational injuries in line with the paradigmatic kind of public trust doctrine that you would expect to see under Maine law.

Mariann Sullivan: Yeah, I, I think this argument gets pretty weedy pretty fast, and I don't want to get lost in, in, in, I mean, and probably literally in these weeds considering the land we're talking about. But, um, like it involves things like whether the festival takes place on wet sand or dry land. And, uh, and, and uh, so, but the basics are that this land, that at least some of the land that the festival is on, is in the public trust and the festival blocked public access to it.

That's the gravamen of the cause of action.

Asher Smith: That's exactly right.

Mariann Sullivan: Right. That seems, that also seems like a good cause of action. Um, maybe this question is a bit beyond the scope of this interview, but I'm not that familiar with the public trust doctrine. I may have run into it once or twice before, but do you think it's a promising avenue for animal law in other areas?

It's kind of hard to tell because this is such a Maine specific, it's so geographically specific, but it seems like, it seems like there might be a lot there, of potential. As a, as the Director of Litigation for um, PETA, is that something you would have your eye on?

Asher Smith: Oh, totally. Yeah. I, I, I think basically across all 50 states, especially as, uh, vehicles for federal standing become and more challenging. To me, I, I think everyone who works in this field needs to be very attentive each state's quirks of public nuisance law, that the precedent, and in some cases statutory language will be different in each state, and whether there are other avenues like in Maine, this public trust doctrine. North Carolina has their 19 a provision that permits, uh, for private rights of action to enforce cruelty law. We have some states that allow through consumer law, the ability to argue that conduct that is illegal might also be actionable in some scenarios. We really do have to be attentive to all these potential tools to get at conduct against animals that, that, like you started off our conversation pointing out, would otherwise be up to local, potentially captured DAs to enforce.

Mariann Sullivan: Yeah. Or DAs who just, you know, aren't thinking like, like they, they're not out of the box at all. Uh, you know, these are, these are new arguments. I mean, people probably honestly did not think that that lobsters were sentient. People didn't think that newborn human infants were sentient until relatively recently.

So, so you can't be expecting everyday DAs who aren't interested in animals or, or, or theory about them to come up with these arguments or understand that the law's being violated. Um, and they actually say, I mean, getting back to the, to the basic cruelty question. Assuming we're done with the public trust and public nuisance causes of action, I'd just like to go back to, um, that, that, that they talk about how thousands upon thousands of Maine residents and visitors would be surprised to discover that they're now criminal animal torturers.

I mean, that is, I I think that's a legitimate problem. People probably don't realize this, but how the, the legislature specifically made this a moving target of sentience, that it would move with the science. And we're always being told well by courts, well, we shouldn't, can't decide that it's a matter for the legislature if, if this is going to be changed, it should be the legislature.

Right? They passed this law. This is a matter for the legislature.

Asher Smith: That's right. And, and and that language that you just used to describe the law a moving target is exactly right. And what's so crucial to understanding this? I mean, that's the plain text meaning of this law. That's what the legislature set up. And it's so funny because on, on reply, after we pointed all this out in, in our motion to dismiss opposition, the argument we got, um, from defendants basically tried to ignore that issue and just tried to say, aha, by your arguments, even scallops would be covered by Maine cruelty law. Isn't that ridiculous? And they completely ignore that, no, it's a two step analysis and we just follow the analysis where the science leads. I, I don't wanna prejudge any, any other questions having to do with other invertebrate animals or other animals that might lack a, a mammal-like central nervous system. But it so happens that the science as to decapods is very clear. I wouldn't rule out the fact that other species could one day meet that standard based on maybe methods of scientific analysis that we don't have available to us now. But right now we have to deal with the scientific consensus as we find it.

Mariann Sullivan: That is such a classic comment. It's like, well, it's not up to Asher Smith, whether they're sentient or not. It's not up to the DA whether there's, it's up to science and, uh, so the fact that we, it sounds ridiculous to us is just, you know, meaningless. Like, things change. It's, you know, we think about this stuff all the time, but clearly they don't.

Um. I, that's kind of, I, I feel like I've covered the arguments, but if I haven't, uh, let me know. We're, you are currently awaiting decision, right? And we were a little worried that the decision is going to come actually before people even get a chance to listen to this. So, uh, that could happen. But, um, have I covered all the arguments that are now pending before the court?

Asher Smith: You know, there's one more really funny one. I, I, I think your listeners might enjoy, um, because defendants actually took issue with the length of the complaint.

Mariann Sullivan: I did see that! Yeah, I didn't bother bringing it up..

Asher Smith: It's just so funny to me because it's not actually a particularly long complaint. It's about 30ish pages. And what the complaint does is, is it is a speaking complaint, it explains things, uh, both for the court and members of the public. Obviously all court proceedings are open to the public and we encourage people to be curious about what we're trying to argue the law should protect. And the complaint explains things like the state of the relevant lobster science, how that interacts with Maine cruelty law and, and what they're copying... it's kind of funny actually, is, is an argument they saw deployed against, uh, Donald Trump in an 11th circuit

Mariann Sullivan: Oh, right. Yeah. Yeah.

Asher Smith: Yeah, if, if any of your listeners have practiced in the 11th circuit, they have very idiosyncratic rules around what counts as overly verbose shotgun pleading. Um, but they're using that to argue that, oh, you. If, if you do any more than the bare minimum notice pleading, that's not okay. But, but that's not how this works.

It, it's our complaint. We're entitled to lay out our theory in detail as, as long as it's all germane to what we're trying to do here, which is educate the court and the public about just how firm the scientific consensus is and just how egregiously the lobster festival's conduct violates main law.

Mariann Sullivan: Yeah. I mean, 'cause their argument wasn't that, that things in the complaint were irrelevant or, or padding or, I mean, why would you wanna make it longer than, than it had to be? It was just that, it's just too long. So funny. Um, though, you know, I think we should have sympathy, you know, as animal lawyers. Not that I do this, but uh, so that'll be up to you and, and others who actually practice when you go into, um, a certain jurisdiction, it's all new to them.

Um, and it probably does come as a little bit of a shock sometimes that we actually have good arguments and they actually make sense. It must be upsetting. Alright, speaking of arguments, oh, did you wanna add something?

Asher Smith: No, I, I was just gonna say it's exactly like you said, we, we have good arguments that might not be intuitive to people who've never thought about these issues before. So that's exactly why we lay them out in the opening, pleading.

Mariann Sullivan: of course, of course. And, and you know, as you pointed out, your argument is based on science, and you don't, you can't just like, just say it's true. You wanna lay out some of the evidence for it. Uh, so you don't sound ridiculous to people who don't understand that the science has advanced. All right.

Uh, as I promised in the beginning, we wanna catch up on this case that you previously were on the podcast to talk about on episode 94.

And I have down that the, I, I'm not sure how you say the title of this case. Is it P. Poe 5 versus University of Washington? Is that how you say the caption?

Asher Smith: Yeah, I, I, I think that'll work.

Mariann Sullivan: All right. It's weird. Um, alright. I highly recommend that if you haven't listened to that episode or you know, it was a while ago, so if you've, um, if you've forgotten about it, uh, don't recall it, that you, you might wanna go and listen to it, but, but in case some people don't want to, um, do that right now, can you just quickly recap what had happened so far when last we talked? Um, I believe the case had reached the point of, of a preliminary injunction being imposed, and you were in the process of contesting that in the ninth circuit.

Asher Smith: Sure. So I think the last time we had spoken, we had just gotten the second of, at that point, two ninth circuit decisions, throwing out preliminary injunctions granted to plaintiff. Plaintiffs were members of the University of Washington Institutional Animal Care and use Committee who are responsible for approving every experiment that takes place on animals at the University of Washington, including at their National Primate Research Center. And what those, um, initial ninth circuit decisions and preliminary injunctions focused on were, were basically issues under the First Amendment, that plaintiffs argued they had a right to anonymity because they worked in such a highly contentious field.

The ninth Circuit dismissed that pretty easily. That's just not how the First Amendment works. Um, second time around, we got it kicked on standing because actually, um, pretty much all of these IACUC members' names had already been revealed to PETA or publicly through one way or another, including amusingly, for these people who are trying to argue it would place their safety at risk, um, they disclose it themselves publicly in speaker bios, LinkedIn pages, and anywhere where it could be advantageous to them.

Mariann Sullivan: It was, uh, as I recall the interview, uh, the arguments were sort of ridiculous. Um, and for those who aren't familiar, we're talking about the Institutional Animal Care and Use Committee, which is a, you know, a set up under the Animal Welfare Act at, at places that do animal research. And these people who wanted to keep their identity secret, uh, and, and their arguments were a little, I mean, as you just pointed out, there were, they weren't great arguments by any means.

Asher Smith: I, I think one that I highlighted last time was, um, a through line throughout all their papers was essentially people call us Nazis. Um, and what

Mariann Sullivan: No, this was classic. This was just classic.

Asher Smith: Again, I, I can't stress this enough. I know I stressed this last time I was on, you are allowed to call government officials Nazis. If, if

Mariann Sullivan: Right, right.

Asher Smith: That's your opinion, the protects that opinion.

Mariann Sullivan: But.

Asher Smith: But actually pretty much all the quotes they had referring to them as Nazis or making Nazi illusions, um, was a, a kindly, elderly, retired former UW professor who shows up at, at the IACUC meetings to, to speak on behalf of the animals. And he wasn't accusing them of being Nazis. He was just reciting a famous aphorism by a nobel poet laureate, Isaac Bashevis Singer, to the fact that to animals everything is Treblinka, is, is, is I believe how it goes.

So that didn't fare them particularly well. But what we got after, um, these ninth Circuit decisions was they tried to have another go at it.

Mariann Sullivan: Yeah.

Asher Smith: In another court now, at another Western District of Washington Court. What they're arguing is basically that there's a constitutional informational privacy right to this information being secret, which is basically a kind of circular argument because they take steps to keep the information private, therefore it should be legally considered private and not public to disclosure if they could allege a of what they call harassment. Um. They got a quickie preliminary injunction on that. We appealed to the ninth circuit again, this was the very end of 2023, beginning of 2024, we won a ninth circuit decision the ninth circuit just explained that that's not how informational privacy law works either. Um, it's one thing to protect information like social security numbers or things that are paradigmatically sensitive. It doesn't extend to protecting just the mere fact that someone is employed in government service in some capacity. Um, and if, if you'd like, I, I'd be happy to go a little bit into that in more detail and, and the steps

Mariann Sullivan: Yeah.

Asher Smith: because it, it really was fascinating to see how the Ninth Circuit received this. We got some help from the fact that one of the judges, um, Judge Lee reached into the factual arguments a bit during oral argument and, and actually commented a few times that all these supposed examples of harassment, it sounded a lot like protective speech. What, as a judge I'm sure he's experienced, is that this is more or less the price of public service. People are allowed to criticize you.

Mariann Sullivan: Right. Criticism and harassment should, should not be the same thing.

Asher Smith: Exactly. And at that point, so we're back down at the district court now, um, they have to make a case of their remaining safety related theories. It might seem like a tall order given both the ninth circuit's decision on informational privacy law and the oral argument commentary on the other causes of action. They had one more trick up their sleeve. They actually canceled a meeting of their IACUC last December saying there are now safety concerns. What was that? And, and this is where we, we kind of took a new tack with these cases. We tried a new strategy, which is instead of just waiting passively to see how they would frame arguments for a TRO and preliminary injunction, we told them, oh, okay, at this, at this point we need discovery.

We need to investigate what you're actually experiencing, we need to understand this for ourselves. So we initiated this process of, of unilateral offensive discovery to figure out what happened there. And, I, I mentioned before how examples of their claimed harassment and threats would, would fall apart.

That's basically what happened here again, um. A fact of litigating these cases is that we're up against institutions that start off with a lot of credibility with courts, with the public generally, with media. It could take a lot to make courts skeptical of them. Uh, courts before in this case, hadn't wanted to engage with our factual arguments that essentially, Come on there's nothing to see here. These people are being histrionic and ridiculous. But we finally found smoking guns through this discovery, including things like their emails and Slack communications. And the reason they canceled the meeting was they got a very cryptic email from an anonymous member of the public that sounded like a, a kind of public records request asking for, a roster of who sits on IACUC. And what we found in their slack is that in the process of ginning this up into something and saying, Oh, thi this is the safety concern, we're finally at risk, is that the Iacuc chair who had previously been the one to submit all the prior declarations explaining how scared they were explaining the dire straights they were in a slack message, said, oh, now I'm a little scared for the first time. Which, which our judge honestly seemed very annoyed by. He quoted that Slack message and, and seemed pretty miffed that they had used his court for so many years, at this point, to pursue arguments that I guess in the past didn't leave them scared.

Mariann Sullivan: Exactly like this is after years of litigation. This is the first time you actually are scared when you've been arguing you're scared the whole time? That is. That is, it would annoy me. That would annoy me.

Asher Smith: Yeah, I mean, for federal judge speak, talking about, you know, fairly important government officials to say that, IACUC chair's declaration did not seem to actually correspond with reality is, is pretty damning,

Mariann Sullivan: Yeah, no, that's pretty strong language.

Asher Smith: Yeah, and, and. If, if you'd be interested in where this went from here, we were actually were able to use this going forward. Um, at that point we won the preliminary injunction. We had an entitlement to all the records that mentioned IACUC members that were being withheld as a result of the litigation. Um, at that point, because there'd be no preliminary injunction, there really was no case in it for plaintiffs, the information would released.

Mariann Sullivan: Once you lose the preliminary injunction, you know it's over.

Asher Smith: Exactly. So, so they agreed to drop that case. Um, after some more letter writing, we get all the Iacuc records that we were seeking. And after that we actually wrote to them again, we wrote to the Washington Attorney General's office who, uh, was representing, um, UW in this case. And we wrote to them that basically, look, we we're prepared to keep litigating this. Um, Washington has an open meetings law that forbids meetings of government officials doing public business to happen in secret. We think, especially given the language of disciplinary injunction decision plus all the ninth Circuit commentary on this issue, there's no argument that what's going on here isn't paradigmatically newsworthy, that it isn't something that the public has a right to know. And any justification that member names could be secret during meetings or in their public records they're creating about these meetings fell apart if they ever existed in the first place. And lo and behold, within a matter of weeks, they, they totally surrender that issue. The IACUC actually now holds their meetings fully in public.

The names are revealed. Uh, the meeting minutes reveal the names if you were to do a public records request for the appointment letters, uh, the ones created now would use full names. It, it, it really is a complete and total victory because we were able to finally get the better of them in district court.

Mariann Sullivan: And could you go into a little about what you found out about the, the, what might've been the real reason that they didn't want their names, um, exposed, uh, and who, who was on the Iacuc? Because the IACUC has, has specific rules about who's supposed to be on it, and it's supposed to have non-scientist members and unaffiliated members.

And can you just go into a little about who actually was or is on this iacuc, um, under those classifications?

Asher Smith: Sure thing, and that was really one of our theories of the case from the start. Aside from the fact that they don't want to be criticized, they think it should be illegal to criticize them more or less. It seemed to us like they were really trying to make it impossible for the public to piece together the entire roster of the iacuc in any given moment, which is what's necessary to figure out if the iacuc is legally constituted. Like, like you mentioned, like I think we talked about a bit the last time I was on, institutional animal care and use committees are required to have several different specific members under NIH regulation and, and, and under legislation and as elaborated by guidance. That's a chair. They have to have a veterinarian. They have to have members who are sufficiently familiar with the science. They also to have members who represent basic community interests in animal welfare. So one way that, um, regulation and guidance does that is by explaining the need to have a non-affiliated member. Um, the language NIH uses is actually someone with no discernible ties to the institution. So they're not bound by a sense of institutional momentum or inertia to just rubber stamp things. Also a non-scientific member. And that's where the legislative intent and the language of NIH gets so interesting because they really do suggest that in good faith this is supposed to be someone with, the language they use literally, a naive attitude about science. Um, they suggest clergy members, lawyers, ethicists. Now what UW does, and we were able to piece together, um, at least a 29 month period, uh, between 2020 and 2025, during, which by the way, the Iacuc had approved something like 1500 experiments on, on animals. Is that during those 29 months, all of their non-affiliated members, all the members, they could reasonably argue were, would be non-affiliated or non-scientists were, were, insiders. That they were people who were either for non-affiliated purposes, couldn't qualify, shouldn't be able to qualify because they were recent former employees. They were donors. They currently worked at institutions who had ongoing scientific collaborations with the University of Washington or the Primate Center. Really far from no discernible ties and, and the non-scientist story is actually all the more egregious. I mean, we know from discovery in this and other cases, that this an issue that, nationwide and regional industry lobby groups for animal experimentation were super invested in and interested in. Um, and it turns out that UW had been filling their non-scientist positions with high level officials at the Northwest, um, Association for Biomedical Research. Um, N-W-A-B-R, um, folks might be familiar with NABR, which is the national group that served a similar function, um, for a while still on the iacuc.

Um, their non-scientist member, one of them was the Executive Director of this organization. Who would literally, as his job, lobby for the, public to support animal experimentation at the University of Washington. Um, another non-scientist member, um, also a member of the board at N-W-A-B-R and was actually for a long time, head of UW's, um, Office of Animal Welfare, nice name, but what that office actually was, was it was more or less, uh, the support infrastructure for the IACUC. What, what would basically tether the iacuc to the rest of the university infrastructure. So not remotely ethicist, clergy members, people who...

Mariann Sullivan: members, their suggestion was clergy members. Yeah, it's, I mean, it's so sordid you can hardly believe it. And yet the more you do animal law, the more you can believe almost anything. Uh, it, it's, it's just extraordinary what you manage to find out. And, you know, one can't help but believe that their, their very, very, uh adamant insistence, um, keeping the identity of these people secret had, may have had something to do with this. In fact, I think the last time you were on, before you actually had these names, you mentioned that you figured the committee might be stacked with insiders. Well, you're vindicated once again.

Asher Smith: Exactly. It really is just so nakedly corrupt and, and again, PETA's underlying motivation for all this was UW is one of the most important institutions in country when it comes to animal experimentation.

Mariann Sullivan: I'm not sure people appreciate that, that UW is huge, huge in animal experimentation.

Asher Smith: Exactly. And, and our question for the Iacuc was why are they so bad at their job? They, they had actually been cited before as serving basically as a rubber stamp. Actually very recently, um, the, the Primate Center is a whole ball of wax by itself, PETA before they had appointed a recent new head of the primate center had pointed out, look, this person in her, her prior career at another institution was suspended for how she treated animals, how, how irresponsibly she handled

Mariann Sullivan: Oh my God, my God.

Asher Smith: experiments and they just covered their ears, didn't want to hear it. Lo and behold, within a pretty short period of time that, that they actually have had to suspend that person from using animals at UW, that person is no longer the head of the, of the primate center at UW because lo and behold, the exact same thing happened. She used animals in a way that they couldn't even sweep under the rug.

Mariann Sullivan: And you have, so you not only brought this to light and, and had these, um, these improvements, uh, made, but you're also, you're, you're not just complaining about the future of the committee, but you're also going after some of the decisions that were made or all of the decisions that were made, I don't know, while, uh, while these people were purporting to be legitimate IACUC members.

Is that right?

Asher Smith: That's exactly right. So I previously mentioned, um, a 29 month period, and, and that's just the period that we're able to public with, say we're a hundred percent certain. We really don't think it was legally constituted during this 29 months. So for that period, uh, we've written to, um, HHS, we've asked them to claw back all federal funds awarded for those months, for those periods, terminate all the grants that the IACUC was responsible for during that period, retract published papers associated with those grants. Suspend or defer the responsible institutional officials and impose civil penalties on university or any people who are responsible for this because again, I, it's not, oh, you didn't follow these regulations, but part of what the U The UW Iacuc has to do in to get its operating grants from the federal government.

Literally the grants that keep the lights on at the primate center is they have to affirm that they have a legally constituted iacuc. So, so it's, it's also affirmative misstatements to the federal government saying, Nope, everything's hunky dory here. um. Animal experimentation lobby group guys. Yep.

They're non-scientists. Yep. Our former employees, donors, collaborators. They have no discernible ties. We're good.

Mariann Sullivan: Yeah. Now, and how else would it ever, I mean, when you think of the amount of effort PETA had to go to, to bring this all to light, how if, if they don't. If there aren't these penalties, even if they seem draconian, which they don't to me actually, but even if they seem draconian, how else will they ever reform?

If there's no, if there's no real reason to, if you have to, if you can just wait for PETA to do unbelievable amounts of unearthing and, and legal work. Uh, and then the only thing that happens is that going forward you have to obey the law. It, it, it's just so necessary that, that there be implications for having... you know, when you think about it.

Like Congress passed this law and all right, I'm not in the mood to say anything really nice about Congress, but they passed this law in good faith and put in these requirements because they knew there were issues here that people care about and they required these, these unaffiliated members and non-scientist members so that there would be even handedness.

And they're just completely ignoring it. And, and if there aren't repercussions, they'll just go on completely ignoring it. So I really hope that is successful. Uh, and I'm just, I'm sure like this case turned out to be, it just every time you lifted another level of it, it more, more, uh, more things emerged that were just truly shocking. And I'm so glad that all of your, all of your worst fears were. Um, I'm not glad that all of your worst fears were vindicated, but I'm glad since your worst fears were true, that they actually did become vindicated. So thanks so much for doing it, um, Asher, and for all the work that PETA's doing and, um, and for joining us today.

Is there anything else you wanna add or before we, before we go?

Asher Smith: I, I just do wanna emphasize again, you, you mentioned what's gonna happen to them. We really do hope that that HHS takes all these steps and there are firm consequences for this, but that's also why it was so important that these decisions established just as, as publicly available precedent, all of this is stuff the public has a right to know. The public should be aware of what's going on in these universities these people should be subject to public criticism. If, if you are in this position and you are just rubber stamping the most egregious torture against animals, at the very least, you, you should face the friction of, at public meetings of the iacuc, members of the public knowing who they're speaking to and making their voices heard and letting you know, this isn't animal welfare.

isn't what the law is meant to require, and it's not how they should be doing their jobs.

Mariann Sullivan: Yeah, absolutely. Well, two amazing cases. Thank you so much for breaking them down for us. Um, we'll be looking forward to hearing, hearing what happens next, especially in that lobster case, which should be soon. You'll get a decision on that. Well, of course. I mean, it might go on for quite a while after that, but you'll get that preliminary decision soon.

And, and for those of you out there, just please remember that we're in our end of year fundraising, um, uh, effort. And right now we have an amazing match so that all listener donations will be tripled. And if, if you're not already part of the flock, we would love it if you would join or just, or just any donation that you could manage.

We would very much appreciate it. I know that times are hard for some right now, and, and, and you know, we, we love to have you listen even if you can't afford to contribute. But, but, uh, if you can, you can go to ourhenhouse.org/support and thank you so much to, of course, to Asher. Thank you for, uh, for joining us today.

And also thank you to Vicki Beechler, Jen Riley and Akbar Kahn for their help in producing the podcast. And thank you to you guys for tuning in.