Bees are mostly misguided fish critics, say legal scholars

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Law professors say much of the buzz around a California court finding that bees meet the definition of fish has missed the mark and the decision is not as unusual as it sounds.

The California Court of Appeals, Third District, said the California Fish and Game Commission can list bees as threatened or endangered under the state’s endangered species law. This is because the bumblebee, which is a terrestrial invertebrate, falls under the definition of fish under the law, the court said on May 31.

Fish, as a technical term, is not limited solely to aquatic species, Judge Ronald B. Robie wrote for the three-judge panel. He was joined by judges Cole Blease and Andrea Lynn Hoch.

Their unanimous decision inflicted a perhaps stinging defeat on the Almond Alliance of California and other agricultural groups who sued to stop the commission from registering the Crotch, Franklins, Western and Suckleys cuckoo bumblebees. as endangered, which could lead to pesticide restrictions and other habitat protections.

It also quickly rocked the Twitter sphere. Among those who commented on the decision: former Federal Communications Commission Chairman Ajit Pai, Donald Trump Jr., and at least one lawyer who suggested the answer was as simple as a Bumble-branded can of tuna. Bee.

To understand the reasoning of the courts, one must first take a look at the law, said Lawrence B. Solum, William L. Matheson and Robert M. Morgenthau, Distinguished Professor of Law at the United States Law School. ‘University of Virginia.

At first glance, bees are fish seems absurd, Solum said with a laugh. Because no one thinks bees are fish. But that’s not what the court says.

The legal definition of fish indicates that it is a wild fish, a mollusk, a crustacean, an invertebrate, an amphibian or a part, a spawn or an egg from one of these animals. The statute has an implied limitation to sea creatures that lawmakers did not state explicitly, Solum said, which is typical when statutes are hastily drafted.

It’s like the things we say verbally, which weren’t very specific and explicit about everything we say, Solum said.

Here, the court focused less on what the law says and more on the general purpose of the law, also known as finality, according to Solum. The California ESA’s objective goal is to protect species, the courts reasoned, he said, so if bees are fish, then more species are protected.

The courts’ conclusion is not controversial given the methods of statutory interpretation used by California courts, including the state Supreme Court, Solum said. Other state and federal courts primarily take the textualist approach, he said, which focuses more on the text of the law.

What they did is perfectly normal for a California appellate court in a case like this, he said.

LISTEN: The Big Business of Bees

Blame the legislator

Very few people think of bees when they think of fish, said Evan Bernick, assistant professor of law at Northern Illinois University College of Law. People often think of minnows, sharks and other things with gills, he said.

The idea that bees could be identified as fish seemed crazy, Bernick said, but it’s largely folly for which California lawmakers, not California judges, are largely responsible.

The California ESA defines fish in a way that is very clearly broader than the ordinary meaning of fish, he said. If the Legislature was only trying to catch regular fish, it might have stopped at that word, Bernick said, instead of listing molluscs, crustaceans and invertebrates.

The important question here is not whether the court deviated from the ordinary meaning of the word fish, he said, but whether it deviated even further than the legislature itself would have it. did by adopting a definition of fish that is simply counter-intuitive.

unexpected surprise

The implications of the decision go beyond protecting bees, according to Bernick. It speaks more broadly to the extent to which agencies are able to act on broad legislative language to do things that surprise ordinary people, he said.

According to Bernick, it’s one thing to come across a term like carcinogen and not know what it means. But with words like fish, there’s a danger people will assume it carries its ordinary meaning, only to be surprised when a regulator says they face fines, he said.

Since this result is very strange, let’s focus our attention on the main institutional entity to blame for this, Bernick said.

Nossaman LLP represented the plaintiff Almond Alliance of California.

The case is Almond All. of Cal. v. Fish and Game Commn, Cal. CT. App., 3d Dist., No. C093542, 5/31/22.

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