Ca. Ct: A “Bee” is a “Fish”

Today in “Why People Hate Lawyers” I present the case of Almond Alliance of California, et al v. California Game & Fish Commission in which a California Appeals Court ruled that Bees are appropriately categorized as Fish under a California Ecological statute.

We’ve all heard that bees are endangered. Four different bumblebee species are particularly in trouble in California. That danger mostly comes from the activities of huge agricultural interests. In 2019, the California Fish and Game Commission moved to protect those bees by designating them as endangered, threatened, and candidate species under three sections of the California Endangered Species Act (CESA).

Almond growers, citrus farmers, cotton ginners, and other agricultural groups sued. They argued that the CESA does not allow the Commission to designate any insects as endangered, threatened, or candidate species because insects are not included in the statute’s enumerated categories of wildlife entitled to such legal protections.

The Commission countered, saying that the definition of “fish” in the law can and should cover bees and other similarly situated invertebrates because, in part, it already does in practice. At least one species of shrimp, snail and crayfish are listed under the CESA. The snail involved, the Trinity Bristle Snail, is a land creature that’s never in the water but has been protected under the CESA in the fish category nevertheless.

In 2020, a lower agreed with the agricultural groups holding: “The Legislature that enacted CESA expressed its intent not to protect invertebrates categorically. Furthermore, insects do not fall within any of the categories of wildlife that CESA was intended to protect.”

But the California Court of Appeals disagreed. Finding that the definition of “Fish” in section 45 of the statute includes “invertebrates” and that bees are definitely “invertebrates” so that as far as the law is concerned, bees can be considered fish. Under a liberal construction of the CESA, the court concluded that the word “fish” is a legal term of art that previously included a “terrestrial mollusk” (our friend the Trinity Bristle Snail) under the same definitional section. “Accordingly, a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under the Act.”

The case is a lesson in statutory construction that is important for laypeople , law students and new lawyers to remember: It doesn’t matter what YOU think a word means. All that matters is how the STATUTE defines that word. Two examples come to mind:

(1) In Michigan, the Freedom of Information Law provides open access to public record to all persons. Seems clear. But the Michigan FOIL law defines a person as:

“an individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity [except] an individual serving a sentence of imprisonment in a state or county correctional facility in this state or any other state, or in a federal correctional facility.”

See what they did there, right at the end? A convicted person serving jail time for a State or Federal offense is not a “person” under the FOIL law.

(2) In US v. Maine before the US Supreme Court, the issue was whether States could regulate fishing off the coast of Long Island. The federal government and states didn’t agree on who controlled the Long Island and Block Island sounds. The states wanted control to regulate shipping and commerce on the sounds. The key to the case was if Long Island was, for legal purposes, an extension of the mainland or an island. If it were simply an extension of the mainland, as the states argued, then the sounds would legally be inland bays controlled by the states. If it were, for legal purposes, an island, then the sounds would be considered open waters and be under federal control. I mean it’s called “Long Island”? So how hard could this be? The legal definition of an island for these purposes is a body of land “naturally surrounded by navigable water on all sides.” Well it turns out that the East River near Long Island’s tip was not naturally navigable and had to have been dredged by the Army Corps of Engineers to make it passable to ships. So the states’ lawyers (including my international law professor Myles McDougall) successfully argued Long Island was not an “island” under the law.

Getting back to our Bees are Fish case, the court also noted that the legislature amended the CESA in 2015 — well aware of the 2007 ruling that liberally defined the snail as a “fish” — and declined to limit the definition of “fish.” “Had the Legislature disagreed with this court’s conclusion in 2007 that section 45 applied to define fish as used . . . it could have amended section 45 (or the definitions in the Act) at any point thereafter to clarify its contrary intent. The Legislature took no such action. When the Legislature amends a statute without changing the statute in response to a prior judicial construction, it is presumed the Legislature knew of the interpretation and acquiesced to it.” That’s called “legislative (or in the case of federal law), congressional, silence.” Its a maxim of statutory construction. There are others, mostly in Latin.

The point is that while non-lawyers may see a decision stating that a “Bee” is a “Fish” as an example of lawyering gone mad, its really a lesson in how to interpret a statute. And a reminder that all that matters is how a statute defines each and every term in its language.

It reminds me of my favorite quote from Alice in Wonderland exhibited below:

Here endeth the lesson. The case can be found here:

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One reply on “Ca. Ct: A “Bee” is a “Fish””

Excellent analysis. The trick of government is in allowing people to “see themselves” within law for government. Illusions are aided early by perceived benefits of inclusion. Consider the cleverness of the preamble phrase “we the people”, followed by a short list of perceived benefits, and ending with a “king like” ordination assertion. One can skip from the phrase “we the people”, directly to their last page signatories. The rest of the document essentially outlines law for government. What territory could they in Art VI make “the supreme law of the land” for– with the exception of the territory awarded to the confederacy, the United States of America?

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