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‘Bees are Fish’ Criticism Mostly Misguided, Law Scholars Say

June 6, 2022, 9:00 AM

Law professors say much of the buzz around a California court’s finding that bees meet the definition of fish missed the mark, and that the decision isn’t as unusual as it seems.

The California Court of Appeal, Third District said that the California Fish and Game Commission can list bees as threatened or endangered under the state Endangered Species Act. That’s because the bumble bee, which is a terrestrial invertebrate, falls under the definition of fish under the act, the court said May 31.

“Fish, as a term of art, is not limited solely to aquatic species,” Justice Ronald B. Robie wrote for the three-judge panel. He was joined by Justices Cole Blease and Andrea Lynn Hoch.

Their unanimous ruling handed a perhaps stinging defeat to the Almond Alliance of California and other agricultural groups that sued to block the commission from listing the Crotch, Franklin’s, Western, and Suckley’s cuckoo bumblebees as endangered, potentially leading to pesticide restrictions and other habitat protections.

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

Understanding the court’s reasoning first requires taking a look at the statute, said Lawrence B. Solum, William L. Matheson and Robert M. Morgenthau distinguished professor of law at the University of Virginia School of Law.

“On the surface, ‘bees are fish’ looks absurd,” Solum said, laughing. “Because no one thinks bees are fish. But that’s not what the court is saying.”

The statutory definition of fish says it means a “wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” The statute has an implicit limitation to marine creatures that legislators didn’t state explicitly, Solum said, which is typical when statutes are drafted in haste.

“It’s just like stuff we say verbally, we’re not super precise and explicit about everything we say,” Solum said.

Here, the court focused less on what the statute says and more on the overall purpose of the statute, also known as purposivism, according to Solum. The objective purpose of the California ESA is to protect species, under the court’s reasoning, he said, so if bees are fish, then more species are protected.

The court’s finding isn’t controversial given the methods of statutory interpretation used by courts in California, including the state Supreme Court, Solum said. Other states and federal courts mainly take the textualist approach, he said, which focuses more on the text of the statute.

“What they did is perfectly normal for a California court of appeals in a case like this,” he said.

LISTEN: The Big Business of Bees

Blame the Legislature

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 can be identified as fish seemed crazy, Bernick said, but it’s “largely craziness for which California legislators, not California judges are, in significant part, responsible.”

The California ESA defines fish in a way that’s “very clearly more expansive than the ordinary meaning of fish,” he said. If the legislature was only trying to capture ordinary fish it could’ve stopped at that word, Bernick said, instead of listing mollusks, crustaceans, and invertebrates.

The important question here isn’t whether the court departed from the ordinary meaning of fish, he said, but whether they departed even further than the legislature itself departed by adopting a definition of fish “that is just wildly counterintuitive.”

Unexpected Surprise

The implications of the ruling extend beyond whether bees are going to be protected, according to Bernick. It speaks more broadly to the degree to which agencies are able to act on “broad statutory language to do things that surprise ordinary people,” he said.

It’s one thing to come across a term like “carcinogen” and be unsure of what it means, according to Bernick. But with words like “fish,” there’s a danger that people are going to assume it carries its ordinary meaning, only to be surprised when a regulator says they’re subject to fines, he said.

“Given that this outcome is very weird, let’s focus our attention on the primary 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 Comm’n, Cal. Ct. App., 3d Dist., No. C093542, 5/31/22.

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com