Animal Law

Court Says Bees Are Fish

The endangered California bumbletrout

Though this headline is short, some may still believe it is, to some extent, an exaggeration for comic effect. Without conceding that is true, or indeed that I have ever done such a thing, if I were doing it here the exaggeration would be minimal:

The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish….

Almond Alliance of Cal. v. Fish & Game Commission, No. C093542, 2022 WL 1742458 (Cal. Ct. App. May 31, 2022).

That was the issue, and the court held that it does.

Let me try to explain WTF was going on here, and maybe more importantly who’s to blame for the completely insane result.

The dispute in this case was whether the California Fish and Game Commission had the authority to designate four bumblebee species as candidates for the endangered-species list. The opinion does not discuss the consequences of such a designation or why it was disputed, but I am guessing that either it would limit the property rights of California almond growers in some manner or there is a group of people named “Almond” in California who really *#&%ing hate bees. Possibly both. But the only issue the opinion discusses is whether the Commission had statutory authority to do this.

For that to be true, the bumblebees had to fit within the definitions of “endangered species” or “threatened species” found in the California Fish and Game Code. And that means they would have to be “native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant.” Cal. Fish & Game Code §§ 2062, 2067, 2068. Well, bumblebees, like all other bees, are insects. This means they are not birds, mammals, fish, amphibians, reptiles, or plants. The end.

No?

This opinion is somehow 35 pages long?

Yes.

To understand why, we apparently must go back many decades and start with the California Legislature’s original definition of “fish.” (Don’t worry, this won’t make any sense eventually, either.) Back then, the Code defined “fish” as “wild fish, mollusks, or crustaceans, including any part, spawn, or ova thereof.” Are mollusks fish? Nope. Are crustaceans fish? Nope. So is there already a problem? Yep.

In 1969, the Legislature decided to expand the Commission’s authority to include amphibians. Did it do so by narrowing the “fish” definition to fish and then adding one for amphibians? Nope. It just stuck them in with the fish. And then in 1984, it wanted to add “invertebrates.” Did it take this opportunity to straighten things out? Nope. In they went. And this is how we got the statute that the Court of Appeal was interpreting in the Almond Alliance case. It now says this:

“Fish” means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.

Cal. Fish & Game Code § 45.

So the definition of “fish” now includes even more things that aren’t fish, including entire categories of things that aren’t even vertebrates like fish are, in addition to the mollusks and crustaceans that are also invertebrates but for some reason are still listed separately unlike all other invertebrates. But it doesn’t include insects.

Or does it?

See, insects are invertebrates. Specifically, they’re in the category of “invertebrates that aren’t mollusks or crustaceans,” which is not to say that’s a category recognized by anyone but the California Legislature, because it isn’t. But insects are definitely in that category, and that means bees are in it.

Or maybe they’re not.

Because what we now have to figure out is whether the California Legislature intended to include invertebrates that don’t live in water in the definition of “fish.” As you may have noticed, everything else in the list is something that lives in water, at least if you don’t think too hard about amphibians. This of course would make sense because this is, after all, a definition of “fish,” which definitely live in water all the time (except when they are jumping unless they are lungfish, which walk or at least creep a little). So, DOES THE CALIFORNIA LEGISLATURE THINK NONAQUATIC INVERTEBRATES ARE “FISH” IS THE REAL QUESTION HERE, and also possibly the reason you just tore up your law school application, for which I commend you.

To answer this question, the court had to go back through decades of legislative history in an effort to figure out what the hell the Legislature was thinking. And while it was mostly thinking about water-based critters, this was not always true. In 1980, the Commission decided certain butterflies should be on the endangered list, and also the “Trinity bristle snail,” which is, the court notes, “a terrestrial gastropod that is both a mollusk and an invertebrate.” (I forgot about snails when writing the paragraph above, but I’m not going back.) But someone objected, for what seems like a pretty darn good reason: “Mr. Livingston contended that insects are not fish[.]” The Commission did not necessarily agree with this outlandish position, it seems, but the butterflies came off the list. Since then, there has apparently been an ongoing debate about whether insects are fish in California.

But, remember, four years after the butterfly crisis, the Legislature added “invertebrates” to the definition. Insects are invertebrates. And this didn’t seem to be limited to aquatic beasts, the court held, because of that goddamn snail, which is terrestrial. Nobody had ever complained about it being on the list. If the Legislature cared about the aquaticness of invertebrates, the court seems to have reasoned, it would have done something about this, but it didn’t. Therefore, nonaquatic invertebrates can be on the list, and that’s what bumblebees are.

This is why, at least for purposes of California’s section 45, bees are fish.

If you want more, there’s a wonderful discussion of worms on page 34 of the opinion, but I need a drink.