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So Bees Are Fish Now?

By Steven Ellison, Esq. on June 08, 2022 4:55 PM

Throw out your dictionaries, folks.

According to the Eleventh Edition of Merriam-Webster's Collegiate Dictionary, a bee is an "insect" that differs from wasps "in the heavier hairier body and in having sucking as well as chewing mouthparts, that feed on pollen and nectar, and that store both and often also honey."

Fish are not insects. They do not have hairy bodies. They do not have chewing mouthparts. They most certainly don't feed on pollen and nectar, nor do they store both, let alone honey.

Yet, according to one California court, bees are fish.

Almond Alliance v. Fish and Game Commission

Fifty years ago, the California legislature passed the California Endangered Species Act (CESA). An endangered species is a "bird, mammal, fish, amphibian, reptile, or plant" that is in serious danger of becoming extinct. That law allows the California Fish and Game Commission to designate "any bird, mammal, fish, amphibian, or reptile" as an "endangered or rare animal." Such animals are subject to various protections under state law.

CESA does not define what a "fish" is, but the dictionary does. The very first definition for "fish" in our trusty Merriam-Webster's is "an aquatic animal."

So what do "bees" have to do with "fish"?

Bees Are an Endangered Species

About four years ago, certain public interest groups asked the Fish and Game Commission to designate four species of bees as "endangered species." Not so fast, almond farmers said. Almonds are big in California. The annual almond harvest is about 3 billion pounds. Trade groups believed that endangered species protections would restrict farmers from working around bees (which are necessary to pollinate California's 1.3 million acres of trees) and might prevent the use of certain pesticides.

Despite these objections, the Fish and Game Commission issued public notice of its intent to put the bees on the endangered species list. The farmers sued and persuaded a California judge to find that calling bees fish is a "clear legal error" and an abuse of the Fish and Game Commission's discretion. The commission appealed.

In a unanimous decision, the Third Appellate District of the California Court of Appeals reversed the lower court and concluded that "[a]lthough the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the legislature in the definition of fish [in the statute] is not so limited."

Let's walk through this.

Some Fish, Like Bees, Lack Backbones

The court started with the word "fish." It decided that the word was vague and had been subject to different interpretations over the years. When California legislators originally used the term, they seemed to be referring to seafood generally. Defying proper scientific classification, California law included mollusks (such as clams and oysters) and crustaceans (such as lobsters and crabs), sea-dwelling invertebrates (animals without a backbone), as "fish."

The hook became the word "invertebrate." In 1980, the Fish and Game Commission decided that another invertebrate, a species of snail, was enough of a fish to get state protection. A few years later, a shrimp and a crayfish joined the list.

Which gets us to today. The court of appeals' opinion is lengthy and walks through the history of the statute and its interpretation. But ultimately, the three judges on the panel all concluded that based on the definition of fish and its legal interpretation over the years, any invertebrate — land or sea — was a "fish" and could be designated for state endangered species protection.

What Happens Next?

The ruling only came down on May 31, so the lawyers for the almond farmers are still processing it. We would expect they will appeal. It will be up to the California Supreme Court to decide whether the scope of the Fish and Game Commission's authority is broad enough to allow it to designate any invertebrate, such as worms, spiders, and butterflies, as protected species under California law.

In the meantime, where does that leave us? We now live in a world where bees are fish. Thanks, lawyers.

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