A "fish" need not be "connected to a marine habitat" after all.
You remember that classic lawyer joke?
A company is on the hunt for a new CEO and decides to undertake the search from within existing management. The hiring committee schedules interviews with the company engineer, the company accountant, and the company lawyer. The committee calls each candidate into the boardroom and asks a single question: "what is two-plus-two?"First up, the engineer. After doing calculations on a slide rule [this is an older joke, you see] and scratching figures and equations with a pencil and paper, the engineer proclaims, "What is two-plus-two? I can say with a 99% level of certainty that two-plus-two is 4, out to the fourth decimal place."Same question to the accountant, who after consulting the actuarial tables, the IRS's schedules for mileage reimbursement, and the latest interest rates, responds, "What is two-plus-two? Two-plus-two is 4, subject to a 5% discount for net-30 payment."Finally, the company lawyer. Checking around to make sure no outsider is within earshot, he closes the boardroom doors and walks to the head of the table and whispers:"What is two-plus-two? ... what do you want it to be?"
All that is prelude to the California Court of Appeal's opinion in Almond Alliance of California v. Fish & Game Comm'n, No. C093542 (May 31, 2022), which reminds us of the joke's punchline. Because in that case, the court held that bumblebees qualify as "fish" under the California Endangered Species Act.
You read that right, folks: bees = fish. What do you want 'em to be?
Now before you start writing us to point out that the court wasn't smoking medical cannabis and didn't just pull this one out of thin air (it was interpreting the statute's definition of "fish," which, we must acknowledge, is very poorly drafted because it includes "invertebrates" within the definition of "fish" -- and yes, bees do not have backbones), please keep in mind that the court wasn't required to check common sense at the door either.
So here's the setup: the Fish (ha!) & Game Commission designated four species of bumblebee (the Crotch bumble bee, the Franklin bumble bee, the Suckley cuckoo bumble bee, and the Western bumble bee, if you were wondering) as endangered. The California statute can be employed to designate "[c]ertain species of fish, wildlife, and plants" as either endangered or threatened. Bees ain't "wildlife" or "plants," so to be covered by California's Endangered Species Act, they must be "fish," right? And the statute defines "fish" as "a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals." Cal. Fish & Game Code § 45.
But bees aren't fish, are they?
Almond growers and others certainly didn't think so, and challenged the designation in court, arguing that although bees are indeed invertebrates, they certainly are not fish. Guess what? - the trial court agreed that the inclusion of "invertebrates" in the definition of "fish" includes only, you know, "invertebrates connected to a marine habitat, not insects such as bumble bees." Slip op. at 17.
The Court of Appeal was having none of this. Pick up the opinion at page 19 if you want to really savor the court's reasoning. See slip op. at 20 ("Our task is to interpret the term fish as used in section 2062, 2067, and 2068 of the Act."). Lovers of the canons of statutory interpretation will appreciate this part of the opinion, as the court somehow navigates the rocky shoals of that method of analysis. Those of you who, by contrast, may believe that the canons of construction are mostly bunk -- tools that can be manipulated in any number of ways to justify post hoc any desired reading of a statute -- will likely conclude that this is "Exhibit A" in your indictment of Professor Sutherland.
And aren't bees ... insects? That was the conclusion of the California Attorney General, who opined that insects are ineligible for listing under the statute because insects are not included in the covered species. But the court concluded that this was "less persuasive," even though AG opinions are "entitled to great weight." Slip op. at 24. Let's just say that the court concluded that indeed "fish" includes "invertebrates," and indeed bees don't have no backbones.
"Connection to marine habitat" got nothing to do with being a fish, held the court of appeal. Indeed, "any" invertebrate will do: Ladybugs? Yes! Scorpions? You bet! Black widow spiders? Naturally. Banana slugs. Of course! Butterflies? Duh.
A fish.
Now yes, we're having a bit of fun at the expense of what to the legally-untrained eye must seem like a conclusion worthy of Twitter mockery (and Twitter analysis). A bumblebee is a fish? Come on, man! We expertly trained lawyers (unlike the great unwashed) know that context is everything and the court wasn't really concluding that bees are fish in the real world, only in the world of the California Endangered Species Act:
Although 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 section 45 is not so limited.
Slip op. at 2.
But seriously - don't you think that if the lege had meant to include bees and other insects in the statute's scope, it might have -- just maybe -- thought to include the term "insect?" And that to shoehorn bees into the definition of fish -- which every fiber of our being screams out is just plain goofy -- may also have the unfortunate consequence of lessening the majesty of the law in the eyes of anyone paying attention? And in that vein, we end with a quote from Dickens' coincidentally-named Mr. Bumble, quoted by no less a light than a current Supreme Court Justice:
An ordinary person of common sense would react to the Court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. If that is the law, he exclaimed, "the law is a ass—a idiot." C. Dickens, Oliver Twist 277 (1867).
Collins v. Virginia, 584 U.S. ___ (2018) (Alito, J., dissenting) (cleaned up).
So there it is: a court just said a bee is a fish. With a straight face.
What do you want it to be?
Almond Alliance of California v. Fish & Game Comm'n, No. C093542 (Cal. Ct. App. May 31, 2022)
