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Plants and AnimalsA Beautiful Day for Bumblefish?

A Beautiful Day for Bumblefish?

A Beautiful Day for Bumblefish?

A California court just ruled that bumblebees are fish. It’s not as crazy because it sounds.

A California appeals court ruled last week that bumblebees are fish and are subsequently protected by the California Endangered Species Act (CESA). Which will sound ridiculous, but there’s actually a convoluted legal argument to support the court. That argument does justify giving the CESA some extra coverage beyond what we’d ordinarily classify as fish.  Making the statute stretch far enough to cover bumblebees, nevertheless, is a bit an excessive amount of.

The CESA explicitly covers birds, reptiles,  amphibians, and plants, with no mention of invertebrates. The basis of the issue is the way in which different parts of California law fit together.  The CESA is a component of the Fish and Game Code. There’s a definition of fish elsewhere in that law that sweeps pretty broadly. That provision, section 45,  says that “‘[f]ish’ means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” Bumblebees aren’t actually fish, but neither are mollusks, crustaceans, or amphibians.  The court’s argument is that bumblebees are invertebrates (true), that invertebrates are classified as fish by section 45, and that the reference to fish within the CESA thus includes invertebrates and subsequently bumblebees. Got that?

Bumblebees are invertebrates.  The query is whether or not  the “fish” definition in section 45 includes all invertebrates or only people who spend some or all of their lives within the water.  If only invertebrates connected with water are covered, dragonflies could be “fish” because their larvae live within the water, just as tadpoles do. But even under that definition, bumblebees wouldn’t be legally classified as fish.

I believe the argument goes fallacious on the second stage, where the court assumes that section 45 covers all invertebrates quite than simply some. It seems unreasonable to interpret section 45 to cover invertebrates even in the event that they don’t have any connection to water bodies. I’d guess that if we take a look at the Fish & Game Code as an entire, we’d find that almost all of the references to fish check with plainly aquatic settings.  As an illustration, catching butterflies with a net presumably doesn’t require a fishing license. So reading section 45 as a definition applying to the entire Fish & Game Code, it doesn’t make sense to use it to invertebrates that aren’t not less than partially aquatic.

There’s a sophisticated history of disputes about whether invertebrates are protected by California law. In 1980, the Fish and Game Commission classified some forms of butterflies and a snail as endangered. The state office of administrative law, nevertheless, disapproved this interpretation of the law. That dispute was never fully resolved inside the executive branch. In 1984, the precursor of the CESA was repealed and replaced with the present law. There’s good evidence that at the moment, the legislature was aware of the Fish and Game Commission’s view that the CESA covers invertebrates.

The court of appeals relied partly on section 45’s definition of fish and partly on the 1984 reuse of the definitional language of the 1970 precursor law. It viewed the reuse of that language as approving the Commission’s interpretation.  The 1984 law also explicitly covered any species that had already been listed under the precursor law, which included one species of terrestrial snail. Finally, the court relied on what it considered the legislature’s purpose and construed the law in favor of expanded coverage.

The legislature’s use of the identical language within the CESA as in its predecessor  does carry some weight, given the Commission’s broad interpretation of the sooner law. Still, it’s at all times a bit tricky to determine how much a legislature really understood about existing legal interpretations and the way much it was ratifying them in latest laws. What really drives the court’s opinion, nevertheless,  appears to be the will to resolve doubts in favor of the CESA’s purpose of protecting endangered species.

The court’s interpretation of the CESA isn’t untenable, but it surely’s undercut by three necessary facts:

  1. The word “fish” isn’t a technical term. It’s not at all times used the way in which a biologist would, but it surely has extremely strong associations with water in each common and scientific usage.  It’s less likely that the legislature would redefine such a standard word to have a meaning that’s unrelated to its normal understanding than that it could redefine a more technical term or one whose connotations were less powerful.
  2. Section 45 isn’t a part of the CESA. It applies to the entire Fish & Game Code, where the broad reading to incorporate all invertebrates generally is unnecessary. If section 45 were a part of the CESA and tied to the aim of protecting endangered species, the court’s argument could be stronger.
  3. The pre-1984 interpretation of the CESA to incorporate all invertebrates wasn’t clearly established.  The 1984 legislature wasn’t given clear and consistent details about how the CESA had been interpreted before its reenactment. Nor were the relevant executive branch actors themselves in agreement prior to 1984. And no court had ever ruled on the difficulty.

Taken together, these considerations counsel against the court’s legal interpretation.  As an environmentalist, I couldn’t agree more with the choice to guard bumblebees. But as a lawyer, I believe the most effective interpretation of section 45 is that it covers only aquatic or partly aquatic animals, and that the identical definition applies to the CESA. That will leave some insects like dragonflies covered by the CESA, but only those with an aquatic connection.  That wouldn’t include bees.

Fortunately, bumblebees are clearly covered by the federal ESA, so the result wouldn’t be to go away them without legal protection.  Nevertheless, the California legislature really should eliminate any doubt and expand the CESA to incorporate insects, or on the very least, plant pollinators like bees, butterflies, and moths.

endangered species, states, statutory interpretation


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