(Reuters) – Lawmakers aren’t “hiding elephants in mouseholes”, the late Justice Antonin Scalia wrote. But what about bumblebees in fish?
Scalia’s point – that courts need clear evidence of legislative intent before green-lighting changes in regulatory policy – strikes me as entirely relevant in a real animal kingdom dispute.
On Tuesday, a California appeals court ruled with conviction that bees are fish. Or at least for regulatory purposes under the state’s endangered species law.
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Call me narrow-minded, but bees…are not fish.
So how did the court arrive at such an absurd result? And one with potentially far-reaching consequences?
Before we dive in, let me say up front that if there ever was an invertebrate worthy of protection, it’s the bumblebee. Not only are they fuzzy and adorable, but they also help make life on Earth possible by pollinating plants. Bumblebees are, well, the bee’s knees.
But that doesn’t make them fish – not if the word “fish” has a consistent meaning.
The dispute began in 2018, when the Xerces Society for Invertebrate Conservation, the Center for Food Safety and Defenders of Wildlife successfully petitioned the State of California to consider protecting four endangered native bumblebee species (including the deliciously named Suckley’s Cuckoo Bumblebee). under the state’s endangered species law.
Bee populations have plummeted in recent years, threatened by habitat loss, disease and pesticides.
One catch though: California’s Endangered Species Act defines candidates for protection as “a bird, mammal, fish, amphibian, reptile, or plant.” The law says nothing about insects.
Insects, however, are invertebrates – creatures without a backbone, as are, for example, crabs, sea urchins, sponges and starfish.
And Section 45 of California’s Fish and Game Code (which is separate from the state’s endangered species law and was expanded in 1969 in response to tidal pool mining) defines the ” fish” as “wild fish, mollusk, crustacean, invertebrate, (or) amphibian. ”
Insects are invertebrates. Invertebrates are fish. Therefore, insects are fish – and can be protected under the Endangered Species Act!
This is the argument the Sacramento-based Third Appellate District adopted, asserting that “although the term fish is colloquially and commonly understood to refer to aquatic species, the technical term employed by the legislature in defining the fish in section 45 is not so limited.”
This means the state “may list any invertebrate as an endangered or threatened species,” wrote Associate Justice Ronald Robie, joined by Justices Cole Blease and Andrea Lynn Hoch.
According to the Center for Biological Diversity, 97% of all animal species on Earth are invertebrates – and apparently now eligible to crawl or wiggle through Scalia’s metaphorical mousehole to be protected under California’s endangered species law. Endangered.
(Question: As a Pisces, can I also get protection?)
Paul Weiland, a partner at Nossaman, who represents a coalition of agricultural groups opposed to listing bumblebees as endangered species, told me that his clients have not yet made a decision on whether to opportunity to appeal.
But he said the opinion greatly expands the boundaries of “what has been understood for years” of the state’s endangered species law. “The court should not close what it sees as a gap in the law,” he said.
Stanford Environmental Law Clinic supervising attorney Matthew Sanders, who represents environmental groups, said in an email that “the California legislature has specifically defined ‘fish’ to include ‘invertebrates’ (and all invertebrates, not just aquatic ones)”. The decision “affirms the clear words and intent of the California legislature: that (California’s endangered species law) extends to invertebrates.”
A spokesperson for the California Fish and Game Commission said it does not comment on ongoing litigation.
The appeal panel reversed the decision of Sacramento County Superior Court Judge James Arguelles, who wrote that a “counterintuitive mental leap is required to conclude that bumblebees can be protected as fish” .
Arguelles also noted that when lawmakers amended the Endangered Species Act in 1984, they removed the term “invertebrates” – which had been included in previous versions – from the list of species covered.
This may be because they thought invertebrates fell under the category “fish”, so it would be redundant or confusing to list them separately.
However, the law specifies that amphibians are eligible for protection – even though amphibians are also “fish” under Section 45 of the Fish and Game Code. Why bother mentioning amphibians if they were already safely settled into the fish family?
The jury of appeal shrugged.
The rule against excess – language that is not necessary – is not “an infallible canon”, they argued. Additionally, if the Legislature disagreed with Section 45’s longstanding definition of fish, it “could have said so or provided a different definition of fish,” the committee wrote.
Farm groups also failed to convince the panel to defer to a formal 1998 opinion from the state attorney general, which argued that insects “are not eligible” for protection under endangered species law.
To me, one of the most compelling arguments from environmental groups is that the Trinity Bristle Snail – a terrestrial mollusc – has been protected for decades under the expanded definition of “fish” in Section 45. .
Weiland told me no one bothered to challenge the designation. Still, state lawmakers probably had no problem protecting the snail in the catch-all category of fish.
As a Californian, I sincerely want bumblebees to be protected. But I don’t think the court can rightly get there by turning them into fish.
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