The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
California Chief Justice on Bumble Bees as Fish (and Statutory Interpretation More Broadly)
Wednesday, the California Supreme Court denied review in this case (for more on the lower court case, see this post by Jonathan Adler and this one by Ilya Somin); Chief Justice Tani Cantil-Sakauye, joined by Justices Carol Corrigan and Joshua Groban:
Our denial of a petition for review does not communicate any particular view regarding the merits of the issues presented in the petition. Thus, all should understand that our decision to deny review in this case is not an endorsement (nor is it a rejection) of the statutory analysis undertaken by the Court of Appeal, which determined that bumble bees, a nonaquatic invertebrate, are susceptible to being listed as endangered under the California Endangered Species Act (Fish & G. Code, § 2050 et seq.; CESA) because that statute applies to fish (Fish & G. Code, §§ 2062, 2067 & 2068), and "invertebrates" are included within what the Court of Appeal deemed to be the applicable definition of "fish" (id., § 45) ["Fish" means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals -EV]. (Almond Alliance of California v. Fish & Game Com. (2022) 79 Cal.App.5th 337, 341.)
Yet if experience is any guide, our decision not to order review will be misconstrued by some as an affirmative determination by this court that under the law, bumble bees are fish. A better-informed observer might ask: How can the court pass up this opportunity to review the Court of Appeal's interpretation of the Fish and Game Code, which seems so contrary to common knowledge that bumble bees are not a type of fish? Doesn't this clear disconnect necessarily amount to "an important question of law" (Cal. Rules of Court, rule 8.500(b)(1)) warranting this court's intervention, because the Legislature could not possibly have intended such a result?
Were things always that simple. Careful analysis of a statute to divine legislative intent can sometimes yield results that might seem surprising at first blush. Courts engaged in this task have interpreted "less" as "more" (Amalgamated Trans. Loc. 1309 v. Laidlaw Tran. Ser. (9th Cir. 2006) 435 F.3d 1140, 1146) and "unlawful" as "lawful" (Scurto v. LeBlanc (La. 1938) 184 So. 567, 574). Long ago, the United States Supreme Court concluded that the "seas" referenced in one statute required no water at all (Murray's Lessee v. Baker (1818) 16 U.S. 541, 545); quite recently, it determined that a fish is not a "tangible object" (United States v. Yates (2015) 574 U.S. 528, 536).
These kinds of seemingly illogical outcomes can in fact best capture the enacting legislature's intent in a variety of circumstances. A statute may be construed in a manner that goes beyond the literal meaning of its text to avoid an absurd result the legislature could not possibly have contemplated. Sometimes courts perceive a scrivener's error or typo that must be corrected to vindicate the intent behind a measure. Or the context surrounding the use of a word or phrase within a statute can convey that it carries an unusual meaning, peculiar to that law. The Court of Appeal below concluded that the interpretive question before it fell into the last of these categories, with the consequence that bumble bees should indeed be regarded as "fish" under the CESA.
Even if the Court of Appeal arrived at what might superficially seem like a counterintuitive result, that alone does not establish that it erred. Moreover, our decision not to order review here does not prevent us from considering the CESA's reach in some future case, at which time we may agree or disagree with the Court of Appeal's analysis. In the interim, the Legislature is in a position to make whatever statutory amendments it may regard as necessary or useful. For although it may not be exceptional for a court to determine that a particular word or phrase within a statute carries a meaning that deviates from common parlance or understanding, such decisions also can provide notice to legislators that some clarification may be in order.
Justice Patricia Guerrero would have granted review. Thanks to Stephen Newman at Stroock for the pointer.
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
“vindicate the intent behind a measure”
Justice Cantil-Sakauye sounds like one of those awful right-wing originalists.
Why? What should a court do if the legislature makes it a crime to possess rugs when they were trying to make it a crime to possess drugs?
Buy a rug?
That would suck if your rug tied the room together.
That’s not originalism, it’s like the DC court of Appeals in WV v EPA saying the intent of the CAA was to reduce pollution so almost any regulation to reduce pollution was OK, even if the legislation didn’t authorize it.
An originalist court struck it down. The text controls, not the intent, however informative the intent is.
Of course scriveners errors are another doctrine, and a ban on rugs is both a taking, and has no rational basis. But a ban on rugs couldn’t put someone behind bars for a drug offense whatever the intent.
Would future challenges to listings of non-fish as fish go to the same division of the Appeals Court (Sacramento), which would be bound by its own precedent?
“What’s the difference between a fish and a bumble bee?”
“I don’t know.”
“Then I’d recommend you not go fishing.”
I would say they determined that a fish is not a tangible object to exactly the same extent the court of appeal determined that a bee is a fish.
I would have to disagree.
United States v. Yates narrowed the definition of tangible object based on other text in the same clause of the statute.
A fish is a tangible object, but it is not a tangible object used to record or preserve information.
The California court of appeals broadened the definition of fish well beyond anything remotely reasonable and/or rational.
“A fish is a tangible object, but it is not a tangible object used to record or preserve information.”
Oh yeah? What about microfiche? [rimshot!!!]
Nice:-)
Indeed they can!
So that story about bees remembering where the nectar was in order to do their magic bee-dance in the hive *was* too fishy to be true. I knew it!
Sounds like they’ve taken the Robert’s position to jurisprudence.
You mean textualism?
No. I mean kick the can down the road.
There is precedent for recharacterizing species as fish. Beavers and puffins were deemed fish allowed to be eaten on Fridays during Lent because they lived an aquatic life. Two years ago, the National Bishops’ Conference approved of the consumption of alligator on Friday as the beast “is considered in the fish family.” Judges can be ecclesiastical in analysis it appears, language and science be damned.
In that case, bees should be classified as birds.
If a court ruled that the sky is green and not blue would that make it green? I guess so, based on this logic.
A bumble bee is now a fish.
Its one reason respect for the legal institutions continues to decline.
If a court ruled that the sky is green and not blue would that make it green?
No, that would just mean that the legal effects are the same as would be the case if the sky was actually green. Court judgments have no effect outside the law, they are not magic.
How many fish are a bee? I haven’t noticed anyone talking about the ‘part’ part of the definition. If ‘fish’ means “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,” then it looks like (for the purpose of the statute) every bee’s wing and eye and thorax is a fish—perhaps every cell in a bee is a fish. That strikes me as even more absurd, and maybe this absurdity should inform the way the sentence is read.
You’re right. Every bee is a multitude of fish. Every wild fish is a multitude of fish (but not recursively, so unless the parts can be really small it didn’t help Jesus feed the 5000).
A bee? See what you did there?
The rule should be that if the legislative definition differs to much from any other definition, the statute is void for vagueness.
Collect 12 random people off the street, leaving out only the mentally ill or children. If you can’t explain the law or judicial decision well enough to get all 12 to agree on what the law or decision means, void it as confusing. No appeals.
No, get 12 children ~12 years old. If they can’t get the meaning of the statute right, it should be void for vagueness.
Get twelve bees and twelve fish and teach them law.
Why? Expressly spelling out adefinition seems like the opposite of vagueness.
As a bee law hobbyist, this decision is one of my favorites. When I finally retire I plan to write the authoritative bee law book. It will start with a part of Virgil’s Georgic on the theme of bees. Then we will visit the many ways in which the law defines bees. Then ownership of bees. bee torts. Bee contracts.
It’s going to bee amazing!
Sounds like you have a, ummm, hive mentality!
Dedicated to Sherlock Holmes, I hope.
So you find the law of the bee more interesting than, say, the law of the sea?
I don’t know about US law schools, but when I first started studying law in the Netherlands they made us study a whole bunch of these. 45 minutes is an hour, a man with long hair is a woman, etc. Just to hammer it home that the dictionary definition of words isn’t necessarily the end of the matter, when it comes to statutory interpretation. This case is amusing, but it seems like no big deal for anyone who is vaguely educated in the law.
I still think the inferior court’s decision was wrong but this is a very clear and cogent explanation of why a superior court might legitimately choose to not overrule it.
I think the underlying decision was wrong as a matter of statutory interpretation because the law was in the general context of protecting waters and every other item in the list was an explicitly-water-living organism. The interpretation of “invertebrates” in that context as ‘all invertebrates everywhere’ rather than as ‘those invertebrates that live in water’ was implausible.
I agree with the conclusion that judicial “decisions also can provide notice to legislators that some clarification may be in order.”
Legislative partisanism has consequences and such consequences go beyond mere passage of correction of obviously flawed statutes. In particular, at the federal level, the presence of pointless partisanism robs the legislative branch of the control it has over the executive and judicial branches: a Congress which cannot muster 2/3 majorities to override errant actions and cannot muster the even weaker (and long-term weakening) power of impeachment and removal from office is impotent as a check against the executive and judicial branches.
You can blah blah blah all you want. You still can’t justify calling a bee a fish.
Kind of ironic that they mention WOTUS, a poster child for finding an elephant in a mousehole.
Pres. Trump’s antics with respect to classified documents are being juggled by several courts.
Ron DeSantis is flying planeloads of asylum seekers cross-country, in sketchy legal circumstances, to own the libs.
The Attorney General of New York has advanced a lengthy, detail fraud complaint against a former president, his children, and his business (related to a case in which a company executive has pleaded guilty and awaits sentencing after cooperation with prosecutors).
Alex Jones is positioning himself for another reaming, behaving bizarrely on the witness stand and declaring he is “done saying I’m sorry” for his vicious, disgusting, partisan lies about murdered children and their parents.
The House Of Representatives has passed a proposed amendment to the Electoral Count Act.
Georgia is replacing voting machines after concealed and lied-about breaches of security are revealed and documented.
A leading candidate for the Republican nomination for president is posting QAnon messages and playing QAnon music at rallies.
And Eugene Volokh of UCLA directs his audience’s attention to . . . this.
Give a man a fish and you feed him for a day. Give a man a bee and you confuse him for life. Call a bee a fish and you confuse everyone.
They could have written a much shorter opinion which made their meaning a lot clearer:
“We like the result but we’re not touching the reasoning with a 10 foot pole.”
Seems more like you don’t like the result, didn’t want to grapple with the opinion, so you jump to bad faith.
Now Mr. Science is saying bees are fish.
But honestly this is California law as interpreted by California courts according to the California Constitution as interpreted by California standards. It’s beyond any skill of mine to comprehend their path to the result, despite being a native Californian.
Which reminds me that I got a yellowjacket nest to attend to this afternoon.
Why is there so little respect for the law these days?
Fish gotta swim
And bees gotta fly
Decipher the difference
Don’t wanna try
Can’t help lovin’ that court of mine
California government reasoning. The legislature, agencies and courts will adopt and condone whatever is needed to have the greatest government intrusion and regulatory power.
Maybe I’m missing something, but my first impression is that justifying themselves in this way on not fixing this seems worse than saying nothing.
Don’t think “incrementally” classifying a bee as a fish is in any way conservative.
Well then why didn’t they say so?
The answer of course is they intended no such thing.