Tuesday, May 31, 2022

Almond Alliance v. Fish & Game Commission (Cal. Ct. App. - May 31, 2022)

I think you'll like this one.

We all know about endangered species, right? We want to protect them. We don't want to make lots of animals extinct. That's a given.

You're probably generally familiar with the federal Endangered Species Act. That federal law allows the federal government to declare a species as endangered, which entitle that species to various protections. Which endangered species can the federal government protect? Basically, any of them. The federal law (smartly) says that the species that can potentially be listed are "any member of the animal kingdom, including, without limitation any . . . arthropod or other invertebrate."

The California Endangered Species has a similar focus, but is much less well-known. It operates the same way: California can declare certain species endangered, and then they obtain various protections.

But unlike the federal law, the potential coverage of the California statute is -- probably accidentally -- not essentially unlimited. It doesn't cover "any member of the animal kingdom" like the federal law. Rather, it lists the various categories. Super broadly, mind you. But there's nonetheless a list. The California statute says that the state is allowed to list as endangered any "native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant."


So that brings us to the present dispute.

Can bumble bees be listed as endangered in California?

Let's go through the list. Bees aren't birds; those are different. Bees for sure aren't mammals. Bees certainly aren't fish. Bees are obviously not amphibians or reptiles. And bees definitely aren't plants.

So they can't be listed as endangered, right? Because there's a list, and bees don't fall under any of the items in the list.

That's what the trial court held.

You may be saying to yourself: "Well, the Court of Appeal probably just held that the list set forth various examples and was non-exclusive." Nope. That's not what it found.

Rather, the Court of Appeal said that bumble bees were on the list. That they were inside one of the groups on the list.

Which one do you think the Court of Appeal held encompassed bumble bees? As a reminder, here are your choices:

A. Birds.
B. Mammals.
C. Fish.
D. Amphibians.
E. Reptiles.
F. Plants.

Pick one. Which one do you think the Court of Appeal thought included bees?

Let's even make it more fun. Rank 'em in order. Which is the most likely to include bees, in your view, and which is the least likely, and which ones (in order) are in the middle?

With this hint: I'm going to spot you "Plants." Obviously bees aren't plants. So if you had to choose which one bees fall into, which one would you choose, and then rank the other ones from the most plausible to the absolutely least plausible. Got it?

Okay. Done yet?

Don't cheat. Okay, let's see where the Court of Appeal's ultimate holding comes out on your list.

The Court of Appeal held that bumble bees, under this list, are . . .





Where was that one on your list?

Now, mind you, there's a definition of "fish" in a different statutory section. And that definition says "'[f]ish’ means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals." And the "invertebrate and amphibian" part of that definition was added in 1969 fairly clearly because California wanted to be able to cover "starfish, sea urchins, sponges and worms," which might not technically be a "fish, mollusk, [or] crustacean," so we added those things.

But you'll notice the basic point here, right? All these things are in the water. Because, after all, we're defining the term "fish". 

So if you're asking me whether, for example, jellyfish are covered as "fish" under the statute, I'd have to say "Yes," even though they're technically not fish, since they're aquatic invertebrates, and invertebrates are now covered under the statute.

Justice Robie essentially uses the same argument to conclude that bees are fish as well. Because bees have exoskeletons. Which means they don't have a spinal column. Which means they're invertebrates. And since the definition of fish includes invertebrates . . . .

Bees are fish.

I've shortened and simplified the Court of Appeal's analysis, but that's essentially where and why the opinion comes out the way it does. There's a lot of discussion of legislative history and the like, as well as talk about the various amendments, but needless to say, there's not a lot of express discussion by the Legislature about whether bees are fish.

I've written at various points about the upsides and downsides of textualism, and how one (in my view) properly interprets statutes.

Add this one to the list of facially bizarre results.

So whatchathink? Convinced that bees are indeed fish?

(By the way, I'd have facially thought that -- if I had to choose -- "bird" would have been the closest one to bees. So I looked up the definition of "bird" in the relevant statute, which super helpfully defines  the word "bird" as "a wild bird or part of a wild bird." You get my sarcasm there, right? But apparently the common definition of bird, according to most sources, is a warm-blooded feathered vertebrate. Bees, by contrast, are invertebrates (as mentioned) and are also cold-blooded. So "bird" doesn't work. That's why "fish" gets the nod.)