A California appellate court has ruled that bees are “fish” for the purposes of the California Endangered Species Act (CESA), and perhaps not surprisingly, this has been a headline grabbing decision. For people already inclined to believe that lawyers are sneaky, devious and prone to shameless word twisting in order to reach perverse and self-serving conclusions, this is no doubt another brick in the wall. Yet when put into context, the decision is not only a sound piece of legal analysis, it also demonstrates why lawyers do actually earn their (probably artisan, hand-kneaded sour-dough) bread.
Understanding and applying legal principles does actually require training and knowledge, it isn’t just a matter of reading a set of instructions and applying them, and we are at pains to stress that this is not an elitist comment, it is just a realistic summary of the position. It’s also fair to point out that the same principle applies to most jobs. Nobody would imagine that someone could just roll out of bed one day and, on a whim, decide that they were going to drive a train, dispense prescriptions in a pharmacy or bake elaborate wedding cakes. Nevertheless, it isn’t clear why legal expertise tends to attract some much cynicism, it has probably much to do with the abstract and intangible nature of words.
In any event, it must be highlighted that the decision of the court in this case does not equate to finding that bees are “fish” as far as the generally accepted definition is concerned (“a limbless cold-blooded vertebrate animal with gills and fins living wholly in water”). Crucially, the word “fish” here is a term of art, and therefore, has a different meaning to the one applicable in everyday life. Furthermore, to add a layer of complication, the relevant definition is not set out in CESA itself, but the California Fish and Game Code, which refers to any “mollusk, crustacean, invertebrate (or) amphibian”. Moreover, as the court had noted, the text does not distinguish between terrestrial and aquatic animals, and the state legislature had already approved one land-based mollusk being listed as threatened or endangered for the purposes of CESA.
Consequently, it was appropriate to classify bees as coming within this expansive definition of “fish” for the purposes of this particular Act of the California state legislature, and it is fair, and important, to observe that this was not necessarily obvious or the only possible conclusion, because the ruling reversed a judgment on the same question made by a lower court. In light of this decision, we must stress that Law isn’t a discipline in which there is always one, clear right answer, and in order to assess the wording in front of it, the court had to consider other relevant statutes, case law and the context and purpose of the CESA.
The truth is that reasonable, intelligent and competent judges, as well as lawyers, can sometimes come to conflicting conclusions in this process. It is also worth noting that although judges are tasked with applying the law as it exists, not as they would like it to be, and cannot substitute their own moral conclusions for those of the legislature and politicians sitting there, they are equally not computers existing in an emotionless of ideological vacuum. The context of this litigation was a challenge by agricultural interests to a vote of the California Fish and Game Commission to list four native bumble bee species under CESA, and even though you might imagine that farmers would be keen to protect bees and other pollinators, there were concerns over the impact on using pesticides and other practices.
In weighing up the merits of the various arguments, the judges were rightly and inevitably aware of the current climate emergency, and the dire threat posed to many invertebrates by a variety of environmental factors. Without doubt, this wider context will have influenced their reasoning on finely balanced legal questions, because such is the cost, and benefit, of having human judges making what are sometimes quite subjective decisions.
In summary, interpreting law is not an easy task, but a nuanced and complex endeavour that requires numerous factors to be considered simultaneously. One of the first lessons which legal students learn is that in many instances, their lecturers are going to be more concerned with how they arrived at the answer to a question than what the answer might ultimately be. Two exam papers reaching opposite conclusions might both achieve the same mark, high or low! This is because that same process of legal reasoning is going to be what one day determines their capacity to convince a judge to accept their interpretation, and at the end of the day, this was the kind of skill that led a Californian court to justifiably conclude that, for some legal purposes, bees are “fish”.
Bees are Fish under Calif. Endangered Species Act: State Court Reuters (1/6/22) https://www.reuters.com/legal/litigation/bees-are-fish-under-calif-endangered-species-act-state-court-2022-06-01/
Appeal Court Finds California Law Protects Bees Courthouse News (31/5/22) Appeals court finds California law protects bees | Courthouse News Service
Centre for Food Safety Press Release (29/5/19) Four Native Bumble Bees Are Poised to be the First Pollinators Protected Under the California Endangered Species Act (centerforfoodsafety.org)