Who knew? Bees are fish.

A bumble bee searches for pollen during a spring day in New York
A bumble bee searches for pollen during a spring day in New York, May 23, 2012. REUTERS/Brendan McDermid

(Reuters) - Legislators don’t “hide elephants in mouseholes,” the late Justice Antonin Scalia wrote. But what about bumble bees in fish?

Scalia’s point – that courts need clear evidence of legislative intent before greenlighting shifts in regulatory policy – strikes me as spot on in a real-life animal kingdom dispute.

On Tuesday, an appeals court in California earnestly held that bees are fish. Or at least for regulatory purposes under the state’s endangered species law.

Call me narrow-minded, but bees … are not fish.

So how did the court arrive at such an absurd-seeming result? And one with potentially far-reaching consequences?

Before we dive in though, let me just say up front that if ever there was an invertebrate worthy of protection, it’s the bumble bee. Not only are they fuzzy and adorable, but they also help make life on Earth possible by pollinating plants. Bumble bees are, well, the bee's knees.

But that doesn’t make them fish — not if the word "fish" has any coherent meaning at all.

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 species of imperiled native bumble bees (including the delightfully named Suckley's cuckoo bumble bee) under the state’s Endangered Species Act.

The bees’ populations have plummeted in recent years, threatened by habitat loss, diseases and pesticides.

One wrinkle though: California’s endangered species law defines candidates for protection as “bird, mammal, fish, amphibian, reptile or plant.” The statute doesn’t say anything 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 act and was broadened in 1969 in response to tidepool harvesting) defines “fish” as “wild fish, mollusk, crustacean, invertebrate, (or) amphibian.”

Insects are invertebrates. Invertebrates are fish. Ergo, insects are fish — and can be protected under the endangered species law!

That’s the argument that the Sacramento-based Third Appellate District bought, holding that “although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.”

That means the state “may list any invertebrate as an endangered or threatened species,” Associate Justice Ronald Robie wrote, 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 wriggle through Scalia’s metaphorical mousehole for protection under California’s endangered species law.

(Question: As a Pisces, can I get protection too?)

Nossaman partner Paul Weiland, who represents a coalition of agriculture groups that objected to listing the bumble bees as endangered, told me that his clients have not yet made a decision on whether to appeal.

But he said that the opinion substantially expands the bounds of “what has been the understanding for years” of the state’s endangered species act. “The court shouldn’t be filling in what it sees as a gap under the law,” he said.

Stanford Environmental Law Clinic supervising attorney Matthew Sanders, who represents the environmental groups, said in an email that the “California Legislature expressly defined ‘fish’ to include ‘invertebrates’ (and all invertebrates, not just aquatic ones).” The decision “confirms the California Legislature’s plain words and intent: that (the California Endangered Species Act) extends to invertebrates.”

A spokesman for the California Fish and Game Commission said it does not comment on pending litigation.

The appellate panel reversed the decision by Sacramento County Superior Court Judge James Arguelles, who wrote that a “counterintuitive mental leap is required to conclude the bumble bees may be protected as fish.”

Arguelles also noted that when lawmakers amended the endangered species statute in 1984, they deleted the term “invertebrates” — which had been included in earlier drafts — from the list of covered species.

Perhaps that’s because they figured invertebrates fell under the “fish” category, 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 to mention amphibians if they were already safely ensconced in the fish family?

The appellate panel shrugged.

The rule against surplusage — language that’s not necessary — is not “an infallible canon,” they held. Moreover, if the legislature disagreed with section 45’s long-standing definition of fish, they “could have said so or provided a different definition for fish” the panel wrote.

The agriculture groups also failed to convince the panel to defer to a 1998 formal opinion by the state’s attorney general, which held that insects “are ineligible” for protection under the endangered species law.

To me, one of the more persuasive arguments by the environmental groups is that the Trinity bristle snail — a land-dwelling mollusk - has been protected for decades under section 45’s expansive definition of “fish."

Weiland told me no one bothered to challenge the designation. Still, state lawmakers presumably had no issue with the snail being protected under the catch-all category of fish.

As a Californian, I genuinely want bumble bees to be protected. But I don’t think the court can rightly get there by turning them into fish.

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Thomson Reuters

Jenna Greene writes about legal business and culture, taking a broad look at trends in the profession, faces behind the cases, and quirky courtroom dramas. A longtime chronicler of the legal industry and high-profile litigation, she lives in Northern California. Reach Greene at jenna.greene@thomsonreuters.com