California court finds that bees fall within a legal definition of fish [pdf]
courts.ca.gov
courts.ca.gov
‘[f]ish’ means a wild fish, mollusk, crustacean, invertebrate,
amphibian, or part, spawn, or ovum of any of those animals.”
Fun fact: for a time, according to Dave Arnold, the Catholic church defined beavers as meat, but beaver tails as fish. You could eat the tail on a Friday, but not the rest of the beaver.
Law making and programming are quite similar in some ways, and share some pathologies.
Seems more sensible and less error prone than using "fish, mollusks..." everywhere and doing a ctrl+f and adding a ", bees" everywhere. Doing the ctrl+f approach would be the hack IMO. I guess they could have changed the variable name as well but legal documents probably aren't written in IntelliJ or some other tool where you can confidently believe that you changed every occurrence. Plus, you don't have compiler warnings!
Unless I'm misunderstanding something or your comment...
It's a landmine for future developers who want to parachute in, understand what is happening, make a fix, and jetpack out again.
To the lay person, legalese often sounds silly, but it is not without purpose or direction.
The court examined historical evidence specifically to evaluate the argument that the law was intended to apply only to “wet ones” and rejected that argument.
If the legislature disagrees with the court's conclusion, then they are free to amend the legislation in question.
Adding a system for that would not be impossible but would have to be done carefully. Instead, we have the system as it currently operates... The law says what it says, the courts declare interpretations if people disagree, and the legislature may, but is not obligated to, act to pass law with further clarification if they have concern with the court's interpretation.
The only reason this seems complicated is because the headline of this post has asked us to find it complicated. The real story is quite boring.
The Legislature is the body to address the gap, not the court.
The Court has to do something to resolve the issue. Either the legislature meant to include some but not all terrestrial invertebrates (e.g. snails but not bugs), or they included all (snails and bugs). The court went with the literal meaning of what the legislature wrote rather than drawing arbitrary lines without support.
What would you have them do instead?
They did. They said that “fish” includes, among other things, any inverterbrate.
The people challenging the executive action authorized by the legislature with this language wanted the court to declare that “any invertebrate” in the law does not include bees. But the courts are the wrong place for this: if they think the executive branch should not have regulatory authority over bees which the legislature has granted it over all invertebrates, they should take this to the legislature (or the people, acting via the power of initiative) to alter the grant of authority.
This is incorrect. It includes "invertebrates", not "any invertebrates". The question is whether a bumblebee is as much of a "fish" as a mollusk.
There's 9 pages of analysis on the scope. Changing "invertebrate" to "any invertebrate" clearly begs the question.
It couldn't be clearer. ignoring the text of the law and then declaring the court to have not done its job is ridiculous. In fact, if the court IGNORED the text of the law, I'd think that they'd be more open to a "legistlating from the bench," critique.
For example, many traffic laws refer to roadways as highways, even if e.g. it is a driveway or a backalley.
They did, by changing the definition of fish to include all invertebrates.
> The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species (i.e., species being considered for listing as endangered or threatened species) in section 2068 of the [California Endangered Species] Act.
> We conclude a liberal interpretation of the Act supported by the legislative history and the express language in section 2067 that a terrestrial mollusk and invertebrate is a threatened species (express language we cannot ignore), is that fish defined in section 45, as a term of art, is not limited solely to aquatic species. Accordingly, a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under the Act.
Some background on the lawsuit: https://almondalliance.org/california-court-rules-insects-no...
Primer on the relationship between almond orchards and beekeepers: https://bee-health.extension.org/wp-content/uploads/2019/08/...
California court finds that bees fall under classification defined by legal text is a more appropriate headline.
Now, there are terrestrial invertebrates as well, for instance, bees. No reasonable person would think that the legislature meant to include terrestrial invertebrates into the definition of fish. But, that's what this judge did, giving the absurd result that bees are fish.
Nobody who actually read the decision could be left with the impression that this is about what "reasonable people" would understand the term "fish" to be, because that's not remotely what the statute itself says.
Here's what the judge should have said. "In this part of the law, 'invertebrate' refers to a fish. In other parts of the law, 'invertebrate' refers to terrestrial animals. Obviously, the legislature did not mean to include terrestrial animals as fish. Therefore, a bee is not a fish".
In October 2018, the public interest groups
petitioned the Commission to list four species of
bumble bee as endangered species: the Crotch
bumble bee, the Franklin bumble bee, the Suckley
cuckoo bumble bee, and the Western bumble bee
(collectively the four bumble bee species)
[... 2 grafs ...]
In September 2019, petitioners challenged the
Commission’s decision by filing a petition for
writ of administrative mandate in the trial
court. Petitioners asserted the Commission’s
determination that the four bumble bee species
qualify for listing as candidate species under the
Act “violated the Commission’s legal duty, was a
clear legal error, and was an abuse of
discretion.”
It's an easy opinion to read. You can just get this from the document linked on the thread. It's all right there.
No, the judge took examples from other areas of the law as evidence against the argument that the Legislature could not have intended what the plain language of the definition in the section of the law in dispute directly says. The definition was not taken from a different section of law, only evidence against the effort to reinterpret the definition in a narrower way than it's plain language suggests.
> We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened species.
> (the lens through which we are required to construe the Act)
> through which we are required
Take it up with Sacramento!
This of course doesn't work unless the parties agree to playing in the shared framework, otherwise labels/words have untethered power, which is typically what happens on the internet. It also isn't universally effective, sometimes going deep gets in the way of doing meaningful stuff.
The proper way to get this useful thing done is for the legislature to amend the law to be more inclusive.
That, ultimately is what makes the drafters of the pertinent amendment to the statute look sloppy, like they do not know what they are doing. The court could have reasonably gone either way, and without some failure prone inquiry into legislative history they may not have any way to tell what the legislature intended.
The doctrine of noscitur a sociis is simply shorthand for a standard way to resolve ambiguities like this, but the court used a different rule, making the legislature look silly for allegedly defining all invertebrates as fish for the purposes of this statute. Allegedly.
This isn't an accident of law; there was a whole huge kerfluffle in the 1980s in California about where the authority to protect insects came from, and this was considered carefully at the time.
Again, this is right there in the decision linked at the top of the thread.
Where in the law is it inclusive defined?
Philosophy tells us this is one way to change concepts, another is to narrow definitions, both have known limitations. There are many ways to do meaningful things, by this definition "proper" just means something meaningful was done?
> This of course doesn't work unless the parties agree to playing in the shared framework
from https://en.wikipedia.org/wiki/Fish ---
In earlier times, even biologists did not make a distinction – sixteenth century natural historians classified also seals, whales, amphibians, crocodiles, even hippopotamuses, as well as a host of aquatic invertebrates, as fish.
Edit: to put things into perspective, a salmon is more closely related to a camel than it is to a hagfish.
Bumblebee doesn't even come close to any definition of fish. It doesn't live in the water, and isn't in the same clade than includes all living fish (as we are, being tetrapods).
Not sure what you mean by "most species of fish evolved independently," by the way.
It fits well within the only relevant definition of fish, the one explicitly written in the statute under which the Fish and Game Commission operates, and of which the challenge to their action would have required the court to disregard the plain language.
The issue here isn't what the word fish means in general usage, it's what the California State Legislature granted the California Fish and Game Commission regulatory authority over, and in the law granting that authority, all inverterbrates are expressly included.
The courts job is to apply the law.
See, just because they look about the same doesn't mean they share any common parentage.
The main issue I have with the parent's comment is the idea that "most species" evolved independently. No, most species have a whole bunch of other species very closely related to them.
There are a few major branches of fish, such as ray finned (most fish) and lobe finned, the taxanomic category of the latter also includes tetrapods, and only has a couple of species that are still actual fish, such as coelacanth and lungfish. And above that distinction, there are bony fish and cartilaginous fish, such as sharks and rays.
But still, even if fish is not monophyletic, it is not polyphyletic, which means all things considered fish are "connected" to other fish.
https://en.wikipedia.org/wiki/Evolution_of_fish#/media/File:...
And yet, a bumblebee is clearly not a fish.
A bumblebee is clearly an invertebrate.
The statute explicitly defines “fish” for the purpose of the power at issue as “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” [Cal. Fish & Game Code § 45, emphasis added]
A bumblebee is, unmistakably, a “fish” under the applicable statutory definition. The challenge to the executive branch action here called on the court to disregard the express language of the statute granting regulatory authority.
"definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species (i.e., species being considered for listing as endangered or threatened species)"
It's mostly because our fuzzy definitions of things are just that, fuzzy. Tall, thick, bark-covered plant? Yeah, tree. Water-breathing legless animal? Fuck it, fish.
Tomatoes are fruits and everyone loves this fact. But so are bell peppers. And I think cucumbers. In fact, most vegetables are technically fruits (anything with a fruiting body is a fruit). And half the nuts are legumes. And legumes are fruits. And all fruits are also vegetables. Because vegetables are the part of plants we eat. But most vegetables are some other sort of plant life.
So in short, our classifications and definitions are more what you'd call "guidelines".
...what was the original subject? Trees are just so cool
Not sure what impact bees have on aquatic ecosystems though - I was able to google something about potential pollination of a few aquatic plants - but that seems very minimal. The terrestrial mollusk they mention, the Trinity Bristle Snail [1] is found along river ecosystems and would presumably have more of an impact on those aquatic ecosystems.
But if a loophole is needed to protect the bees then it's probably a good idea.
If the legislature did a bad job drafting the law, the courts shouldn't just say "well, bees are important". Reject it and make the legislature pass a better law if they want to protect bees. Otherwise it's not rule of law, it's rule of courts.
They didn't just say bees are important, nor did they find that the legislature did a bad job drafting the law (which, in general, is not their job—qualitative assessment of legislative output and correction—either direct via initiative/referendum or indirect by replacing legislators—as necessary is the job of the electorate, not the judiciary, in California.)
The court said that the law as written explicitly says that ‘fish’, for the purpose of the grant of power in the law, includes, among other things, all invertebrates, and the historical evidence is consistent with that meaning exactly what it says, including terrestrial invertebrates, so the executive branch agency acting under power granted by the law with respect to ‘fish’ is correct in applying that power to bees, which are within the scope of the law’s explicit grant of authority.
If the people of the State disagree with the law granting power in this way they have the tools to correct it, and it's not the courts job.
The whole purpose of courts is to deal with ambiguities like this. If you don't like the court ruling, ask your legislators to amend the law.
Legislators legislate, courts interpret, legislators can clarify if they don't like the interpretation. Sounds like the Rule of Common Law to me.
At any point the legislature is still allowed to correct the record and override the court’s interpretation by making their position explicit.
Or the legislature could do their jobs and craft appropriate legislation.
As you describe, they can do their jobs. If they don't, we have to assume that they are fine with this interpretation.
It's a common misconception among American technologists that law is some kind of code that you can deterministically, and unambiguously execute on a VM, and come up with the same result every single time.
If that's the sort of thing you're looking for, you could try moving to a Civil Law country. You have a lot of options in this case - most of the world runs on Civil Law. In the boundless wisdom of the founding father, America forked its legal system from the United Kingdom, and is therefore a Common Law nation, where courts can routinely interpret legislature as they see fit, and set binding precedent when they do so.
That method of operation leaves it open to future disputes. It's better to have a well defined law that doesn't rely on interpretation as those interpretations change over time.
Not to mention, this interpretation should never have occurred to begin with. It's a concept in law that you cannot ignore or contradict the wording of a law to pursue its spirit. This clearly defines "fish" in such a way that it is inconsistent with the text. That one also must use the definitions defined in the law, defined in similar laws, or defined in the dictionary. Which this meets none of those.
"It's a common misconception among American technologists that law is some kind of code that you can deterministically, and unambiguously execute on a VM, and come up with the same result every single time."
That is the goal - that the law is defined in a way to produce consistent results and is applied equally. That's why we have rules of procedure, follow precedent, etc.
That method of operation is precisely how the legislature and the judiciary in this country works. Based on a decision made ~250 years ago.
When a law is open-ended, the judiciary clarifies it. If the legislature doesn't like this clarification, it passes a new law. If the legislature includes a contradiction to the clarification in the new law, the courts take this into account as a strong indicator of how the law should be interpreted in the future.
> It's better to have a well defined law that doesn't rely on interpretation as those interpretations change over time.
If you believe this strongly enough, you should consider moving to a Civil Law nation, where the process I described does not happen. This is a Common Law nation, that is built on this process.
> That is the goal - that the law is defined in a way to produce consistent results and is applied equally.
This goal, like a spherical cow, is impossible to meet. In practice, ambiguities and uncertainties always exist, and every country's political system has a process for resolving it. This country's process is a push-and-pull between the judiciary and the legislature.
(2) We don't even reach that problem here, because there is no ambiguity about what this statute says. To find that bees aren't fish, the court would have had to literally ignore the whole statutory definition.
(3) There's no "interpretation" (in the natural sense of the word) involved here. The statute defines the term we're debating, explicitly, exactly because they don't want courts to make up their own definition for the term "fish".
I have precedent in my state that says otherwise - that you cannot ignore the text to pursue the spirit.
"We don't even reach that problem here, because there is no ambiguity about what this statute says"
Please explain what invertebrates was added under fish with other aquatic-relates species while the other addition of plants was given its own category.
Does it? The text at issue is California Fish and Game Code § 45, which reads:
“Fish” means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.
How is the interpretation that bees, which are invertebrates, are within the scope of the statutory definition of “fish” inconsistent with the text?
I wonder if such a drafting choice would be made today, in the presence of the modern word processor.
Nope this is a fast track to bad outcomes.
Especially for the purposes of the endangered species act - insect classification is already tricky enough. You could have two nearly identical bugs except for which side of the river which they spawn on. And now you are required to estimate the population over every type of insect and determine its endangered status, and use it as an insurmountable veto power on any new developments?
This seems like a bad pandora's box to open.
Try asking a person in the street "Is X an animal" - where is bumblebee, fish, roach, dustmite, jellyfish. The default image of animal is a dry mammal or bird.
As I understand it, the law has a section for birds, a section for mammals, and a section for fish. The section for fish might better be termed Animals that are not mammals or birds, but I guess that gets cumbersome.
https://twitter.com/greenleejw/status/1531838008026185729?s=...
The phylogenetic nomenclature is basically textbook cope; coping with the fact that the ancient word of fish doesn't align well with what biologists have learned. If you want to create a scientifically and genetically sound classification of 'fish' that roughly aligns with what people already know fish to be, then you have to make it a phylogenetic group to exclude humans, whales, lizards, snakes, etc. It's a mess.
But it's a mess biologists unnecessarily made for themselves, by trying to adapt an ancient word to their new discoveries. I prefer the traditional approach: fish do exist, they are simply animals that live in the water. It's not a genetic classification, simply a folk taxonomy. Salmon and hagfish both live in the water, so they're both fish. Dolphins live in the water, so they're fish too. Starfish and jellyfish are both fish. Sea turtles are almost fish, but not quite because they lay their eggs on dry land. Coral are a tricky edge case.
I always contend it is
and here, it is
In context, it's clear that the legislature intended "invertebrates" to mean aquatic ones. There is zero textual evidence to the contrary.
The California legislature ought to step in and do a quick amendment to include insects and be done with it.
This court is legislating from the bench. This opinion is an embarrassment to the legal profession.
This is why careful phrasing is key in legislation. Nothing curtails the legislators' authority to give fish and game authority over things that most people don't think of as fish.
It would be nice if the legislature would pass a law to clarify their intent, but the amazing thing about the way the law works is they can just refrain from doing so, this President stands, and everyone wins with no further effort. Kinda elegant in its own weird way.
It seems more as if your conclusion, that we should ignore the plain meaning of the word in the statute and instead try to capture the ineffable intent of the authors of the statute to discern precisely which invertebrates they meant, is the one with less grounding. If they wanted the statute to refer to "aquatic invertebrates", they'd have said so.
I don't think that's true. Maybe there's an odd exception out there somewhere, but toads start life as aquatic tadpoles.
The court followed the law as it was written, which is good. And there is nothing inherently wrong with the law classifying all invertebrates as fish; many invertebrates are fish in the folk taxonomical sense, and there's no harm in accidentally pulling in wholly terrestrial vertebrates like bees.
But was the classification of bees as fish an accident? It doesn't matter; the law is what it is and the court decided correctly. But, nevertheless, we can still wonder whether it was an accident. I think it was. All the categories of animal categorized as fish by this law have a strong connection to water. What are they?
> wild fish, mollusk, crustacean, invertebrate, amphibian
"Wild fish" are obviously fish.
Crustaceans are sometimes terrestrial, but most are fish.
Amphibians are all characteristically aquatic early in life, and look like fish. Some remain aquatic their entire lives.
Mollusks are sometimes terrestrial (garden snails), but the majority of mollusks are aquatic and mollusks are the largest marine phylum, making up a plurality of all named aquatic animals. The mollusks people in America like the most, and consequently think about the most, are all seafood.
Invertebrates.. that's the contentious one. Technically, if not legally, invertebrates include all mollusks, as well as jellyfish, corals, sea anenomes, worms, etc. A whole lot of invertebrates are aquatic animals. It seems to me that if a well intentioned but busy lawmaker were trying to make a list colloquially defined fish (animals that live in the water), invertebrates could easily get roped into this list (along with toads, and terrestrial crustraceans.)
Notably missing from this list of fish are types of animals that are rarely or never aquatic; it doesn't list squirrels as fish probably because one does not think of water when they think of squirrels. But if the lawmakers had been prompted to think of beavers, perhaps they would have written rodents into their definition of fish.
Does or should it matter to the court? No, I don't think so. They should and did go by what the law said. But that doesn't mean HN commenters can't or shouldn't discuss what we think the lawmakers actually meant when they wrote this.
Seems extremely simple.
Isn’t the ruling based on the fact that there are terrestrial invertebrates explicitly qualified based on their inclusion in the “fish” category? What should you do when the legislature says “this law protects squares, and by squares we mean any planar shape with 4 sides.”