On Tuesday a California court ruled that, under some circumstances, a bee can be a fish. The decision was veritable chum to libertarians who like to poke fun at California’s environmentalism. And at first, I thought they might have a point there—it does seem like a bizarre decision to just throw the rules of taxonomy out the window. But then I fell down a rabbit hole trying to understand what’s happening there—and it’s a lot more complicated that you might think.
In 2018, the Center for Food Safety, the Xerces Society for Invertebrate Conservation, and the Defenders of Wildlife petitioned the California Fish and Game Commission to include four species of bumblebees in the list of endangered species protected by the California Endangered Species Act. At the heart of their argument was Section 45 of the California Endangered Species Act, which defines a fish as a “wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” They successfully argued that the inclusion of the word invertebrate technically allows the act to cover all invertebrates, not just aquatic ones.
Seven agricultural groups, including the Almond Alliance of California, quickly filed suit to overturn this decision, and the California Superior Court in Sacramento ruled in their favor in 2020, removing protections for the bees. But on Tuesday, the California 3rd District Court of Appeals reversed that decision, allowing endangered bees to qualify as fish in order to protect them.
Bees are not the only species to be reidentified as fish on a technicality; in the 17th century, the Catholic Church allowed residents of what is now Quebec to eat beaver meat during Lent. The semiaquatic rodent was considered a fish because it lives part of its life in the sea, which has medieval precedent. Sure, that’s a religious matter rather than a legal one. But the United States Supreme Court has also asserted what could be a questionable taxonomy opinion. In 1893, Nix v. Hedden determined that a tomato was a vegetable despite John Nix, a grocer looking to avoid a vegetable tax, arguing that it was a fruit, thus sparking a pedantic debate that continues to this day. (For the record, a tomato is a fruit botanically, because it is a “ripened flower ovary” that contains seeds. But from a culinary standpoint, it’s a vegetable, or the edible part of a plant, because it has no business being added to a fruit salad. “Vegetable” is not a botany term.)
Back to the bee case. Soon after the verdict began to make the rounds, University of Virginia law professor Lawrence Solum published a fascinating Twitter thread on the matter. I reached out to ask him a few questions about the ruling—in particular, how one court could say that the law covered bees while another didn’t.
Solum explained to me that the different decisions of the 2020 appeal and the 2022 appeal come down to the approach the judges use to interpret a law. The fundamental split in judiciary interpretations separates judges into textualists and purposivists. A textualist interpretation, such as the 2020 decision, looks at the full context in which a word is used, while a purpositivist interpretation tries to figure out what the overall goal of the statute was. The definition of fish in this act is an example of what he calls “semantic availability,” which allows a judge to decide in a textualist or a purposivist manner.
Because the definition of fish in this statute includes fish, crustaceans, and amphibians, a textualist would read invertebrate and come to the conclusion that the statute implied aquatic or marine invertebrates. This involves a branch of semantics known as pragmatism. Solum gave some examples of how native speakers of a language usually inherently understand words that are left out of a sentence because of the context. If I tell you in the morning “I haven’t had breakfast,” you would understand I mean I haven’t had breakfast yet today, not that I have never had breakfast. The statute would have to be amended to include insects or terrestrial invertebrates in order to cover bees.
But a purposivist would argue that because this was a statute about protecting endangered species, and another section of the act includes “native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant,” then the act should be broadly interpreted to protect any endangered species. And the semantic availability of “invertebrates” allows them to interpret it broadly, because Section 45 does not specify aquatic invertebrates.
If that were not enough, the defendants came prepared with proof that a terrestrial mollusk has been protected under the CESA since 1980: the Trinity bristle snail. Not only does this prove that aquatic is not implied in the definition of fish, it’s also proof that the CESA is already protecting terrestrial invertebrates (mollusks are invertebrates) and therefore should extend protections to the endangered bee species.
It’s unclear whether this is a permanent victory, as the agricultural groups may decide to take the case to the California Supreme Court. So far, they have not released a statement in response to the ruling. But if the precedent of the bristle snail holds, this is good news for the bees—and good news for our stomachs, too. In a press release celebrating Tuesday’s ruling, Rebecca Spector, west coast director at Center for Food Safety, states that “one out of every three bites of food we eat [comes] from a crop pollinated by bees.” And with more than one-quarter of all North American bumblebees at risk of extinction, our crops will need all the support they can get. So move over, beavers (and muskrats, and capybaras): Bees are fish too.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.
