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A bumblebee is a fish in California? Maybe — until lawmakers fix the law

California pollinators are swimming with delight, for now at least.

SACRAMENTO, Calif. (CN) — The California Supreme Court on Wednesday refused to review an appellate ruling which found bumblebees fall under the same category as a fish under the state’s Endangered Species Act — but advised the Legislature it may wish to review the law for some unintended consequences.

This past May, the Third Appellate District found bumblebees, which are a nonaquatic invertebrate, can be listed as endangered under the California Endangered Species Act because it applies to fish, and “invertebrates” can be included within what the court deems as the category of fish. The ruling came as a win for the California Fish and Game Commission and the state’s Department of Fish and Wildlife — and intervenors Xerces Society for Invertebrate Conservation, Defenders of Wildlife and Center for Food Safety — and means the commission may list any invertebrate as an endangered or threatened species, if it meets the Act’s requirements for being threatened. 

The appellate opinion noted that before 1969, section 45 of the act defined fish as “wild fish, mollusks, or crustaceans, including any part, spawn or ova thereof.” But that year, the Legislature amended section 45 to add invertebrates and amphibia to the definition of fish. Section 45 has been amended only once, in 2015, with stylistic changes to the definition to read that “fish” means “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.”

The California Department of Fish and Wildlife, between 1997 to 2014, stated insects are not covered under the act. And in a report by the Senate Committee on Natural Resources and Water during the 2017-2018 legislative session, lawmakers confirmed insects cannot be listed under the state's endangered species law.

Still, the appellate court found ambiguities as to whether the Legislature intended for the definition of fish to apply only to aquatic species — given the term "invertebrates" with no qualification.

“A fish, as the term is commonly understood in everyday parlance, of course, lives in aquatic environments. As the department and the commission note, however, the technical definition in section 45 includes mollusks, invertebrates, amphibians, and crustaceans, all of which encompass terrestrial and aquatic species.” Third Appellate District Justice Ronald Robie wrote for the panel.

Robie also noted the Legislature approved of the commission’s decision to list a terrestrial mollusk and invertebrate as a rare animal under the 1970 legislation by stating it “is a ‘threatened species’ ” under the act. 

“This legislative history, when viewed through the liberal lens with which we are tasked, supports the interpretation that the commission has the authority to list any invertebrate as an endangered, threatened, or candidate species, if it meets the requirements in those definitions of the act,” Robie wrote, adding that limiting the term to aquatic animals would require a restrictive interpretation of the act and “directly at odds” with the court's duty. 

Petitioners, including Almond Alliance of California, California Association of Pest Control Advisers and California Citrus Mutual, asked the California Supreme Court to review the opinion. On Wednesday, the high court declined — but outgoing Chief Justice Tani Cantil-Sakauye issued a brief explanation as to why.

"Our decision not to order review will be misconstrued by some as an affirmative determination by this court that under the law, bumble bees are fish," Cantil-Sakauye acknowledged.

“These kinds of seemingly illogical outcomes can in fact best capture the enacting legislature’s intent in a variety of circumstances,” she continued. “A statute may be construed in a manner that goes beyond the literal meaning of its text to avoid an absurd result the Legislature could not possibly have contemplated. Sometimes courts perceive a scrivener’s error or typo that must be corrected to vindicate the intent behind a measure. Or the context surrounding the use of a word or phrase within a statute can convey that it carries an unusual meaning, peculiar to that law. The court of appeal below concluded that the interpretive question before it fell into the last of these categories, with the consequence that bumble bees should indeed be regarded as 'fish' under the CESA."

Whether they are is up to the Legislature to decide and subsequently clarify section 45, Cantil-Sakauye said.

"For although it may not be exceptional for a court to determine that a particular word or phrase within a statute carries a meaning that deviates from common parlance or understanding, such decisions also can provide notice to legislators that some clarification may be in order," the chief justice, who is retiring at the end of the year, wrote.

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