Last week, the California Supreme Court decided to let stand a lower appellate court decision holding that bumble bees are “fish” under the state Endangered Species Act. Chief Justice Tani Cantil-Sakauye, anticipated (quite correctly!) that her ruling would puzzle the public. She wrote:

…[O]ur 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. A better-informed observer might ask: How can the court pass up this opportunity to review the Court of Appeal’s interpretation of the Fish and Game Code, which seems so contrary to common knowledge that bumble bees are not a type of fish? Doesn’t this clear disconnect necessarily amount to “an important question of law” … warranting this court’s intervention, because the Legislature could not possibly have intended such a result?

Were things always that simple.

Well, as a matter of fact, some things are always that simple. It is, and always has been, a simple fact that bumble bees are not fish. Pretending that the law provides otherwise – even while acknowledging that “the Legislature could not possibly have intended such a result” – is worse than judicial error. It is a self-inflicted wound on the credibility of that beleaguered branch of government. Polls show that in recent years the public has already been losing confidence in our judicial system. Little wonder.

How did this happen?

The California Endangered Species Act, enacted in 1970 and amended in 1985, protects a wide variety of “species,” a term it defines as “native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant.”

The Act does not define “fish,” but Section 45, a separate provision of the Fish and Game Code, does. Section 45 originally defined “fish” as “wild fish, mollusks, or crustaceans, including any part, spawn, or ova thereof.” In 1969, Section 45 was amended to include “invertebrates” and “amphibians.” Section 45 is not part of the Endangered Species Act, so its relevance is questionable. But even assuming Section 45 applies to the Act, the expanded definition was not intended to include bumble bees. The legislative history reveals that the term “invertebrates” was meant to include “starfish, sea urchins, sponges and worms, and other such aquatic animals.” Invertebrates and amphibians were added to the definition of “fish” because “[t]hese marine animals . . . thrive in tide pools along the coastline, which in many areas are being denuded by collectors.”

More than 90% of all animal organisms are invertebrates. It strains credulity to the breaking point to assume that by revising the definition of “fish” to include “invertebrates,” the Legislature intended that 90% of all animal life on the planet should thenceforth be deemed “fish.” But that is exactly what the appellate court assumed. It reasoned thus: The term “fish” includes invertebrates. Invertebrates include terrestrial insects. Terrestial insects include bumble bees. Ergo, bumble bees are “fish.”

To justify allowing this curious decision to stand, Chief Justice Cantil-Sakauye cited precedents in which courts also seemed to strain credulity to avoid illogical results. In Amalgamated Trans. v. Laidlaw, the Ninth Circuit interpreted the term “less” to mean “more”; in Scurto v. LeBlanc, a state court interpreted the term “unlawful” to mean “lawful” ; in Murray’s Lessee v. Baker, the U.S. Supreme Court interpreted the term “beyond seas” to mean out of state (or as the Chief Justice put it: “seas …. required no water at all”). 

She was right to an extent. But in each case, the court was not making policy. Rather, it was construing the statute to implement the legislature’s policy.

In Amalgamated Trans. v. Laidlaw, for example, the Ninth Circuit construed a federal statute dealing with the deadline for filing a notice of appeal. The statute under consideration provided that such a notice must be filed “not less than seven days” after entry of the appealed order. Of course, the drafters meant to say that the notice must be filed “not more than seven days.” Any other interpretation would mean that a party, after waiting a week, could then file a notice of appeal at any time in perpetuity.

In Scurto v. LeBlanc, a state court construed a statute providing that a party litigant may impeach the testimony given by his opponent on cross-examination “in any unlawful way.” This statute had been copied from an earlier version containing the word “lawful,” and the court reached the obvious conclusion that the clerk, in copying that version, had substituted the world “unlawful” for “lawful” by accident.

In Murray’s Lessee v. Baker, decided in 1818, the Supreme Court construed a statute allowing additional time for certain classes of litigants to bring an action to recover property. These classes included persons who were “non compos mentis, imprisoned, or beyond seas.” The Court reached the reasonable conclusion that “beyond seas” meant “out of state.”

One might quarrel with these decisions and argue that the courts should have construed the statutes literally, to embarrass the legislatures into correcting their errors. But these decisions are not remotely comparable to the bumble bee case, where the appellate court, instead of trying to discern and impose the legislature’s policy preferences, imposed policy preferences totally at odds with them.

The original Endangered Species Act was signed into law in 1970. It was amended in 1985. For 52 years, nothing prevented the legislature from adding “insects” in general or “bumble bees” in particular to the list of protected species if it wished to do so. But it did not. The decision to include bumble bees among such species by shoe-horning them into the definition of “fish” was entirely judicial, not legislative. The appellate court, with the acquiescence of the California Supreme Court, simply injected its own policy preferences into the statute, rather than the legislature’s policy preferences. Thus, the cases cited by the Chief Justice — where the courts strove to inject the legislature’s policy preferences, however inartfully expressed — are completely inapposite.

The Chief Justice also mentioned United States v. Yates, a 2015 Supreme Court case. The dissent in that case is worth special consideration because of what it teaches about the proper role of judges.

Yates, a commercial fisherman, was found to be hauling undersized fish. A federal agent instructed him to keep the undersized fish segregated from the others until he returned to port. Instead, Yates told a crewman to throw them overboard. Yates was prosecuted under a statute imposing fines or imprisonment on anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede” a federal investigation. The issue on appeal was whether a fish constituted a “tangible object.”

The Court noted that this provision was part of the Sarbanes Oxley Act, designed to protect investors. Accordingly, a 5-4 majority ruled that the statutory reference to “tangible objects” meant records containing financial information, such as documents and hard drives.  The majority ruled that fish, like the ones Yates threw overboard, were not such “tangible objects.”

The dissent was authored by Elena Kagan, a leading liberal on the Court, and joined by Justice Kennedy, a moderate, and by Justices Scalia and Thomas, both noted conservatives. Justice Kagan wrote:

Whatever the wisdom or folly of [the provision], this Court does not get to rewrite the law. Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress. … If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.

California judges, like all California citizens, have a right to say that bumble bees should be protected under the state Endangered Species Act. They have a right to do so in lectures, in law review articles, and even in dicta. They have a right to do so at the ballot box. But they are not entitled to replace the statute enacted by the state legislature with an alternative of their own design – especially when doing so requires them to design a fish that buzzes and pollinates.


Filed under Law


  1. Interesting. I largely agree. But do you think a court can construe a statute in a way that avoids an unjust result to the litigant without being accused of imposing its own policy preferences?

  2. Yes … especially if it reads the plain language of the statute, and then enforces rather than rewrites it.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s