Four different species of bumble bees are now, in California, considered to be fish in the eyes of the law.
Don’t worry, it’s not a change to the basic definition of what a "fish" is. Rather, it’s what happens when biology butts up against legal limits, and how sometimes a nonsensical compromise ends up being the faster, and thus better, choice than trying to insist on being formally correct.
Let’s back up a little.
California has an Endangered Species Act, referred to as CESA, that offers legal protections to various creatures that are at risk of going extinct. The law was first passed in 1970, and has received additional updates over the years. Any species listed on the CESA:
- cannot be imported into the state;
- cannot be exported from the state;
- cannot be killed or possessed without proper authorization;
- cannot be sold without proper authorization.
There’s currently about 250 different species listed on the CESA. They all undergo regular reviews, assessing their status and whether they have recovered in health to the point where they can be considered for successful removal.
But the CESA has specific categories of animals listed on there. From the law’s text:
“Endangered species” means a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes[.]
Note the animal categories there? Bird, mammal, fish, amphibian, reptile, or plant.
Nature vs agriculture: not all bees are valued equally
They were soon met with arguments. Specifically, those arguments came from agricultural groups — citrus growers, almond farmers, cotton ginners, and others. These groups sued, arguing that the CESA cannot cover insects, and thus these bumblebees cannot be added.
(The full list of groups suing? Petitioners Almond Alliance of California, California Association of Pest Control Advisers, California Citrus Mutual, California Cotton Ginners and Growers Association, California Farm Bureau Federation, Western Agricultural Processors Association, Western Growers Association, and The Wonderful Company LLC.)
Why did these groups sue, anyway? Aren’t bees beneficial to growing crops?
There are two main reasons:
- Most crop fertilization is done at these scales by honeybees, which are brought in specifically to fertilize the crop and are then transported from field to field. Bumble bees do not account for a significant proportion of fertilization of industrially grown crops.
- If these bumble bees are protected under the CESA, it will prohibit the use of pesticides, which are deadly to these animals, but are widely used by the agricultural industry.
In 2020, a district court sided with the agricultural groups, stating that insects do not fall into any of the defined categories of the CESA.
But in 2022, on appeal, a Sacramento appellate court took a differing opinion. They pointed out that, previously, the law had been expanded to cover other invertebrates. Specifically, back in 1980, a snail was added as a threatened species.
How a snail proved that “fish” is just a legal construct
That snail was the Trinity Bristle Snail, a species found solely in Trinity County in northwestern California. This snail grows to about an inch long, and was added to the CESA in 1980.
A single snail may not sound like much, but it sets precedent. And there’s further support in the text of the CESA itself:
“ ‘[f]ish’ means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.”
“By expanding the definition of fish as proposed in this bill, it will be possible for the . . . Commission to regulate the taking of amphibians (frogs) and invertebrates, such as starfish, sea urchins, anemones, jellyfish and sponges.”
Additionally, since 1980, the CESA has also expanded to include two crustaceans — the California freshwater shrimp as an endangered animal and the Shasta crayfish as a rare animal.
Based on this evidence, the appellate court ruled that the term “fish” was not specifically referring to the free-swimming scaled creatures that taste good when grilled with a slice of lemon. Instead, the term “fish” is just a category, one that includes mollusks and other invertebrates, land-dwelling as well as ocean or river-dwelling creatures.
One Redditor made the apt comparison to a programming variable. I can define a variable and call it $FISH. But just because I label the variable as $FISH, that doesn’t mean that it can only contain fish; it can describe whatever I want.
The court concluded that, previously, the term “fish” had already been expanded to cover invertebrates, both marine and terrestrial.
Therefore, there was precedent to also include bees, and the four bumble bee species are now listed.
We’re not really saying that bees are fish, though… right?
No, of course not. We have scientific definitions for fish, and bees are not included in that group.
But legal definitions are not always the same as scientific definitions. In this case, the California Endangered Species Act had been previously defined to include invertebrates, both aquatic (crustaceans) and terrestrial (snails), under the catch-all category of “fish.”
(Perhaps they should have said “fish, etc.”, and we’d feel better about it.)
Therefore, despite a bumble bee not being a fish, and all parties recognizing this as such, the court ruled that the CESA still has authority over these insects, given past expansions.
In a perfect world, the California legislature would update the CESA to create a separate category for insects (or perhaps invertebrates, in general), so that we could all feel better about bees, snails, and crustaceans being listed.
But that takes time, and there’s no guarantee that it would pass. Thus, the faster route turned out to be the best choice — listing bees as falling under the same CESA category as fish.