My Fish Would Not Start

In yet another interesting example of judicial interpretation, the California Court of Appeal has concluded that bees are fish. How could we miss a headline like that? Of all sources, it showed up in my news feed from the Sacramento Bee (a newspaper/website, not an actual Arthropoda, but I digress. Bees, you see are born in and primarily live in the water, swimming through their lives feeding on various insects, worms, other fish, and even mammals (sarcasm). Despite their clear fish heredity, many misconstrue bees as insects, and it is high time that someone stepped in and reminded us all of their Chordata roots and heritage (as you look for the comment button, please consider perceiving sarcasm instead). 

Yes, this blog is about workers' compensation and how that is connected to bees, insects, fish, or even California might be a little cloudy at the outset. Stick with it. Workers' compensation is all about the law, how it is interpreted, and how courts work in that process. Keep in mind that everything that is workers' compensation comes from statute(s) enacted by legislatures and interpreted by courts. So, when a court says a bee is a fish, perhaps that bears some consideration. 

California has an endangered species law that was passed in 1970. And, therein there are specific protections for "fish." We pause here to remind the reader that words often have common meanings, which we might all (or most) understand on their face. For example, the context of "up" or "down" might not require a lot of interpretation or research. However, I note as I age, the definition of "old" seems to be reasonably open to interpretation (from my perspective it only refers to those my senior, but I keep meeting young people who think it refers to me). 

In light of the potential that different people might have different perspectives on a word, it is not uncommon for a legislative body to define words either within a particular statute, or by reference to some other statute. In terms of Florida workers' compensation, remember that sections 440.02 and 440.13 each contain volumes of definitions that might be of import or assistance with interpreting many other sections within the workers' compensation statute. 

Well, the California Fish and Game Commission decided that "four bumble bee species" were in fact protected by the 1970 Endangered Species Act. Various agricultural interests appealed that decision, and a trial judge ruled in 2020 that the Commission was out of line. The trial judge concluded that the act protected only "invertebrates that live in marine habitats such as fish." Of note here, there are invertebrate aquatic species, but there are also many such species (fish) that have a backbone, look it up in your Britannica, or if you are bit older your Funk and Wagnalls (thanks for the laughs Rowan and Martin). 

The California 3rd District Court of Appeal disagreed in a brief 2022 ruling. And, as frequent readers of this blog will remember, in California not all court decisions are "published," that is rendered in a manner that may be cited and relied upon as precedent in other cases. This decision, however, is Certified for Publication, signaling a recognition by the Court that while its opinion is brief it is of significant import and precedential value. 

For clarity, the court began by stating the question, simply:

"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."

This is where many might begin to ridicule the court, as the answer seems (perhaps) a bit obvious, and therefore unworthy of discussion. A bee, you see, cannot be, a fish to me (a poet I am not). However, further consideration is indeed necessary in the context of statutory interpretation. In its consideration, the court noted that one statute portion, section 45, "defines fish as the term is used in (other) sections." 

Thus, the court conceded that "the term fish is colloquially and commonly understood to refer to aquatic species." However, it concluded that the word "fish" as used in the law is not the "commonly understood" word we might all take it to be. Instead, "fish" is a "term of art employed by the Legislature." In effect, the California legislature has defined "fish" differently than we might. And, that is legislative prerogative. 

In fact, if the California legislature chose to, it could define "fish" to mean:

"a usually four-wheeled automotive vehicle designed for passenger transportation."

As in, "everyone get in the fish we are going to the store." Or, "your honor we apprehended the defendant engaged in a illegal road race involving two fish." Maybe even "I'm sorry I'm late, but my fish would not start." 

A spokesperson for one of the interest groups involved in the litigation assured all "that reclassifying bumblebees as endangered species is 'absolutely essential' to their survival." Perhaps that is what she thought (bees should be fish), or perhaps she meant that she believes the court's interpretation is correct and that the law was intended to protect bees even though they remain largely in the Chordata rather than Arthropod Phyla? Again, it seems, I digress. I remember when I asked Mr. Leadbetter in 8th grade when I would ever need to know what a phylum or kingdom is. I was wrong, but in fairness I have made it many years without returning to either.  

In reaching its conclusion, the court noted that "the scope of the definition is ambiguous." It also concluded that it was best to consider "the legislative history," which it concluded "supports the liberal interpretation of the Act." We have all seen the "liberal interpretation" mantra applied by courts in the early days of workers' compensation, and the long legislative road that has slowly eradicated that (largely) judicially-created construct across the country in the workers' compensation community. Of note, also, is that despite this precatory "ambiguous" and "history" discussion, the Court actually merely followed the black letter of the law. 

The Court noted that "prior to 1969, section 45 defined fish as 'wild fish, mollusks, or crustaceans, including any part, spawn or ova thereof.'" That year (1969), however, "the Legislature amended section 45 . . . to add invertebrates and amphibia to the definition of fish." Some might argue that this was a gesture to jellyfish, worms, snails, crayfish, shrimp, lobster, etc. But, others might argue that the legislature could as easily have said "aquatic invertebrates" when amending this definition, if that is what was intended. In fact, we need not know the legislature's intent beyond that they said "fish" includes "invertebrates." Bees are invertebrates, and there you have it without ambiguity, history, or further analysis. 

According to the Bee (the Sacramento newspaper, not the insect, or "fish" if you will), "the term 'invertebrate' includes all animals without backbones, which make up the vast majority of life on earth." Thus, it is perhaps inaccurate to accuse the California Court of making bees fish, and more accurate to simply note that the California Legislature wrote a definition of "fish" that is very broad and non-specific. In short, the statute seems to define anything without a backbone is a fish, at least for the purposes of that statute, the endangered species act. Thus, the headline should perhaps read "California Legislature says Bees are Fish," but that, you see, was up to the Bee (the newspaper, not the Arthropoda).  

The decision is interesting reading, and there are of course those who are interested in how the statute and the court's interpretation are applied in terms of impacting wildlife, farming, and more. However, the decision really merely reminds us yet again of the perils of careful statutory drafting. If the intent was to include aquatic invertebrates, the Legislature should have (could have) said so. That it did not is perhaps sloppy or ill-considered, but those writing headlines to cast dispersion for the seemingly strange decision on the Court are misdirecting their ire, curiosity, or ridicule.  

The Legislature having chosen not to, and having included a single word that encompasses "the vast majority of life on earth," it may legitimately be seen as having either failed miserably or succeeded masterfully in its efforts. That is, if it intended to have a law that applies to almost everything, but without saying so and subjecting itself to criticism, it chose a great, generic, and broad word. However, if it intended to provide protection to the shrimp, lobster, and jellyfish, but was less than careful with its word choice, it certainly failed spectacularly. 

Did the Legislature effect what it intended or completely miss the boat? Much like the Tootsie Pop Owl's conclusion, See Tootsie Pops Make you Think (August 2021), perhaps the world will never know. However, we are thus provided a chance for retrospection, analysis, and maybe even a laugh or two in understanding the use of words.  

By Judge David Langham

Courtesy of Florida Workers' Compensation

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