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Did the Court Really Say Bees Are Fish?

And would an AI-run court — which some propose — make a different decision? Not here because California law allows the interpretation

See headlines like:

“Great Day” For Bumblebees as Californian Court Rules That They Are Fish

and:

Bees are fish, California court rules

You’d believe, on reading them, that a California court recently ruled that bees are fish. Another eyeroll-worthy court decision! Readers here might muse, “An artificial intelligence-run legal system would never make such a crazy ruling!”

The Seemingly Boring Narrow Issue

Let’s skip past the exciting headlines. The California Court of Appeal in Almond Alliance of California v. Fish & Game Commission faced the issue of “whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species, threatened species, and candidate species” under specific sections of the California Endangered Species Act and California Fish and Game Code. Sounds technical — and it is.

Mysteriously Unstated Facts

Why was the court even considering whether bumble bees should be treated like fish? Great question – and the Court of Appeal decision entirely omitted any discussion of the underlying reasons why seven agricultural industry groups joined with the Almond Alliance to fight against calling a bumble bee a fish.

Nearly every published appellate decision in America recites at least the basic facts underlying the litigation as part of its opinion. A key element of due process in any important case is a written document that recites the underlying facts and rationales for the decision. Not in this case, however. Apparently, the court wanted to avoid press coverage of the damaging impacts of its “bees are fish” ruling.

Bee hives in the field and orchard
honey bee hives

The Almond Alliance and other food growers’ groups have explained California’s listing bumble bees as environmentally endangered species will result in:

• State imposing pesticide restrictions, grazing rules, and other habitat protections that may advantage certain bumble bees at the expense of human food production.

• State deeming commonplace farming and ranching activities as potentially harming bumble bee habitats, thus further discouraging agriculture.

• State regulations and directives that treat vital honey bees as enemies of bumble bees, and thus limit or reduce the number of already declining honey bee hives.

Just when you thought the “bees are fish” ruling was trivial silliness, you find that human food supplies and honey bee populations can both be reduced by the ruling – and the court sought to conceal that downside of its decision.

How the Court Decided a Bee is a Fish

In the Anglo-American common law tradition, legislatures enact laws with general language, and the courts flesh out the meanings of the laws as individual cases are litigated. Non-lawyers may not know the courts’ methods. The guidelines for interpreting statutes say the courts’ fundamental task is to “ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.” How is that done?

First, the courts will “give words their usual and ordinary meaning.” Interpreting a statute starts with reading its “plain language.” If the Almond Alliance court stopped there, then its ruling a bee is a fish would violate the plain language guideline.

In many situations, however, “the Legislature has provided a technical definition of a word.” The courts in such cases “construe the term of art in accordance with the technical meaning.” Ah — is the term “fish” a technical term, a term of art?

The Almond Alliance court answered yes: “We conclude … that fish defined in [Calif. Fish & Game Code] section 45, as a term of art, is not limited solely to aquatic species.”

Was the court crazy? Not really. Section 45 of Fish & Game Code says:

“Fish” means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.

The California legislature enacted Section 45 in 1957. Since 1969, Section 45 has included mollusks, invertebrates, and crustaceans. The legislature has known since 1984 that the state commission had listed as a rare animal a terrestrial mollusk and invertebrate. The legislature, not the court, defined a “fish” to include animals like frogs and snails; the legislature had acknowledged the commission considered “terrestrial invertebrates” as falling under the same laws as fish. So, would a bumble bee fall within the legislature’s intended meaning of the technical term “fish”?

Because the statute defines “fish” to include non-fish, it leaves the term ambiguous enough to require interpretation in specific cases. The Almond Alliance court followed the common approach by trying “to determine the Legislature’s intent when it enacted the Act, while construing the Act liberally,” as it must because the statute provides “for the conservation of natural resources” and thus is “of great remedial and public importance.” Remedial statutes like the environmental protection laws must be “construed liberally,” not narrowly tied to strict meanings of terms.

Fish & Game Code sections 2062, 2067, and 2068 define life forms that can be deemed “endangered” and “threatened” species. Sections 2062 and 2067 both refer to birds, mammals, fishes, amphibians, reptiles, and plants – they don’t mention insects. But both Sections provide than any animal deemed by the state commission to be “rare” before January 1, 1985, falls under the Sections’ scope.

Therefore, the Almond Alliance court concluded the legislature intended that land-based invertebrates be covered by the statutes.

     The court declared:

We conclude a liberal interpretation of the Act, supported by the legislative history and the express language in section 2067 that a terrestrial mollusk and invertebrate [can be deemed] a threatened species (express language we cannot ignore), is that fish defined in section 45, as a term of art, is not limited solely to aquatic species. Accordingly, a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under the Act.

The newsy sound-bites say the court declared a bee to be a fish. In fact, the court engaged in technical analysis of legislative language and meanings to decide the California legislature intended for rare species like the bumble bees to fall under the definition of “fish” that had included non-fish for many decades.

Would an AI Judge Decide Differently or Better?

The Almond Alliance decision follows a reasoning process known as “liberal interpretation to effectuate the remedial purpose.” Some commentators consider the decision terribly illogical and flawed, giving an absurd result. Indeed, the court could have ruled the opposite way. The decision might well have held that the California legislature could have included “insects” within its definition of “fish,” but since it didn’t, insects are not deemed legally fish.

Would an AI system help? Some people assert: “AI may be a more efficient way to resolve civil cases, while at the same time increasing predictability without creating a moral hazard.” But current AI methods would seem powerless to decide whether bumble bees should be treated as fish under California law.

For AI to analyze the Almond Alliance case using the methods of early chess playing algorithms like Deep Blue, the software programmers would have to envision a variety of language ambiguities and figure out how to resolve them using notions of ordinary vs. technical terminology, how previous courts analyzed analogous but not identical cases, the history of what the legislature did or did not do, the effect of the decision as a controlling precedent going forward, and more. Moreover, even if judicial AI software were programmable, it would directly reflect the programmers’ thought processes – not necessarily the various ways humans can address such problems.

More current deep learning AI methods run exhaustive analyses of thousands or millions of cases and outcomes, such as occurs in X-ray diagnostic assistance. Such methods draw from vast prior information within a confined decision space. Those methods wouldn’t apply to the Almond Alliance case. Interpreting a statute’s meaning, or how a new concept integrates with existing understanding of a statute, presents a one-time challenge. There is no sensible way to run millions of simulations of statutory interpretation to figure if bees are fish, varying some values while holding others constant. There is no data base of cases where life forms are categorized into California statutes; there is no deep learning to be done with empty datasets.

So, we’re left with human judges evaluating the work of human legislatures and addressing the conflicts over how power is deployed for or against people and groups in society. Moving past the “bees equal fish” technicalities, we might ask whether laws that discourage food production and limit honey bee populations are good laws for humanity in the long run. 


Richard Stevens

Richard W. Stevens is a lawyer and author, and has written extensively on how code and software systems evidence intelligent design in biological systems. He holds a J.D. with high honors from the University of San Diego Law School and a computer science degree from UC San Diego. Richard has practiced civil and administrative law litigation in California and Washington D.C., taught legal research and writing at George Washington University and George Mason University law schools, and now specializes in writing dispositive motion and appellate briefs. He has authored or co-authored four books, and has written numerous articles and spoken on subjects including legal writing, economics, the Bill of Rights and Christian apologetics. His fifth book, Investigation Defense, is forthcoming.

Did the Court Really Say Bees Are Fish?