California, the beloved state of my birth, has declared in a court of law that bees are fish.
I’m not kidding.
This decision was received about as well as you can expect (badly) and quickly became fodder for jokes and memes on social media.
What is interesting about this case is that while it was the judge’s absurd ruling made headlines, this was still the result of the California legislature that was decades in the making.
In 1970, the California Endangered Species Act (CESA) passed three years before similar legislation was undertaken by the Federal Government (1973). The act was amended in 1984 and again in 1997. The problem is that “fish” are defined in section 45 of the California Fish and Game code as follows: “Fish” means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.”
To the chagrin of biologists the world over, the legislature defines “fish” as a bunch of things that aren’t “fish,” like bugs (invertebrates) and lobsters (crustaceans).
The addition of invertebrates and amphibians to section 45 happened in 1969. That section has remained untouched with the exception of stylistic changes added in 2015. As the judge notes in their ruling, this was done with the express intent to increase the scope of species under regulation. A land dwelling snail was added to the state’s threatened species list in the 1980’s despite both being a bug and also, not a water bug.
I say the following playfully to intentionally incense readers: I think the judge’s ruling is a better example of originalism than of activism. The State legislature tasked the Fish and Game Commission with bugs, so bugs we get.
I really want to underscore how results like this are something we should expect from a democratic process in the real world. In an ideal world, narrowly written legislation that targeted the problem of dead bees would be debated then enacted. Instead, we get a regulatory game of telephone that started in the 1970’s when Sacramento essentially said, ‘Bugs are fish, pass it on.’
This kind of ridiculousness exists because actually writing new legislation would make individual politicians responsible for the unintended consequences of that legislation. Vaguely written legislation diffuses responsibility onto the courts and bureaucrats as they are the ones who must decide how the legislation is to be enforced.
What we consider a bug (pun intended) unscrupulous politicians might consider a feature.
Cases like this open a can of worms (pun intended) because of regulatory uncertainty. Even though the merits of the case revolved around the definition of a fish, the real question on everyone’s mind is what happens if other insects are added to the endangered and threatened species lists?
Bees are big business in agriculture. One estimate of commercial beekeeping is that it adds upwards of $20 billion to the value of agriculture in the US. In 2021, over 2 million hives were imported to the state just to fertilize almond orchards. Animals covered by the CESA cannot be imported or exported from California. Uh-oh.
Regardless of one’s position on environmental regulation, until this uncertainty is resolved, the politics around the issue will remain contentious. The legislature needs to take some responsibility and either affirm the court’s ruling or tell the Fish and Game Commission to buzz off!
Stewart Dompe is a Fellow at Young Americans for Liberty. He has written for the Washington Times, the Foundation for Economic Education, and US News & World Report. He earned his PhD in Economics from George Mason University, and his B.A. in Economics from Santa Clara University. He is from California and lives in Northern Virginia.
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