Swimming with the bees

Is a bumble bee a fish?

Well, no. But our Chief Justice penned a rare statement last week that points out that is the wrong question to ask.

The occasion was our state Supreme Court's denial of review in Almond Alliance of California v. Fish and Game Commission, 79 Cal.App.5th 337 (2022), a Court of Appeal opinion holding that the Fish and Game Commission has the authority to classify four species of bumble bees as endangered under the California Endangered Species Act. The Commission found its bumble bee authority under the definition of "fish," which includes "invertebrates."

The Supreme Court denies a few thousand petitions for review each year, typically without comment. With this Sept. 21 denial, however, Chief Justice Tani Cantil-Sakauye published a three-page statement joined by two colleagues.

She started by explaining a point known to most appellate lawyers: the court's denial of a petition for review does not communicate a view about whether the Court of Appeal's decision was correct. In fact, per California Rule of Court 8.500(b)(1), the court's main criteria are whether there are conflicting opinions in the Court of Appeal and whether the case involves a particularly important state law issue.

That much could be said about any denial of review. But the Chief Justice then addressed a question about Almond Alliance that a hypothetical Californian might have. She asked: shouldn't the court correct a view that is "so contrary to common knowledge that bumble bees are not a type of fish" that it poses an important question of law?

The answer she provided is that the statutory interpretation issue is not so clear. Just because the court reached what "might superficially seem like a counterintuitive result, that alone does not establish that it erred." As she put it, "the context surrounding the use of a word or phrase within a statute can convey that it carries an unusual meaning, peculiar to that law."

The Chief Justice is telling us, I think, that the issue in the case is not simply whether, in ordinary parlance, bumble bees are fish. Rather, when the legislature has fashioned a particular statutory definition (here, of the word "fish") the court must interpret that definition. The ordinary meaning of a word may still govern or may play a role, but only if that's what the legislature intended. How the ordinary meaning fits is an interpretive question for the court - and in some cases a difficult one. See Frank H. Easterbrook, Statutes' Domains, 50 U. of Chi. L. Rev. 533, 536 (1983) (in determining the scope of a statute, "[t]he invocation of 'plain meaning' just sweeps under the rug the process by which meaning is divined.")

Consider a case where, a few years ago, the United States Supreme Court applied a statutory term in a manner that differed from its ordinary meaning. Yates v. United States, 574 U.S. 528 (2015), coincidentally also involved fish. A 5-4 majority held that a "fish" was not a "tangible object."

In common language, we all know a fish is a tangible object. Otherwise, a sushi chef's omakase would not be so filling. But the U.S. Supreme Court held that a fish was not one. Was the court, then, acting like Humpty Dumpty in Through the Looking Glass and assigning words whatever meaning it wished?

No, it wasn't. And that's because Yates's holding was not about what common parlance is. Rather, the Court was interpreting a statutory definition. In Yates, a ship captain had had his crew cast overboard some undersized red grouper to cover up his violation of conservation laws. Prosecutors charged the captain with impeding a federal investigation by destroying or covering up "tangible objects," in violation of 18 U.S.C. § 1519. That section was enacted as part of the Sarbanes-Oxley Act, passed in the wake of the Enron corporate accounting scandal.

For the Supreme Court, Justice Ruth Bader Ginsberg recognized that the dictionary definition of "tangible object" would include a fish. However, she wrote, the court's analysis "does not turn solely on dictionary definitions of its component words." Yates, 574 U.S. at 537. She wrote that "although dictionary definitions of the words 'tangible' and 'object' bear consideration, they are not dispositive of the meaning of tangible object in § 1519." Id. at 538.

Justice Ginsberg reasoned that Sarbanes-Oxley stated that it was directed at the destruction or falsification of "records" in investigations and bankruptcies, which helped explain what type of tangible objects were covered. Id. at 539. Its criminal penalties were for "altering documents." Id. "Tangible object" was the third in the group of terms "record, document, or tangible object." Id. at 544.

It was only in the context of that statutory definition that the Supreme Court held that a fish was not a tangible object. See Yates, 574 U.S. at 550 [Alito, J., concurring] ["the term 'tangible object' should refer to something similar to records or documents" and not a fish, antelope, colonial farmhouse, or oil derrick].

The majority's conclusion in Yates was disputable: Justice Elena Kagan's dissent argued that the term "tangible object" in the statute meant the same thing as it did in ordinary language. Yates, 574 U.S. at 553. But even Justice Kagan recognized that "context matters in interpreting statutes" and sometimes "the dictionary meaning of a disputed term cannot control." Id. at 555. Unlike the majority, she concluded that the context supported the ordinary meaning of tangible object, which included a fish.

So consider: the ordinary parlance question in Yates could be answered by a fifth grader. A fish most assuredly is a tangible object.

But the statutory interpretation question in Yates could almost have gone either way among nine Justices. On one Yates side, we found Justices Ginsberg, Roberts, Alito, Breyer, and Sotomayor. On the other side, we saw Justices Kagan, Scalia, Kennedy and Thomas.

Anyone who studies the opinions or record in Yates might reach the view that one side or the other is correct. But no one should think the issue is so simple that they could determine it simply by knowing that in ordinary parlance a fish is a tangible object.

And that is what I take from our Chief Justice's statement about Almond Alliance.

It was not lost on the court in Almond Alliance that a fish, "as the term is commonly understood in everyday parlance, of course, lives in aquatic environments." But in our Endangered Species Act, the definition of "fish" was crafted by the legislature to include "invertebrates." Almond Alliance spent its 35 pages analyzing the statute's language and its history.

According to Almond Alliance, before the Act was enacted in 1984, the Commission used the definition to classify as endangered an invertebrate species (the Trinity bristle snail) that was not a fish and not aquatic. The Legislature stated at the time of enactment that the existing classifications met the statutory definitions. Almond Alliance also relied on legislative history that suggested that the 1984 Legislature agreed that the authority to classify invertebrates extended to butterflies. Other prongs of the "fish" definition have been used to classify terrestrial species, such as the Siskiyou Mountain Salamander.

Perhaps Almond Alliance's conclusion is disputable, and appellate justices would divide on it, as in Yates. Perhaps other justices would weigh the ordinary meaning more heavily. But I interpret the Chief Justice's message as advising that no one should declare the matter as simple as declaring that a bee is not a fish, without engaging with the case's specifics.

All appellate judges learn that the actual task of statutory definition can be difficult, with cases where each side has something to commend it. The language the legislature uses is imprecise and sometimes in tension with itself or with the statute's purpose. Canons of construction can point in different directions. Ordinary meaning can be in tension with the statutory definition, or with the law's purpose.

In those senses, Almond Alliance is just another case. It differs, however, in that it interpreted the legislative definition of a word - "fish" - with an ordinary meaning familiar to everyone. Other statutory cases may raise similar interpretive challenges but not run the risk of wide concern about what the Chief Justice referred to as a "counterintuitive result." See, e.g., Pulliam v. HNL Automobile, 13 Cal.5th 127, 138 (2022) [construing, using ordinary parlance, the phrase "recovery hereunder by the debtor"].)

Some statutory interpretation questions are easy, and sometimes ordinary parlance provides a ready answer. But many disputes that reach the appellate courts cannot be determined without seriously grappling with the language used throughout the statute, as well as its history and purpose. And there may be reasonable views on both sides. The questions are pesky, and difficult. Just like shooting bees in a barrel.