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Voice of Experience

Voice of Experience: March 2023 | Transition

Fish Gotta Swim (Except Bumblebees), Birds Gotta Fly

Norm Tabler


  • In California, four species of bumblebees have been classified as threatened or endangered fish under the state's law, which has some peculiar implications.
Fish Gotta Swim (Except Bumblebees), Birds Gotta Fly

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If you live in California or plan to visit there, heed this caution: Don’t swat that bumblebee! Don’t even capture it in a jar! That bumblebee may very well be a fish protected by California law.

You read that correctly. Four species of bumblebees are now considered threatened or endangered fish under California law. Harm them at your peril.

If you don’t believe it, read the California Supreme Court’s September 21, 2022, opinion rejecting a challenge to a lower court ruling that four species of bumblebees are fish, protected by statute as threatened or endangered species. Almond Alliance of California v. Fish & Game Commission (79 Cal. App. 5th 337).

Was the Supreme Court aware that the ruling in question held that bumblebees are fish? The high court’s opinion leaves no doubt that it was aware—acutely aware. Was the court embarrassed? Well, maybe not embarrassed, but certainly self-conscious and more than a little defensive. Otherwise, why deem it necessary to point out that the U.S. Supreme Court once ruled that the term “seas” needn’t necessarily involve water, and another time that a fish is not a “tangible object.”

How Did This Happen?                                                           

You may be wondering how the court arrived at the conclusion that bumblebees are fish.

It started back in the fall of 2018, when public interest groups petitioned the Fish & Game Commission to list four bumblebee species as endangered species. The Commission referred the petition to the Department of Fish & Wildlife, which recommended acceptance of the petition. The Commission then provided public notice that the four bumblebee species were candidates to be declared endangered or threatened fish under the statute.

The Almond Alliance of California and other groups filed a petition for a writ of administrative mandate challenging the Commission’s decision. The trial court granted the writ, ruling that “the word ‘invertebrates’ in [Fish & Game Code] section 45’s definition of ‘fish’ clearly denotes invertebrates connected to a marine habitat, not insects such as bumble bees.”

The Commission, the Department, and the public interest groups seeking protection of the bumblebees appealed. The issue was whether the Commission had the authority to designate the bumblebee species as endangered or threatened species under Fish & Game Code section 2062 or 2067.

The court began its analysis by observing that its own 2007 decision had already confirmed that the Commission has the authority to list invertebrates as endangered or threatened. Therefore, the only issue was whether that authority was limited to aquatic invertebrates.

The answer, the court said, was easy because the definition of “fish” in section 45 already includes “mollusks, invertebrates, amphibians, and crustaceans, all of which encompass [both] terrestrial and aquatic species.”

Therefore, the court concluded, the Commission did, indeed, have the authority to do what it had done: classify four species of bumblebees as endangered or threatened fish, protected by California law.

Some Practical Implications 

What are the practical implications of the court’s ruling? We know, of course, that the ruling makes it illegal to capture, harm, or kill the four lucky species of bumblebees. But what about all other species of bumblebees? There are, after all, over 250 separate species. Presumably, if the four designated species are fish, then the other 246 or so species are fish, as well—but fish that remain fair game for bumblebee hunters.

Speaking of which, what do we call those brave bumblebee hunters? Are they fishermen? The court ruling suggests that the answer is yes. But then, how do we distinguish them from traditional fishermen, who never face the threat of a stinger? Should we call them bumblebeemenBumblebeepersons? Surely not bumblers.

Then there’s the licensure issue. Does a bumblebeeman (or person) need a fishing license? He or she is, after all, seeking to capture a fish, albeit hopefully not one of the four protected species.

What about the almost endless questions arising from the interchangeability of the words fish and bumblebee or bee: Can a restaurant legally serve bumblebee as fish? Do bumblebees qualify as fish fry fare? If a visiting Englishman orders fish and chips, may the waiter bring bumblebee (presumably fried) and chips?

What about sushi? Does raw bumblebee qualify? If a patron orders sushi, may the restaurant legally serve raw bumblebee? Is it mere coincidence that RAW BEE is another way to spell BEWARE?

Will California courts entertain the objection that opposing counsel is on a bumblebeeing expedition? Will children play a card game called Go Bumblebee? May a person speeding toward an object be described as making a fishline for it? Will coquettes be accused of bumblebeeing for compliments?

Perhaps most importantly, will other states follow California’s lead, as they have on so many other matters, such as right-turn-on-red?

There is no truth to the rumor that the California Boxing Commission has updated Muhammad Ali’s famous quote to read, Float like a guppy, sting like a jellyfish.