The Riverside Press-Enterprise
Judges should not give words new meanings
On May 31, the California Court of Appeal in Sacramento ruled that bumblebees can be classified as fish, so that the California Endangered Species Act can be made to apply to them.
The decision has received justified expressions of disbelief, amusement and national press attention about what the rest of America has come to expect from California.
It is actually more dangerous than those commentaries have suggested.
The decision is the latest example of legislative authority that has been allowed to be ceded to the executive branch, a trend at the federal level as well.
The decision to classify bumblebees as fish was originally reached by the California Fish and Game Commission, whose five members are appointed by the governor for six-year terms.
The California Legislature, however, passed the 1970 law that protected “native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant” that ‘is in serious danger of becoming extinct.” They did not say “insect.”
Within the categories the Legislature did provide in the law, the Commission was given authority to create a specific list.
Three organizations, the Oregon-based Xerces Society for Invertebrate Conservation, the Defenders of Wildlife and the Center for Food Safety, both headquartered in Washington, D.C. asked the commission to add four species of bumblebee to the list.
The commission agreed, fitting the bee under the fish category, since it had in the past considered other invertebrates (like snails and mollusks) as fish.
California farm groups, led by the almond growers, successfully sued to overturn that decision at the trial court, which ruled “fish” is what the California Legislature had said, and bumblebees, whether invertebrates or not, were not fish.
That was the decision just reversed by the Court of Appeal.
The California Legislature is the branch of government that decides the public policy of our state: here, the question of whether insects should be included in the extra level of protection of the California Endangered Species Act.
The federal Endangered Species Act (passed three years after the California law) does cover insects. Among the 95 listed as threatened or endangered, only one of the four bumblebee species appears.
In subsequent enactments of California’s law, the Legislature never chose to follow the federal approach by listing insects.
That should have ended the matter.
Instead, the commission acted as though insects were eligible.
The Court of Appeal allowed this, reasoning that, since the commission had included non-fish as fish before, it could do so again.
A particular irony of this story is that the groups seeking to call bumblebees fish were all out-of-state, and the opponents of the decision were California farmers who know better than most the value of preserving bee populations for pollination purposes.
The farmers, however, also knew that the regulatory burden following an endangeredspecies listing would outweigh the value the listing would have to protect bees.
Here was California’s executive branch overreaching to impose more burdens on its businesses than they would endure in the rest of the country (given there was no federal EPA endangered listing for three of the bumblebee species).
Encroachment on the legislative branch by the executive branch is an alarming trend. It has often occurred at the federal level.
President Carter ended America’s recognition of Taiwan by “communiques” rather than a treaty, since a treaty with China would have had to be ratified by two-thirds of the Senate.
President Obama suspended America’s immigration laws on his own, after Congress refused to exempt the “dreamers.”
President Clinton bombed Yugoslavia and President Obama bombed Libya in violation of the War Powers Act — let alone without a declaration of war, claiming bombing did not constitute “hostilities.”
Any one of these actions may have been necessary, but it wasn’t for the executive to decide.
The words in a statute have meaning, and our democracy is weakened by patent usurpations of the legislative branch’s authority to write those words.