Bees Are Fish, But Review Denials Are Not Precedent

Timothy Kowal, Esq.
September 29, 2022

In a bizarre ruling earlier this year, the Court of Appeal held that bumble bees are fish, at least for purposes of the California Endangered Species Act. (Jeff Lewis and I covered this in episode 38 of the California Appellate Law Podcast, and Prof. Shaun Martin’s writeup is here.) The California Supreme Court was asked to review the result, and the Supreme Court denied review.

But the Supreme Court does not want you to think that that means it agrees that bees are fish. Or vice versa. The Chief Justice specially concurred in the denial of review to explain that denials of review are perfectly enigmatic: it could mean the Court thinks the result was bosh, or that it was brilliant, or that it has no opinion whatsoever.

You are not alone. The Chief Justice knows that many will look at the Supreme Court’s denial of review and interpret it as “an affirmative determination by this court that under the law, bumble bees are fish.” But that would “misconstrue” the denial of review, the CJ said, because a denial of review means nothing at all.

In case you are wondering how to interpret the Supreme Court’s denials of review, here is what the Chief Justice has to say about them:

“Our denial of a petition for review does not communicate any particular view regarding the merits of the issues presented in the petition. Thus, all should understand that our decision to deny review in this case is not an endorsement (nor is it a rejection) of the statutory analysis undertaken by the Court of Appeal….”

But why would the Court pass up a golden opportunity of an interesting, and bizarre, issue of statutory interpretation, which seems to amount to “an important question of law” under Rules of Court, rule 8.500(b)(1), governing Supreme Court review? Again, the CJ anticipates your puzzlement. She collects several cases that remind us that of something important. The CJ is too gentle to say so, but recalling cases in which judges have held that “less” means “more,” that “unlawful” means “lawful,” that “seas” don’t necessarily mean water, that fish are intangible (and if I may append to this list, that wheat grown and consumed on your own property is interstate commerce), reminds us that judges have a high tolerance for the absurd. They are interpreting the enactments of politicians, after all.

As the CJ puts it, “These kinds of seemingly illogical outcomes can in fact best capture the enacting legislature’s intent in a variety of circumstances.” So “Even if the Court of Appeal arrived at what might superficially seem like a counterintuitive result, that alone does not establish that it erred.”

Not to worry, the Court can still weigh in later: “our decision not to order review here does not prevent us from considering the CESA’s reach in some future case, at which time we may agree or disagree with the Court of Appeal’s analysis.” Until then, if the Legislature does think that lumping bees and fish together is stretching things a bit, it now is its chance to do something about it: “such decisions also can provide notice to legislators that some clarification may be in order.”

As for your cases, now you know not to read anything in to the fact the Supreme Court has denied review of an opinion.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

Get a weekly digest of these articles delivered to your inbox by subscribing here: