When the Supreme Court last week denied review of the Court of Appeal opinion holding that “the bumble bee, a terrestrial invertebrate, falls within the definition of fish [in the California Endangered Species Act],” Chief Justice Tani Cantil-Sakauye issued a separate statement. (See here.) Joined by two other justices, the Chief Justice stressed that the denial of review “does not communicate any particular view regarding the merits of the issues presented in the petition” and thus “is not an endorsement (nor is it a rejection) of the statutory analysis undertaken by the Court of Appeal.”

She also commented, “Yet if experience is any guide, our decision not to order review will be misconstrued by some as an affirmative determination by this court that under the law, bumble bees are fish.”

The LA Times was right on cue. It published a front page story with the sub-headline, “Bumblebees can be classified as ‘fish’ under conservation law, high court rules.” The article said that the court “has found that California bumblebees can be protected under the law as a type of fish” and that, “[i]n writing for the court, . . . Chief Justice Tani Cantil-Sakauye said that even though the law does not use the word ‘insects,’ sections of the law suggest that invertebrates may be grouped under the category of fish.”

The article did go on to mention that the Chief Justice “also warned against misconstruing the decision as ‘an affirmative determination by this court that under the law, bumblebees are fish.’ ” But still, the article is at best misleading. It portrays the separate statement as a court opinion and as agreeing with the Court of Appeal’s decision on the merits. The separate statement wasn’t and it didn’t.