by Justice William W. Bedsworth

Every now and again I lament the fact our federal judges seem to be higher in the case-assignment pecking order than we staties. Federal courts are accorded much more opportunity to incur the wrath of the populace than state courts. The feds regularly get to rule on things that anger half or more of everybody in America; I’m lucky if I can irritate Seal Beach. The state courts are hampered by their limited jurisdictions. Think about it. The Wyoming Supreme Court only gets the chance to offend a half-million people with its rulings. That’s all the people they got. Granted, most of those folks own guns, but still . . . . The Ninth Circuit regularly offends that many people with its lunch order.¹ And the feds regularly skim off all the best cases—like Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir. 1997), in which the Ninth Circuit limited copyright to humans (no copyright protection for extraterrestrials). And Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), in which it did so again (no copyright protection for monkeys).

I checked with the 9th Circuit clerk’s office and they have already assigned future non-human copyright infringement cases all the way down from dolphins to chipmunks and none of them go to state courts. Greedy bastards.

Granted, the wisdom of not letting me take a crack at cases like that is pretty much indisputable, but the point remains. There are plenty of state court judges with more discipline than I who could have been trusted to handle them.

But my purpose today is not to rage, rage against the exercise of might. Rank has its privileges. If the federal courts want to hog all the really good cases, I’m prepared to step aside and let them have the biggies.

As long as they also keep holding on to cases like United States v. 1855.6 Pounds of American Paddlefish Meat and 982.34 Pounds of American Paddlefish Caviar.²

That’s the caption of a case filed in the United States District Court for the Southern District of Indiana last November.³ The United States of America—the most powerful nation on earth now that Jon Snow has proven himself so undeserving of the Iron Throne and Daenerys Targaryen has disappointed the entire free world—is suing a ton of fish. And its eggs.

On paper, this is a mismatch. In the first place, the defendants—both parents and eggs—have no defense. They appear to be charged with being American paddlefish and American paddlefish eggs. Which they surely are.

And even if there were a defense, the client is unmanageable. I mean, put yourself in the position of defense counsel. Paddlefish are notoriously bad witnesses, and the eggs . . . well, no one in her⁴ right mind would put them on the stand.⁵

Talk about a slam-dunk for the U. S. Attorney’s Office. This is shooting fish in a barrel.⁶

Some poor federal public defender is going to have to get up and argue . . . what, that they weren’t fish? That they were birds? That the true culprit was their identical twin Jeffery, for whom they’re often mistaken?

So this isn’t going to be a contest. I’ll let the feds keep this one and . . .

WAIT! WAIT! STOP THE PRESSES! HOLD YOUR FIRE! I’VE JUST LEARNED THERE’S BEEN A NEW DEVELOPMENT IN UNITED STATES V. FISH AND FUTURE FISH, THE CASE ABOUT WHICH I’VE ALREADY SPENT 700 WORDS TALKING ABOUT.⁷

Seems the defendants have all died.

A ton of endangered American paddlefish and another half-ton of future paddlefish have expired while in the custody of the United States government, which had yanked them from the serene comforts of the Mississippi River⁸ and callously thrown them into a cell.

While waiting for their assigned public defender to arrive, the fish died. Shame, U. S. government, shame!

And the eggs . . . the eggs have ceased being eggs and become foodstuffs. And you don’t want to get me started on whether Mississippi caviar is the highest and best use of fish eggs.

So now the United States government is callously offering all these victims of its negligent icthyocide for sale!

An intrepid investigative reporter⁹ has determined that the fish are being auctioned to the highest bidder. Auctioned!¹⁰ Like so many . . . so many . . . hamburgers!

In fact, just like hamburgers, since the government calls them fish meat. If fish are meat, a lot of Catholics are in big trouble.

This transparent attempt to avoid suit by relatives of the doubtless much-lamented deceased paddlefish refugees¹¹ is probably legally sound. After all, the government filed a “Motion for Order Allowing Interlocutory Sale of Property and Substitution of Res,” and anything that sounds that impressive MUST be legal, right? The district court granted the motion, probably on exactly that basis.

But the ethics and morals of letting a suspect die in custody and then selling him/her/it (and his/her/its offspring!) smacks of a kind of pitiless self-interest not seen since the administration of James K. Polk.

Just as well then that it may not happen. Seems that while the fish were seized in November of last year, they were actually caught in May of 2017. So what the government now wants to auction off is two-year old fish.

And since the minimum bid for this prized lot is set at $95,380, it is not surprising—at least not to me—that no auction paddles have yet gone up for the auctioned paddlefish.¹² They didn’t sell.

There are several possible reasons for this. One is that the market for paddlefish may not be that big. I have never in my life seen paddlefish on a menu. I haven’t even seen it on the side of a can of cat food, so my guess is that the auction for a ton of this stuff could probably be held in my closet.

Another thing is that the seller is the United States government. If you’re buying something from somebody who is famous for buying $400 hammers and spending $615,000 to digitalize Grateful Dead memorabilia,¹³ you might just assume their $95,380 opening bid level was likely to be . . . well . . . somewhat inflated.

And you might be concerned that the fish themselves might be . . . well . . . somewhat inflated. I have been fortunate that my life has not previously involved exposure to two-year old fish, but my experience with dead trout in the eastern Sierra has been that if they lay out in the sun awhile they can get a bit puffy. I wouldn’t buy them at any price.

Which brings us to the key factor here, which seems to me to be something all lawyers know: The devil’s in the details.

The “detail” here is set out in the auction catalog for the ton-o-fish. It says, “Assets have been in climate-controlled storage since being seized in May 2017; temperature logs are not available.” (Emphasis added.)

Uh-huh.

No temperature logs, you say?

Two years, you say?

Sorry, Uncle Sam. I’m gonna pass.

You and the federal courts are gonna have to figure out what to do with this stuff. All 1855.6 plus 982.34 pounds of it.

But I’m still willing to help any way I can. Let me know when you need someone to decide the copyright protections accorded scallops. I’ll wait by the phone.

BEDS NOTES

1. Most of them at Mar a Lago.
2. Go ahead. Read it again. Read it as many times as you want. It’ll still say United States v. 1855.6 Pounds of American Paddlefish Meat and 982.34 Pounds of American Paddlefish Caviar. You are not hallucinating.
3. I’m not going to bother giving you a caption because . . . well, because it’s all over the intertubes for crying out loud, and besides, I’m gonna tell you way more about it than you wanted to know anyway. Why in God’s name would you need a case citation?
4. I chose the feminine pronoun because this is so clearly the kind of case the firm will stick a woman with.
5. Although I guess it wouldn’t really matter how believable the paddlefish were. Since we all know paddlefish can’t talk, if the defendant said anything, it would probably necessitate a defense verdict.
6. I’m sorry. I have no willpower at all.
7. Okay, truth be told, it’s not so much a development as my own change of course necessitated by more research. I’ve got a half-written column and a looming deadline here, and it turns out this case is nothing like what I thought it was. These are dead fish. It’s an in rem forfeiture action in which the fish are just property illegally caught. Maybe I shoulda paid more attention to Professor Louisell in Civil Procedure class.
   Fortunately, half my readership doesn’t read the footnotes, and the other half can’t be too discerning or they wouldn’t be reading my stuff, so I’m just gonna try to bluff my way through.
8. Yes, technically the United States government yanked them from the hold of a fishing boat which had put a few inches of metal hull between the fish and the water, but we aren’t gonna get hung up on technicalities here, are we?
9. That would be Kevin Underhill at Lowering the Bar.com.
10. I figure if I throw in enough exclamation points, it will make the government’s actions look worse. I’ve seen this technique tried before—always without success, but hey, I’m kinda desperate here.
11. I can’t imagine a clearer example of refugee status than a fish fleeing a fishing boat. Talk about an oppressive regime!
12. Hey, I confessed to lack of willpower six footnotes ago. Don’t blame me because you kept reading.
13. Honest. UC Santa Cruz (where else?) got the money
14.  

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.