Tag: threatened species

Third District Holds Bumble Bees are “fish” under the California Endangered Species Act, Can Be Listed as Endangered or Threatened Species

In Almond Alliance of California v. Fish and Game Commission (May 31, 2022, No. C093542) __ Cal.App.5th __, 2022 WL 1742458, the Third District Court of Appeal held that bumble bees fall under the general definition of “fish,” as the term is defined in the California Fish and Game Code, because the definition includes terrestrial, as well as aquatic, invertebrates. Accordingly, bumble bees, which are terrestrial invertebrates, may receive protected status as endangered or threatened species under the California Endangered Species Act (“CESA”).

Background

In October 2018, several public interest groups petitioned the California Fish and Game Commission (“Commission”) to list four species of bumble bees as endangered. Soon after, the California Department of Fish and Wildlife (“Department”) issued a report declaring sufficient evidence for the Commission to accept the petition to list the species. The Commission acted accordingly, declaring the bee species as “candidate” species for further review by the Department.

In September 2019, Petitioners challenged the Commission’s decision to list the bumble bees as candidate species. They alleged the Commission violated its legal duty and abused its discretion because bumble bees are terrestrial invertebrates not included in CESA’s protections for “bird[s], mammal[s], fish, amphibian[s], reptile[s], or plant[s].” Furthermore, they asserted that section 45’s definition of “fish,” which includes invertebrates, refers only to aquatic invertebrates.

The trial court ruled for petitioners. The Commission, the Department, and several public interest groups appealed.

The Court of Appeal’s Decision

Section 45 Definition of “Fish” as Applied to Sections 2062, 2067, and 2068 of CESA

“Fish” as defined in section 45 of the California Fish and Game Code means “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.”  The Commission contended that this definition applies to the provisions of CESA which define endangered, threatened, and candidate species—sections 2062, 2067 and, 2068, respectively.

The Court agreed with the Commission, citing legal precedent and CESA’s legislative history. Specifically, the Court reaffirmed the holding in California Forestry Association v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535 that section 45 defines “fish” as the term is used in sections 2062 and 2067 of CESA. Additionally, the Court identified several instances in which the Legislature used or acquiesced to the use of the section 45 definition. For example, the Court highlighted that the Legislature expressly used the section 45 definition of “fish” when it enacted CESA, though it was within the purview the Legislature to create its own definition. Relatedly, the Legislature amended section 45 after the California Forestry Association decision, but stopped short of signaling its contrary intent from the holding in that case. Based on this evidence, the Court concluded that the Legislature intended for the word “fish” in sections 2062, 2067, and 2068 of CESA to take on the meaning as defined in section 45.

“Fish” Is a Term of Art Not Limited to Aquatic Species 

Petitioners asserted that even if section 45 applies to sections 2062, 2067, and 2068, the term invertebrates in the definition of “fish” should be read as being limited to aquatic invertebrates. However, the Court espoused the more technical definition of “fish” that encompasses all terrestrial and aquatic species that fall under the categories of “mollusks, invertebrates, amphibians, and crustaceans.”

The Court described how legislative history supports this definition. It explained that at the time CESA was enacted, several bill analysis reports noted that the Commission had the authority to designate insects as endangered or threatened. Additionally, the Court highlighted that the Commission previously approved a terrestrial mollusk and invertebrate, the Trinity Bristle Snail, as an endangered species and expressly reaffirmed its status upon CESA’s enaction. The Trinity Bristle Snail’s endangered status is an explicit example of the Commission using its authority to protect terrestrial invertebrates under the section 45 definition of “fish.”

Additionally, the Court noted that previous caselaw directs it to construe laws providing for the conservation of natural resources liberally.

Construing CESA liberally, and considering the legislative intent behind CESA, the Court concluded that “a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under [CESA].”

— Jordan Wright