Bees are ‘fish’ under Calif. Endangered Species Act – state court

USDA photo of the western bumble bee Bombus occidentalis
The Western Bumblebee, Bombus occidentalis, is seen in this undated U.S. Department of Agriculture photo. REUTERS/Stephen Ausmus/USDA/Handout
  • Law’s definition of fish includes all invertebrates, panel holds
  • Reverses win for agricultural interests that challenged listing

(Reuters) - Bumblebees are eligible for protection as endangered or threatened “fish” under California law, a state appeals court held in a win for environmental groups and the state’s Fish and Game Commission.

The Sacramento-based California Court of Appeal reversed a lower court’s ruling Tuesday for seven agricultural groups who argued that the California Endangered Species Act (CESA) expressly protects only “birds, mammals, fish, amphibians, reptiles, and plants” – not insects.

While “fish” is “commonly understood to refer to aquatic species, the term of art employed by the Legislature … is not so limited,” Associate Justice Ronald Robie wrote for the appeals court.

CESA itself does not define “fish,” but the law is part of the California Fish and Game Code. The code’s definition includes any “mollusk, crustacean, invertebrate (or) amphibian,” Robie wrote. All those categories “encompass terrestrial and aquatic species,” and the state legislature has already approved the listing of at least one land-based mollusk, the opinion said.

“Accordingly, a terrestrial invertebrate, like each of the four bumblebee species, may be listed as an endangered or threatened species,” Robie wrote, joined by Acting Presiding Justice Cole Blease and Associate Justice Andrea Lynn Hoch.

Matthew Sanders of Stanford Law School’s Environmental Law Clinic hailed the decision as “a win for the bumblebees, all imperiled invertebrates in California, and the California Endangered Species Act.” Insects are “foundational to California’s agricultural production and healthy ecosystems,” he added.

Sanders’ clients – the Xerces Society for Invertebrate Conservation, Defenders of Wildlife, and the Center for Food Safety – petitioned the Fish and Game Commission to add the Crotch's bumblebee, Franklin’s bumblebee, Suckley cuckoo bumblebee, and Western bumblebee to the state’s endangered species list in 2018.

The commission quickly designated all four as “candidate species,” providing them with interim protections while it considered whether to list them as endangered.

However, the Almond Alliance of California, the California Farm Bureau Federation, and five other agricultural groups filed suit in Sacramento County Superior Court to establish that CESA does not protect insects – a point on which the legislature, agencies, and courts have vacillated since 1980, they said.

In 2020, the Superior Court ruled that the law’s reference to “invertebrates” had to be read in context, and included only aquatic animals.

Paul Weiland of Nossaman, lead counsel for the agriculture groups, said in an email Tuesday that they were “disappointed” and reviewing the decision before deciding “whether to seek further review.”

Attorneys for the state did not immediately respond to requests for comment.

The case is Almond Alliance of California et al. v. Fish and Game Commission et al, Xerces Society For Invertebrate Conservation et al, intervenors; California Court of Appeal, Third Appellate District, No. C093542.

For Almond Alliance of California et al: Paul Weiland and Benjamin Rubin of Nossaman

For the Fish and Game Commission: California Attorney General Rob Bonta and Deputy Attorneys General Jeffrey Reusch and Adam Levitan

For Xerces Society For Invertebrate Conservation et al.: Matthew Sanders, Stephanie Safdi, and Deborah Sivas of Stanford Law School, Mills Legal Clinic’s Environmental Law Clinic

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