Are Bees Fish? California Court Considers Novel Arguments in Endangered Species Case

Bees aren’t fish. Obviously, right? Not so fast.

The Xerces Society for Invertebrate Conservation (the Xerces Society), a Portland, Oregon-based nonprofit, created quite a buzz in October 2018 when it petitioned the California Fish and Game Commission (the Commission) to include four species of bumblebee on the state’s endangered species list. Under the California Endangered Species Act (CESA), anyone may petition the Commission to designate a species as endangered (“in serious danger of becoming extinct”) or threatened (“likely to become an endangered species in the foreseeable future”). (California Fish and Game Code Chapter 1.5, §§ 2062, 2067). After reviewing the petition, the Commission agreed and listed the species as endangered. This decision prompted a lawsuit from a variety of agricultural trade associations in California due to the potential implications of the listing for pesticide restrictions, grazing rules, and other habitat protections.

The agricultural trade associations, led by the Almond Alliance of California, asked the Sacramento Superior Court to set aside the Commission’s decision to list the Crotch, Franklin’s, Western, and Suckley cuckoo bumblebees. The trade associations argued that, pursuant to the CESA, the Commission may accept petitions only for “a native species or subspecies of a bird, mammal, fish, amphibian, reptile or plant.” Id. at § 2068. Notably absent from this list, they noted, is the term “insects.”

The Commission and the Xerces Society, who joined the litigation as an intervenor, claimed that the Commission has the authority to accept a listing petition related to bumblebees because the statute defines fish as “wild fish, mollusks, crustaceans, invertebrates, or amphibians, including any part, spawn, or ova thereof.” Id. at § 45. The Commission and the Xerces Society asserted that because bumblebees do not have backbones, and are therefore invertebrates, bees qualify as fish under CESA and can be listed as endangered under the statute. Moreover, they alleged that the Commission applied similar logic to make the invertebrate Trinity bristle snail eligible for endangered status in 1980 despite it being a terrestrial gastropod. Almond Alliance of California, et al. v. Cal. Fish and Game Comm’n, Case No: 34-2019-8000321 (Super. Ct. Ca. Nov. 13, 2020) at 6 (on file with author).

The Sacramento Superior Court was unpersuaded. Judge James P. Arguelles first observed that one of the cases that the Xerces Society and Commission cited in support of their position—California Forestry Assn. v. California Fish & Game Comm'n, 156 Cal. App. 4th 1535 (2007)—actually held that the definition of “fish” for CESA purposes is limited to wild fish, as opposed to fish of the same species raised in a hatchery. Almond Alliance of California at 4. In light of this precedent, Judge Arguelles reasoned, the word “invertebrates” in CESA’s definition of fish refers to only those invertebrates connected to a marine habitat. Id. at 4.

The court likewise refused the Commission’s request for judicial deference to its scientific expertise in light of CESA’s legislative history. The court recounted evidence from the legislative record demonstrating that the California Legislature removed the term “invertebrates” in the final version of CESA in 1984 even though earlier drafts of the statute included it, and despite being warned that CESA’s predecessor protected invertebrates. Id. at 4-5. Moreover, the court observed, California’s Attorney General (AG) concluded in a formal opinion issued in 1998 that CESA does not apply to insects. Because the Legislature has presumably been aware of the AG’s opinion since it was issued but has not acted to amend the statute, the court inferred the Legislature’s tacit support for excluding invertebrate insects from CESA protections. Id. at 4-5.

The most persuasive argument in favor of the Commission and the Xerces Society, the court acknowledged, is that provisions passed by the Legislature in 1988 create civil liability for a variety of activities related to “any plants, insects, or other species listed pursuant to the California Endangered Species Act.” Id. at 7; see California Fish and Game Code Chapter 1.5, § 2582. The court, however, determined that the reference to insects in the 1988 legislation was insufficient to support a ruling in their favor. Finding nothing in these provisions’ text or legislative history to suggest that the Legislature intended them to grant new authority to state agencies or broaden CESA’s reach, Judge Arguelles ruled in favor of the trade associations. Almond Alliance of California at 8-9.

The Commission and the Xerces Society have until January 16, 2021 to appeal the decision to the Third Appellate District of California’s Court of Appeal. For now, however, the pair mull whether and how to overcome the stinging loss.