Sound Fishy? California Court Rules That Bees Are "Fish" Under State's Endangered Species Act

• Published date: 10 June 2022
• Subject Matter: Environment, Government, Public Sector, Litigation, Mediation & Arbitration, Environmental Law, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Duane Morris LLP
• Author: Ms Michelle C. Pardo

A California Court of Appeal in Sacramento has created a buzz in ruling that bumblebees can be considered "fish" under the California Endangered Species Act (CESA). This decision reverses a lower court's ruling that bumblebees - which are terrestrial invertebrates ' do not fall within the categories of endangered, threatened or candidate species that the state law protects. The California Endangered Species Act (previously known as the endangered and rare animal legislation) directs the Fish and Game Commission (Commission) to establish a list of endangered and threatened species. Fish & G. Code ' 2070. Originally, Section 45 of the CESA defined "fish" as "wild fish, mollusks, or crustaceans, including any part, spawn or ova thereof," but was amended in 1969 to include invertebrates and amphibians. See Stats. 1969, ch. 689, Section 1. Subsequent amendments made only stylistic changes. See Stats. 2015, ch. 154 ' 5.

In 2018, several public interest groups petitioned to list the Crotch bumblebee, the Franklin bumblebee, the Suckley cuckoo bumblebee and the Western bumblebee as endangered under the CESA.

After the Commission designated four bumblebees as candidate species under consideration for listing as endangered, in 2019 the Almond Alliance of California, and a coalition of growers' associations and farm and agriculture organizations, filed a petition for writ of administrative mandate, which challenged the Commission's decision to list the bumblebees, arguing that as terrestrial invertebrates, they did not fall within the definition of protected species and are not birds, mammals, fish, amphibians, reptiles or plants. The trial court granted the writ petition, finding that the Commission had violated its legal duty, was clear legal error, and was an abuse of discretion. The trial court concluded invertebrates were denoted only as connected to a marine habitat, and therefore would not cover insects such as bumblebees.

The Court of Appeal, however delivered a stinging defeat by ruling that bees fall within the definition of "fish" in the CESA. Wait, what? While the headlines jeered the "bees are now fish" ruling, a journey through the CESA's legislative history provides the explanation.

In making its determination, the Court of Appeal noted that the application of definitional Section 45 in the CESA created "textual tension" with the Legislature's inclusion of amphibians in various sections of the CESA and in the definition of fish. Recognizing that...