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June 2, 2022

California Appellate Court Rules Bees are Protected “Fish”

A California Court of Appeal has ruled that bumblebees are eligible for protection as threatened or endangered “fish” under the California Endangered Species Act (CESA). The opinion reversed the trial court’s ruling in favor of Western Growers and six other agricultural groups. The trial court had concluded that the CESA, which extends to fish, mammals, birds, amphibians, reptiles and plants does not extend to insects. That view is shared in previous positions taken by the Office of Administrative Law, the Office of the Attorney General, and the California Department of Fish and Wildlife.

Writing for the court of appeal, Associate Justice Ronald Robie, said that “[a]lthough the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish [as defined in the CESA] is not so limited.”

The court of appeal was not persuaded by evidence that when the California legislature overhauled the CESA in 1984, it considered adding insects and plants to the categories of protected species and expressly decided to add plants, but not insects. The reports of the legislative committees that produced the CESA bill language plainly stated that insects cannot be listed as threatened or endangered species.

The decision could complicate ongoing efforts to manage farmland to protect wildlife and feed the nation and the world.

Western Growers and the agricultural coalition are carefully reviewing the decision and considering our options.

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.