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September 21, 2022

California Supreme Court Denies Review of an Appeal of Appellate Court Ruling That Bees are “Fish”

The California Supreme Court has denied a review of an appeal of a California Court of Appeal ruling from this summer that bumblebees are eligible for protection as threatened or endangered “fish” under the California Endangered Species Act (CESA).

The decision could complicate ongoing efforts to manage farmland to protect wildlife and feed the nation and the world. The four subspecies of bumblebee will now be subject to the 12-month status review process.

Paul Weiland, a lawyer for the agricultural groups challenging the ruling, told the San Francisco Chronicle he was disappointed by Wednesday’s court order.

“We are also concerned that the California Department of Fish and Wildlife, which for years took the public position that insects cannot be listed, is ill-equipped to handle the petitions to protect a range of insects that are headed its way and does not have the budget or expertise to do so,” Weiland said.

It is noteworthy that of the seven Supreme Court justices one voted to grant review and three signed on to a statement of explanation of their decision as follows. While this is little consolation, the Court went out of its way not to endorse the panel decision and also to suggest that the legislature could address the issue.

In her Statement, Chief Justice Cantil-Sakauye said:

“Our denial of a petition for review does not communicate any particular view regarding the merits of the issues presented in the petition. Thus, all should understand that our decision to deny review in this case is not an endorsement (nor is it a rejection) of the statutory analysis undertaken by the Court of Appeal, which determined that bumble bees, a nonaquatic invertebrate, are susceptible to being listed as endangered under the California Endangered Species Act … because that statute applies to fish …, and “invertebrates” are included within what the Court of Appeal deemed to be the applicable definition of “fish” … (Almond Alliance of California v. Fish & Game Com. (2022) 79 Cal.App.5th 337, 341.)

In June, the appellate court 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.