By Wesley A. Miliband, Kristopher T. Strouse
In Almond Alliance of California v. Fish & Game Commission the Third District Court of Appeal answered the question of whether terrestrial invertebrate species can be protected under the California Endangered Species Act (CESA), holding that four bumble bee species were eligible for listing under the CESA under the definition of “fish.” In coming to this conclusion, the Court of Appeal took a deep dive into how the CESA defines fish and reasoned that the term is defined broadly enough to allow for the inclusion of the four bumble bee species despite the surface level confusion such a reading might cause. [Almond Alliance of California v. Fish & Game Commission, 79 Cal.App.5th 337 (3rd Dist. 2022).]
Background
In October of 2018, several public interest groups petitioned the Fish and Game Commission (Commission) to list four species of bumble bee as endangered species under the CESA. The Commission accepted the petition for consideration in June of 2019 and ultimately provided notice that the four species were to be listed as candidate species as defined by Section 2068 of the CESA. Following this notice, several agricultural industry associations filed a petition for a writ of administrative mandate challenging the decision to list the four species as candidates. The Superior Court for Sacramento County granted the petition and the public interest groups, as intervenors, appealed. The issue to be heard on appeal was whether the bumble bees, as terrestrial invertebrates, fall under the definition of fish as that term is used in §§ 2062, 2067, and 2068 of the CESA.
The Court of Appeal’s Decision
Section 45 of the Fish and Game Code defines the term “fish” broadly to include any “wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” In the court of appeal’s opinion in the case of California Forestry Association v. California Fish and Game Commission, 156 Cal.App.4th 1535 (2007), the court explained that:
. . .while the definition of threatened species and endangered species in the CESA includes ‘native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant,’ the Legislature has narrowed the definition of ‘fish’ to mean that which falls within the definition of section 45.
Looking to Legislation and the California Forestry Association Decision
Looking at the CESA’s legislative history, the court found it significant that the legislature was aware of this broad definition of fish—which included invertebrates—when the CESA was adopted. In supporting this finding, the Court of Appeal pointed that the Department of Fish and Game and Natural Resources Agency had issued an analysis of the proposed legislation in which the two agencies explicitly stated that the Commission’s listing authority extended to invertebrates such as insects. Accordingly, with all that in mind, the court reached its first conclusion, finding it abundantly clear that the definition of fish included the term invertebrate—a term which the four bumble species fell under—and that the Commission therefore has the authority to list invertebrates as endangered or threatened species.
As for the terrestrial portion of the term “terrestrial invertebrate,” the court cited to the listing of the threatened trinity bristle snail. Originally listed under the 1970 endangered and rare animals legislation, the trinity bristle snail was expressly grandfathered into CESA as a threatened species when the CESA was adopted. The Legislature therefore, according to the court, approved of the Commission’s decision to list a terrestrial mollusk and invertebrate as a rare animal under the 1970 legislation. In other words, the Legislature approved of the Commission’s interpretation that § 45 of the Fish and Game Code gave it the authority to list a terrestrial invertebrate under the definition of fish.
In reaching its second and ultimate conclusion, the Court of Appeal reaffirmed and expanded upon its conclusion in California Forestry that Section 45 defines “fish” as the term is used in sections 2062, 2067, and 2068 of the CESA, and further concluded that the Commission has the authority to list any invertebrate as an endangered, threatened, or candidate species, so long as it meets the requirements in those definitions of the CESA.
Conclusion and Implications
Through the court’s vast discussion on the subject and examination of the legislative history behind the CESA, the court made clear that the inclusion of invertebrates—all invertebrates—was deliberate and cannot be written off as an unintended consequence of the wordsmithing of the CESA. This opens up a vast host of opportunities for the inclusion of many other species that fall under the newly clarified category of species that are ripe for official listing under the CESA, including species such as the monarch butterfly which has been at the forefront of conservation efforts for some time now. Looking forward, this case will undoubtedly embolden many public interest groups to come forward and file new petitions for CESA protection in light of the court’s decision. The court’s opinion is available online at: https://www.courts.ca.gov/opinions/documents/C093542.PDF
