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In Almond Alliance of California v. Fish & Game Com. (2022) 79 Cal.App.5th 337, the Third District Court of Appeal held that the Fish and Game Commission (Commission) did not exceed its statutory authority under the California Endangered Species Act (CESA) when the Commission designated four bumble bee species as candidate species for consideration under CESA. In doing so, the Court found that these bees, which are terrestrial invertebrates, fall within the definition of a “fish” for purposes of CESA.

After receiving a petition from public interest groups to list the bees as endangered, along with a recommendation report supporting the listing from the California Department of Fish and Wildlife (Department), the Commission found there was enough information to declare the bees candidate species for listing under CESA. The Almond Alliance of California, along with other agricultural organizations (collectively, Petitioners), filed a petition for writ of mandate, arguing that the Commission’s listing of the bees as candidate species “violated the Commission’s legal duty, was a clear legal error, and was an abuse of discretion.” The trial court granted the writ petition, and the Commission, the Department, and intervening public interest groups appealed.

“Fish” are eligible for listing under CESA. Fish and Game Code Section 45, a section that predates CESA but has nonetheless been applied to it, defines the term. Under that provision, “‘Fish’ means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” As relevant here, the Commission argued that bees, types of invertebrates, fit within that definition. The Court of Appeal agreed.

Petitioners argued that applying Section 45 to define “fish” for purposes of CESA would render meaningless the Legislature’s act of including “amphibians” in the CESA definitions of threatened, endangered, and candidate species.  According to Petitioners, this indicated legislative intent not to apply Section 45’s definition of “fish” to CESA. The Court rejected this argument, noting that CESA does not define the term “fish” and that the Legislature was aware when it amended CESA of the Department’s practice of relying on Section 45’s definition of “fish” in applying CESA.  By not disagreeing with the Department or providing a different definition for purposes of CESA, the Legislature essentially ratified that practice. Further, the Court presumed that the Legislature was aware of prior judicial construction applying Section 45 to CESA when it made non-substantive changes to the section, showing further legislative acquiescence to Section 45’s application to CESA.

Petitioners argued that, even if Section 45 applied to CESA, the term invertebrates should be limited to aquatic invertebrates, due to the listing as a form of “fish.” Finding the statute to be ambiguous in this respect, the Court noted that both aquatic and terrestrial animals have been listed under the definition, and legislative history supported the inclusion of both under CESA. The Court highlighted the fact that the Trinity bristle snail, a terrestrial mollusk and invertebrate, had been listed since 1984, giving credence to the interpretation that terrestrial invertebrates may be listed under CESA.

As such, the Court ruled that invertebrates otherwise meeting the statutory criteria are eligible for listing under CESA.

Key Points:

  • Terrestrial invertebrates, such as bumble bees and monarch butterflies, are eligible for listing under CESA as invertebrates under the definition of “fish.”