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When a Bee Is a Fish in the Eyes of the Law

Last month, a California court held that for the purpose of receiving legal protection under the California Endangered Species Act (CESA), the act’s definition of “fish” is broad enough to include bees. At first blush, this decision may cause some head-scratching, so let’s begin with a brief background of the laws at play in this case.

A color photo of a bumble bee to the right of purple flowers, with an orange background.

bumble bee, my favourites of the pollinators. Photo by Flickr user
Deborah Freeman (July 19, 2020). Used under Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0).

CESA’s Procedures and Trial Court’s Decision

CESA is the California state equivalent to federal legislation known as the Endangered Species Act (ESA). According to the California Department of Fish and Wildlife (Department), “[p]lant and animal species may be designated threatened or endangered under CESA after a formal listing process by the California Fish and Game Commission.” A private party, such as an individual or organization, may initiate the listing process by submitting a petition to the Commission.

In 2018, conservation organizations petitioned the Commission to list four subspecies of bumble bees as endangered under CESA. The matter was then forwarded to the Department, which issued a report in support of listing these bees as endangered and referred the issue back to the Commission. The Commission subsequently found that these four bumble bee subspecies qualified as candidate species under CESA. In this case, the term “candidate species” refers to a species that the Commission is reviewing “for addition to either the list of endangered species or the list of threatened species[.]” In its findings, the Commission further directed the Department to submit a report outlining whether these species should be formally listed as endangered or threatened.

After the bumble bees were listed as candidate species, several agricultural industry organizations sued the Commission and the Department to set aside the listing decision. This matter was heard by a trial court, which granted the industry groups’ request and entered an order to that effect on November 13, 2020.

Appellate Court’s Analysis

The appellate court’s decision focused on statutory definitions under California’s Fish and Game Code, and the legislative history of amendments to those laws over the past several decades. In particular, the court reviewed the definitions of endangered species (section 2062), threatened species (section 2067), and candidate species (section 2068).

Each of these statutes provides that covered species include “native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant[.]” This portion of the code, however, does not elaborate on what qualifies as a bird, mammal, fish, and so forth. Based only on the qualified species listed above, bees and other land-dwelling invertebrates would not receive protection under the law. The court looked elsewhere in the Fish and Game Code for definitions to help clarify whether bees may qualify for protection under CESA. Importantly, the section 45 of the code defines “fish” as “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” (Emphasis added). According to the court, the term “invertebrate” under the definition of fish includes both aquatic and terrestrial invertebrates, such as bees. The court ultimately held as follows:

[W]e agree with the Department and the Commission that the Commission may list any invertebrate as an endangered or threatened species under 2062 and 2067, if the invertebrate meets the requirements of those statutes, and thus may also designate any invertebrate as a candidate species under section 2068, if the species or subspecies may otherwise qualify as an endangered or threatened species.

According to the case’s docket, as of the date of this posting, no party has submitted filings to appeal the court’s decision.

For more information about CESA’s listing process, helpful step-by-step guides and articles are available online.

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