Law Review: There’s something fishy about the bees
Bees are insects. Insects are not fish. Bees are not fish. Simple analysis. And, simply wrong. Bees are fish, according to the California Court of Appeal, Third Appellate District. Fishermen, elementary school science teachers, and all you befuddled readers, take a deep breath. The entire study of biology has not been turned on its head. But in the context of the California Endangered Species Act (“Act”), bees are now fish.
In Almond Alliance of California, et al. v. Fish and Game Commission et al., the court of appeal determined that bumble bees, “terrestrial invertebrates,” may be entitled to protection as endangered or threatened species as “fish,” as such term is defined under the Act.
The Act authorizes the California Fish and Game Commission (“Commission”) to establish a list of threatened and endangered species and specifically names birds, mammals, amphibians, reptiles, and fish, as groups under which particular species may be listed for protected status. But here’s the rub if you’re a bug, the Act is silent as to insects.
The Act defines “fish” to include a “wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,” and if you are science savvy – which this columnist is not – you know that insects are invertebrates. If insects are invertebrates, they must be fish too. Or so goes the legal logic. Now back to the bees.
In 2018, a handful of public interest groups – including the wonderfully named Xerces Society for Invertebrate Conservation – petitioned the Commission to include four distinct bumble bee species on the list of endangered species: the Crotch bumble bee (sounds painful); the Franklin bumble bee; the Western bumble bee; and, the Suckley cuckoo bumble bee (great name). The Commission accepted the petition and subsequently provided public notice that the four bumble species were candidates for endangered species status.
But bees are not for everyone – just ask Macaulay Culkin in “My Girl.” And so, the Almond Alliance of California, along with a number of other agricultural-minded plaintiffs – including the wonderfully named The Wonderful Company LLC – field a petition for writ of mandate in the Superior Court of Sacramento County to challenge the Commission’s consideration of bumble bees as endangered species. The trial court ultimately sided with the Almond Alliance, ruling “the word ‘invertebrates’ as it appears in [the Act’s] definition of ‘fish’ clearly denotes invertebrates connected to a marine habitat, not insects such as bumble bees.” So, invertebrates can be fish, but only if they are of the aquatic kind.
Not so fast. The Commission appealed the trial court’s decision, arguing that terrestrial invertebrates – i.e., land dwelling insects, i.e., bumble bees – are fish, as defined by the Act. The court of appeal, for its part, acknowledged the Act is “ambiguous as to whether the Legislature intended for the definition of fish to apply purely to aquatic species.” To sort out the ambiguity, the court looked to the legislative history of the Act and its precursor legislation to conclude that where the definition of fish includes invertebrates, it applies to all invertebrates – aquatic and terrestrial.
In reaching its decision, the court pointed out “the Trinity bristle snail – a terrestrial mollusk and invertebrate” – is already listed as a threatened species under the Act. If a land snail can be a fish, so can a bumble bee. Snail. Bumble bee. Fish. It is all a matter of perspective. “Although 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 in the [Act] is not so limited.” Fish, like art, is in the eye of the beholder. And that is a good thing for bumble bees.
The appellate court’s decision paves the way for the four candidate bumble bee species to be listed as endangered or threatened species under the Act. But almonds are king, especially in California, so the decision will likely be appealed to the California Supreme Court. If all else fails, almonds should consider becoming fish. If you can’t beat them, join them.
Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He has a diverse background in trial practice ranging from complex business disputes to personal injury to construction law, and all matters in between. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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