When is a bee a fish?
When is a bee a fish?
California Court of Appeals Finds Invertebrates May Be Protected Under California Endangered Species Act
That was the question before the Third District of the California Court of Appeals. The California Fish and Game Commission had accepted petitions to list four native California bee species for protection under the California Endangered Species Act (CESA). A group of agricultural trade associations challenged the decision as exceeding the Commission’s authority under the CESA, on the grounds that terrestrial invertebrates are not covered by the CESA. The CESA provisions allow the Commission to designate native species of “birds, mammals, fish, amphibians, reptiles or plants”. Sections 2062, 2067 and 2068 of the California Fish and Game Code. A separate section of the California Fish and Game Code (Section 45), in the general definitions of the entire Fish and Game Code, defines fish as including “wild fish, molluscs, crustaceans, invertebrates, or amphibians. The Commission argued that the definition in Article 45 applies to the term “fish” in the CESA, allowing the listing of invertebrates.
The Third District agreed with the Commission in a long and thorough opinion that digs (very deeply) into the weeds of the legislative history of CESA and Section 45, and examines a range of principles of statutory interpretation. . I think the California Supreme Court is unlikely to take up this case to overturn the Third District.
What interests me here, however, are not the merits (or demerits) of the Court of Appeal’s analysis. The Commission now has a solid basis to list more invertebrate species under CESA. Given the large number of endangered invertebrate species in California and their importance to the state’s ecosystems, this is generally a good thing from a conservation standpoint. When I wrote a series of proposals to reform and improve the CESA last year, one of the problems I pointed out was the uncertainty as to whether invertebrates could be protected by the CESA, and I encouraged the legislator to resolve this uncertainty by explicitly adding invertebrates to the CESA. Now that the courts have largely resolved this uncertainty, this is an important step in improving the functioning of the CESA, although much remains to be done.