Last updated on June 3, 2022
A California court ruled Tuesday that four bumblebee species must be protected by the state’s endangered species protection statute.
The California Court of Appeals decided that a statute allowing protection of any “bird, mammal, fish, amphibia or reptile” determined by the state’s Game and Fish Commission to be “endangered or threatened” justified the listings.
Advocates for bee conservation, who defended a decision to list the bumblebees in the face of litigation launched by an array of agricultural interests, cheered the ruling.
“The court’s decision allows California to protect some of its most endangered pollinators, a step which will contribute to the resilience of the state’s native ecosystems and farms,” Sarina Jepsen, the Xerces Society for Invertebrate Conservation’s Director of Endangered Species, said.
At the core of the dispute was an argument over the reach of language in the law that defines a fish. The Golden State’s legislature, according to Justice Ronald B. Robie’s opinion, specifically defined a fish to include “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.”
Robie wrote that, despite the “ambiguous” definition, the statute’s legislative history and the interpretive views of it by the state’s natural resources agency indicated that the California General Assembly intended it to apply to terrestrial insects.
He explained that the Game and Fish Commission has a decades-long practice of applying the law to invertebrates, including the Trinity bristle snail, the Shasta crayfish, and a freshwater snail species, even though that type of organism is included in the definition of “fish” instead of as a separate statutory classification of organisms alongside amphibians, birds, fish, mammals, and reptiles.
The state legislature knew of that practice when it last significantly amended the endangered and threatened species law in 1984.
“Legislative acquiescence in the face of a responsible agency’s known construction of a statutory term indicates the Legislature did not intend to disturb the agency’s interpretation,” Robie wrote.
Not only that, Robie said, but the legislature approved of the earlier listings of invertebrates when it enacted substantial amendments to the law in 1984. “The Legislature’s overt act in that regard cannot be ignored,” he wrote.
Robie also pointed to the legislature’s 2015 effort to make minor changes to the law as evidence that it intended the definition of “fish” to apply to insects. He pointed out that the Court of Appeal ruled in 2007 that invertebrates fall under that statutory category of organisms eligible for protection.
“When the Legislature amends a statute without changing the statute in response to a prior judicial construction, it is presumed the Legislature knew of the interpretation and acquiesced to it,” Robie wrote.
Robie also dismissed a 1988 California attorney general’s opinion that read the law as excluding insects from its reach.
He said that the 1984 General Assembly did not have the benefit of that opinion and that, instead, the attorney general at that time took a different view. Moreover, Robie said, the 1988 attorney general’s opinion did not actually analyze the statute and did not consider the Game and Fish Commission’s long history of listing invertebrates.
Robie and two other judges also rejected an argument that a statutory definition of fish that included invertebrates could be applied to insects that live in water, but not on the land. Robie’s opinion cited the listing of the Trinity bristle snail, a land-dwelling invertebrate, that occurred prior to 1984 as a persuasive indicator that the General Assembly meant the definition to apply to all invertebrates.
“We conclude a liberal interpretation of the Act,12 supported by the legislative history and the express language in [the statute] that a terrestrial mollusk and invertebrate is a threatened species (express language we cannot ignore), is that fish, defined. . .as a term of art, is not limited solely to aquatic species,” Robie wrote.
Justices Cole Blease and Andrea L. Hoch joined Robie’s opinion.
The four bumblebee species affected by the ruling are the Crotch bumblebee (Bombus crotchii), Franklin bumblebee (Bombus franklini), Suckley cuckoo bumblebee (Bombus suckleyi), and Western bumblebee (Bombus occidentalis).
All four of the species are far less abundant than they were in the past.
According to the Xerxes Society, B. franklini has not been seen in the wild since 1986, while B. crotchii‘s numbers have fallen by about 98% and B. occidentalis populations are down by about 84%.
B. suckleyi is considered by the International Union for the Conservation of Nature to be critically endangered.
Like all bumblebees, individuals of all four bumblebee species are pollinators. About one-third of all food production depends on pollinators, according to the Center for Food Safety, and about three-fourths of all fruit and vegetable crops are more productive when serviced by them.
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