Sound Fishy? California Court Rules That Bees are “Fish” Under State’s Endangered Species Act

by Michelle C. Pardo

A California Court of Appeal in Sacramento has created a buzz in ruling that bumblebees can be considered “fish” under the California Endangered Species Act (CESA).  This decision reverses a lower court’s ruling that bumblebees – which are terrestrial invertebrates — do not fall within the categories of endangered, threatened or candidate species that the state law protects.  The California Endangered Species Act (previously known as the endangered and rare animal legislation) directs the Fish and Game Commission (Commission) to establish a list of endangered and threatened species.  Fish & G. Code § 2070.  Originally, Section 45 of the CESA defined “fish” as “wild fish, mollusks, or crustaceans, including any part, spawn or ova thereof,” but was amended in 1969 to include invertebrates and amphibians.  See Stats. 1969, ch. 689, Section 1.  Subsequent amendments made only stylistic changes.  See Stats. 2015, ch. 154 § 5.

In 2018, several public interest groups petitioned to list the Crotch bumblebee, the Franklin bumblebee, the Suckley cuckoo bumblebee and the Western bumblebee as endangered under the CESA.

After the Commission designated the four bumblebees as candidate species under consideration for listing as endangered, in 2019 the Almond Alliance of California, and a coalition of growers’ associations and farm and agriculture organizations, filed a petition for writ of administrative mandate, which challenged the Commission’s decision to list the bumblebees, arguing that as terrestrial invertebrates, they did not fall within the definition of protected species and are not birds, mammals, fish, amphibians, reptiles or plants.  The trial court granted the writ petition, finding that the Commission had violated its legal duty, was clear legal error, and was an abuse of discretion.  The trial court concluded invertebrates were denoted only as connected to a marine habitat, and therefore would not cover insects such as bumblebees.

The Court of Appeal, however delivered a stinging defeat by ruling that bees fall within the definition of “fish” in the CESA. Wait, what? While headlines jeered the “bees are now fish” ruling, a journey through the CESA’s legislative history provides the explanation.

In making its determination, the Court of Appeal noted that the application of definitional Section 45 in the CESA created “textual tension” with the Legislature’s inclusion of amphibians in various sections of the CESA and in the definition of fish.  Recognizing that statutory canons are not “infallible,” the Court of Appeal looked to legislative intent. The Court found that legislative history supports the liberal interpretation of “fish” in the CESA:

“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 section 45 is not so limited.”

Opinion, Almond Alliance of California et al. v. Fish and Game Commission (Ct. of Appeal, Sacramento)(C09352) at 2.

But the legislative history behind invertebrates and the CESA has a bit of a tortured past.  As it turns out, in 1980, the Commission passed an amendment to the California Code of Regulations to include two butterflies as endangered and one butterfly and a Trinity bristle snail as “rare” (language later amended to “threatened”).  For those needing a brush up on critter biology, the Trinity bristle snail is a terrestrial gastropod that is both a mollusk and an invertebrate.  After the amendment was submitted to the Office of Administrative Law for approval and publication, it was disapproved because the Office determined that the CESA could not be construed to include “insects” within the definition of “birds, mammals, fish, amphibians or reptiles.”

A 1984 subsequent proposed amendment to the CESA contemplated adding “invertebrates” to the definitions of endangered and threatened species to clarify that they were protected, as well as any species the Commission previously had determined to be endangered or threatened prior to January 1, 1985 (which included invertebrates).  Nevertheless, it was removed from the proposed definitions.  Why was it left out?  The of Department of Fish and Game concluded that sufficient authority already existed to designate invertebrates and that adding the term would be confusing.

In response to a 1998 Assembly member request to clarify whether insects are eligible for listing under the CESA, the Attorney General’s office published an opinion recognizing that insects do not fall within any of CESA’s definitional categories and therefore were not eligible for listing as threatened or endangered species.

So whose interpretation carried the day?  While recognizing that formal opinions of the Attorney Generally are normally persuasive authority and entitled to great weight, the court was not persuaded that the Attorney General’s Opinion properly considered the definition section of the CESA.  Opinion at 24.  The court did find that the Department had a “long history of regulation and management of numerous classes of invertebrates” and indeed, three species of invertebrates already had been designated as endangered or rare (threatened) by the Commission.  Id. at 21.  The court also relied upon the fact that the Legislature did not act to clarify the CESA after the 2007 California Forestry Association decision (156 Cal. App.4th 1535), which ruled that Section 45’s “fish” definition applied to the endangered and threatened sections of the CESA.  “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.”  Opinion at 22 (citing People v. Blakeley (2000) 23 Cal.4th 82, 89).  The inclusion of the snail by the Legislature also was the “hook” that made the Court of Appeal find that a protected “invertebrate” could be of the terrestrial or the aquatic variety.

The Court concluded that the term “fish” was therefore a “term of art” and could encompass species that reach far beyond its colloquial meaning — a rationale that takes a bit of the “sting” out of the seemingly absurd “a bee is now a fish” headlines that followed the decision.

What are the practical effects of this ruling?  For the four bumblebee species, it means that mitigation measures and alternatives may need to be considered before certain activities (hunt, pursue, catch, capture, or kill or attempt to undertake these actions) can be undertaken.  Exceptions exist, including for acts of “lawful routine agricultural activities.” See Fish & Game Code  §  2087 (“accidental take”).

But what of the transportation of bees into California to pollinate almond crops?  California is the source of approximately 80% of the world’s almond supply and roughly 80% of all commercial bee colonies in the United States visit California to pollinate almonds.  Will this “transport” of an endangered species into and throughout California be considered to be part of the routine agriculture process, require an incidental take permit, or be outright illegal?  The practical effect on the California almond industry – which is extremely reliant on bees – may face an uncertain regulatory future.

 

COVID-19 In Animals Continues To Be Minor Issue In U.S.

While the overwhelming focus of the COVID-19 pandemic has been on the effect that the virus has had on humankind, there have been documented cases of the SARS-CoV-2 virus infecting animals.  The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) tracks the incidence of the the virus in animals in the U.S.   That analysis continues to show that infection in animals is quite small. Continue reading “COVID-19 In Animals Continues To Be Minor Issue In U.S.”

Ecuadorian Animal Rights Decision is Mixed Bag

Animal rights activists have pointed to a recent decision by the highest court in Ecuador — the Constitutional Court (Corte Constitucional Del Ecuador) — as a breakthrough for animal rights.  As the NonHuman Rights Project (NHRP)  described it, the decision “constitutes one of the most important advances in the field of animal rights and environmental law in recent years. . . .  The Court’s groundbreaking ruling advances the constitutional protection of animals — ranging from the level of species to the individual animal — with their own inherent value and needs.”

Upon closer examination, the Court’s Final Judgment is not as far-reaching as has been claimed.  Continue reading “Ecuadorian Animal Rights Decision is Mixed Bag”

Is California’s Dog and Cat Bill of Rights a Trojan Horse?

by Michelle C. Pardo

On February 8, 2022, California Assemblyman Miguel Santiago (D-Los Angeles) introduced Assembly Bill 1881, referred to as the Dog and Cat Bill of Rights.  The purported purpose of the bill is to inform potential adopters of the care needed to create a healthy environment for their adopted pets.

While recognizing that existing animal welfare laws address animal abuse and neglect, the pet-centric Bill of Rights seeks to codify dog and cats fundamental rights and impose new duties on local public officials and organizations to post these rights so that adoptive families can be informed of pet ownership responsibilities. Continue reading “Is California’s Dog and Cat Bill of Rights a Trojan Horse?”

Two Major Animal Rights Initiatives Rejected in Switzerland

On February 13, as millions of people in the U.S. prepared for and watched the Super Bowl, voters in Switzerland rejected two significant animal rights initiatives.  As reported (here and here) by SWI swissinfo.ch — the international unit of the Swiss Broadcasting Corporation — the proposed measures included a country-wide ban on animal testing and a measure that would have given non-primate humans certain rights in the canton of Basel-Stadt. Continue reading “Two Major Animal Rights Initiatives Rejected in Switzerland”

PETA’s Animal “Shelter” Continues High Euthanasia Rate

It’s that time of year again when animal shelters in the Commonwealth of Virginia must submit their annual summary of animal custody records to the Virginia Department of Agriculture and Consumer Services (VDACS).   Any shelter operating in Virginia must report how many animals it had on hand at the beginning of the year, how many it had at the end of the year and what happened to them.  Specifically, VDACS requires that the shelter report the number of animals euthanized. Continue reading “PETA’s Animal “Shelter” Continues High Euthanasia Rate”

Animal Rights Groups Don’t Want FSIS to Mandate Identification of Lab-Grown Meat Production Process on Product Labels

By Michelle C. Pardo

Four animal rights groups have submitted a joint public comment in response to the Food Safety and Inspection Service’s (FSIS) advanced notice of proposed rulemaking on the labeling of meat and poultry products comprised of or containing cultured cells derived from animals subject to the Federal Meat Inspection Act or the Poultry Products Inspection Act.

While cell-cultured or lab grown meat (also referred to as “clean meat” or “fake meat”) has been in the headlines for years, the road to federal regulation of such products and their debut on store shelves is still a work in progress.  We previously blogged about animal rights groups’ efforts to stop state consumer fraud laws from limiting their ability to label and market lab-grown, insect or plant-based foods.  (Read those blog entries here; here; here; and here).  But, the bigger stakes (steaks?) regarding meat labeling are set to occur at the federal level during the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS)’s rulemaking. Continue reading “Animal Rights Groups Don’t Want FSIS to Mandate Identification of Lab-Grown Meat Production Process on Product Labels”

North Carolina Jury Hands Down Felony Convictions for Animal Activist’s “Open Rescue”

by Michelle C. Pardo

Wayne Hsiung, animal activist and co-founder of Berkeley, CA-based animal rights group, Direct Action Everywhere (DxE), was found guilty by jury of felony larceny after breaking and entering and felony breaking and entering, for taking a goat from the Sospiro Goat Ranch in Transylvania County, North Carolina, back in 2018.

Hsiung, who had spearheaded DxE’s “open rescues” – illegally entering agriculture properties without permission and taking animals to liberate them – had been charged with criminal conduct in multiple jurisdictions.  In the North Carolina case, Hsiung claimed that he and the other DxE “investigators” entered the ranch to identify animals that were diseased or suffering from neglect.  According to the goat ranch, at the time of the “rescue” the baby goat was living with its mother and healthy and nursing well at the time of its theft. Continue reading “North Carolina Jury Hands Down Felony Convictions for Animal Activist’s “Open Rescue””

Maine “Right to Food” Constitutional Amendment On the Ballot

by Michelle C. Pardo

Maine voters will go to the polls today to vote up or down on whether to support a  “right to food.”   Today’s ballot will ask voters to decide if they want to amend the state constitution to include a right to:

“declare that all individuals have a natural, inherent and unalienable right to grow, raise, harvest, produce and consume the food of their choosing for their own nourishment, sustenance, bodily health and well-being”

Maine would be the first state to codify a right to food.  Supporters of the amendment have said that approval of the amendment will “enshrine in the most fundamental form of law their right to make their own choices when feeding themselves and their families” and also will “promote locally produced food products and improve consumer health and safety.” Continue reading “Maine “Right to Food” Constitutional Amendment On the Ballot”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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