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‘Are Bees Fish’ Argument May Lose in Endangered Species Case (1)

Nov. 13, 2020, 8:28 PMUpdated: Nov. 13, 2020, 10:10 PM

It turns out bees may not be fish, at least in one California courtroom.

A Sacramento Superior Court judge on Friday took under reconsideration a tentative ruling that set aside a state Fish and Game Commission’s decision that would have considered four species of bumblebees for protections under the California Endangered Species Act.

Insects aren’t specifically protected under the state law. But proponents of listing the Crotch, Franklin’s, Western, and Suckley cuckoo bumblebees argued that the pollinators fell under the definition of fish—which are eligible, because they are invertebrates and don’t have backbones.

In a tentative ruling issued Thursday, Judge James Arguelles sided with the Almond Alliance of California, California Association of Pest Control Advisers, the California Cotton Ginners and Growers Association, and other agriculture industry groups who opposed listing the species because state law clearly didn’t protect insects.

Nossaman LLP attorney Paul Weiland, who represents the groups, said they were pleased the court was taking the ramifications of the commission’s rulings seriously.

“We are disappointed that the state continues to engage in revisionist history to support its position,” Weiland said.

Entitled to List

The commission voted in June 2019 to consider the bumblebees for listing, triggering a year-long review period. If approved by the commission, that could have led to pesticide restrictions, grazing rules, and other habitat protections. The lawsuit from agriculture groups followed that September.

The Xerces Society for Invertebrate Conservation, based in Portland, Ore., filed the petition and intervened in the lawsuit, saying the species have lost habitat, have low population numbers, and are susceptible to disease and pesticides.

“If this tentative ruling is finalized, it will be a bad day for pollinators and for bumblebees especially,” Sarina Jepsen, Xerces’ endangered species program director, said in an interview.

Xerces and the Fish and Game Commission argued that the definition for endangered, threatened, and candidate species, which is the category the bumblebees fall under now, needed to be harmonized with other definitions in Fish and Game Code. Nonfish invertebrates like freshwater shrimp, crayfish, and snail have been listed, they said, according to the ruling.

Deputy Attorney General Jeffrey Reusch, who represents the commission, said the legislature used invertebrate as a broad definition to include insects in 1984 legislation—though that word was struck from the final bill.

“The plain language that the legislature wrote was the word invertebrates,” Reusch said during the court hearing. “I think we have to assume that the legislature knew what it was talking about when it used that word, and it’s a word that I don’t think anyone could look at and not recognize as being exceptionally broad.”

‘Mental Gymnastics’

Arguelles wasn’t so sure. “Wouldn’t it have been easier to say insect at some point if that’s what they really wanted?” he asked, adding that the state’s argument required some “mental gymnastics.”

The Almond Alliance and others said the commission exceeded its authority because invertebrate protections apply to marine animals, and pointed to a 1998 state attorney general’s opinion, saying as much.

The state Office of Administrative Law in the 1980s also wouldn’t approve the commission listing two butterfly species under the fish definition.

“The absence of authority to list insects under CESA, either as fish or otherwise, is clear,” Arguelles wrote in a tentative ruling Thursday. “As a result, CESA’s purposes do not confer authority that the Legislature withheld.”

The case is Almond Alliance of California v. California Fish and Game Commission, Cal. Super. Ct., No. 34-2019-80003216, 11/13/20.

(Updated in the fifth paragraph to include comment from the Almond Alliance attorney.)

To contact the reporter on this story: Emily C. Dooley at edooley@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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