In an effort to qualify a wide variety of insects for endangered species status, the state Supreme Court has determined that California bumblebees can be legally protected as a type of fish.
The decision, which could have major implications for the state’s agricultural sector, focuses on the mysterious wording and complicated legal history of the California Endangered Species Act — a precursor to federal law.
The court said late Wednesday it would not hear arguments about whether the California Fish and Game Commission could consider granting protection to a number of bumblebee species whose populations are steadily declining. For the past three years, almond growers, builders and pesticide companies in the state have argued that bumblebees were exempt from listing because the state conservation law makes no mention of insects.
However, in a letter to the court, Chief Justice Tani Cantil-Sakauye said that while the law does not use the word “insects,” sections of the law suggest that invertebrates can be grouped under the category of fish. She also suggested that the legislature is “able to make any legal changes it deems necessary or useful” to clear up such ambiguities in the Endangered Species Act.
Cantil-Sakauye also warned against misinterpreting the decision as “an affirmative finding by this court that bumblebees are fish by law.”
Wednesday’s decision was quickly praised by conservation groups.
“We are delighted with the decision of the California Supreme Court,” said Sarina Jepsen, director of endangered species at the Xerxes Society for Invertebrate Conservation. “Now some of California’s most endangered pollinators can be saved from extinction.”
The dispute arose after a coalition of conservation groups led by the Xerces Society, Defenders of Wildlife and the Center for Food Safety petitioned in 2018 to protect four species: the western, Franklin’s, Suckley’s cuckoo and Crotch’s bumblebees.
The California Fish and Game Commission voted to start the incorporation process, but several interests in the agricultural and pesticide industries — including the Almond Alliance of California, the California Assn. of Pest Control Advisors and the California Building Industry Assn. — challenged his decision.
They feared listing the four species would open the door to protection for one of California’s more than 1,000 species of native bumblebees, as well as countless other insects.
The controversy doesn’t involve scientifically bred honeybees on which California’s farming communities depend for the pollination and production of one-third of the country’s vegetables and most of the world’s almonds.
However, the agricultural industry has complained that some of the native bees eligible for inclusion by the commission overlap with key agricultural areas where tillage, planting and harvesting activities could expose farmers and their workers to liability if protected bees are killed.
For example, the California Building Industry Assn. in court documents that the right to define terrestrial invertebrates as fish “could effectively make a criminal out of anyone who has ever beaten a fly, ran over an ant, or eaten an aphid hidden in their broccoli without a ‘fish license’.” .”
In Almond Alliance vs. California Fish and Game Commission complained the groups that the Endangered Species Act explicitly allows the government to designate native species “birds, mammals, fish, amphibians, reptiles or plants” but excludes invertebrates such as bees.
However, the committee argued that a separate section of the state fish and wildlife code defines fish as “wild fish, mollusks, crustaceans, invertebrates, or amphibians.”
A Superior Court lawsuit sided with industry groups.
In 2021, the Stanford Environmental Law Clinic intervened on behalf of the petitioners, who appealed.
In May, the court’s ruling was overturned by a judgment of the California 3rd District Court of Appeal, which found that the state legislature defined the term “fish” as “a wild fish, mollusk, crustacean, invertebrate, amphibian or part, spawn or ovum of any such animal.”
Therefore, the definition of ‘fish’ by the Endangered Species Act is a legal term in art that goes beyond the commonly understood meaning of ‘fish’.
Whether the highly controversial conservation law will ever be reopened for review by combative stakeholders remains to be seen. The California Endangered Species Act, first passed in 1970, was repealed and replaced with an updated version in 1984 and amended in 1997.
The court’s ruling left the world of native bee enthusiasts buzzing with rare, encouraging news.
It’s a world that seems pastoral and calm by nature, but is riddled with problems, including climate change, competition from farmed honeybees, shrinking habitats and pesticides.
On a recent morning, while awaiting the Supreme Court ruling, Krystle Hickman soared above clumps of buckwheat in the western Mojave Desert, using a camera to document native bees. The insects, some less than an inch long, drank nectar and collected loads of pollen.
“People tend to think of ecology as very large, landscape in scale,” said the 37-year-old. “But each of these shrubs exists as a kind of densely populated universe on its own.”
The photographer and artist has developed identification materials and photo galleries in recent years to give people a glimpse into often-overlooked natural communities shared by insects, including native bees.
“The Supreme Court decision is great news for these insects,” Hickman said. “They are worth studying, admiring and preserving.”