State Supreme Court rejects review of bumblebee status

By Peter Hecht

Bumblebees may be considered as fish under the California Endangered Species Act, and the pollinators can get protection as threatened species under state law.

That interpretation now stands after the Supreme Court of California rejected legal challenges from agricultural groups, including the California Farm Bureau.

The state’s high court last week declined to grant a review of an appellate court decision. The appellate ruling declared that bumblebees—a nonaquatic invertebrate—could be listed under a state Endangered Species statute applying to fish because both are invertebrates.

The legal fight over seemingly arcane statutory language could have significant impacts on farming activities in California.

Agricultural groups argued that protections for the bumblebees could affect grazing and growing crops, herbicide and pesticide applications, and use of commercial honeybees to pollinate crops.

“The listing of these species is a violation of trust and good will with the almond farmers who’ve invested in developing the largest working land pollinator habitat acreage in the nation—160,000 acres,” said Aubrey Bettencourt, president and CEO of the Almond Alliance.

She said the decision could “disincentivize any good pollinator support practices,” adding, “It renders the millions of state and federal dollars for pollinator habitat and protection absolutely wasted.”

The Almond Alliance was an appellant in the case Almond Alliance of California v. Fish and Game Commission, along with Farm Bureau, California Association of Pest Control Advisers, California Citrus Mutual, California Cotton Ginners and Growers Association, Western Agricultural Processors Association, Western Growers Association and The Wonderful Company.

Chief Justice Tani Cantil-Sakauye wrote that the court’s decision to deny a review in the case should not be “misconstrued by some as an affirmative determination by this court that under the law, bumble bees are fish.”

Cantil-Sakauye wrote, “A better-informed observer might ask: How can the court pass up this opportunity to review the Court of Appeal’s interpretation of the Fish and Game Code, which seems so contrary to common knowledge that bumble bees are not a type of fish?”

But she said the state Supreme Court wasn’t going to wade into the matter to “divine legislative intent” behind the language in the Endangered Species Act.

California Farm Bureau Senior Counsel Kari Fisher said legal options may be limited now that the Supreme Court has declined to hear the case. “Any attempt to change the court of appeal’s decision will have to either occur through the Legislature or via some other court case in the future,” she said.

The matter will now move to the regulatory front, with four subspecies of bumblebees undergoing a 12-month status review with the California Department of Fish and Wildlife, Fisher said. Next, it would be up to the Fish and Game Commission to accept the review and make a final decision on each subspecies.

Two years ago, Sacramento County Superior Court Judge James Arguelles sided with farmers in ruling against a 2019 effort by the Fish and Game Commission to consider protections for bumblebees.

Arguelles ruled that the definition of “fish” applies only to marine invertebrates, not to terrestrial insects such as bumblebees. Subsequently, the state and three environmental groups appealed.

In May, the Third District Court of Appeal in Sacramento said it took a more “liberal interpretation” in concluding the law read more broadly to cover all imperiled invertebrate species, including bees.

“Although the term ‘fish’ is colloquially and commonly understood to refer to aquatic species,” that court said, “the term of art employed by the Legislature in the definition of fish … is not so limited.”

Bettencourt said allowing such an interpretation to stand “is ridiculous, as it changes the meaning of words in our society.”

(Peter Hecht is chief editor of publications for the California Farm Bureau. He may be contacted at phecht@cfbf.com.)