What’s All the Buzz About? Bees and Other Terrestrial Invertebrates Now Eligible for California Endangered Species Act Listing

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What’s All the Buzz About? Bees and Other Terrestrial Invertebrates Now Eligible for California Endangered Species Act Listing

Earlier this week in Almond Alliance of California vs. Fish and Game Commission, the California Court of Appeal concluded that bumble bees are eligible for listing under the California Endangered Species Act (“CESA” or “the Act”). The court’s decision answers the long-lingering question of whether terrestrial invertebrate species may be protected under CESA. By answering that question in the affirmative, the decision throws open the door to listing of a wide variety of insect and other invertebrate species under the Act.

The court’s opinion in Almond Alliance considered a challenge to the California Fish and Game Commission’s 2019 designation of four bumble bee species as candidates for listing under CESA (the Crotch bumble bee, Franklin bumble bee, Western bumble bee, and Suckley cuckoo bumble bee). Reversing a trial court decision invalidating the Commission’s 2019 action, the Court of Appeal concluded the bee species were indeed eligible for listing under CESA as “invertebrates” as that term is used in California Fish and Game Code section 45, which defines the word “fish.” Because CESA empowers the Fish and Game Commission to list “fish” as endangered or threatened species under CESA, and because section 45’s definition of “fish” references invertebrates, the Court concluded the Commission “may list any invertebrate as an endangered or threatened species under [CESA], if the invertebrate meets the requirements of [the statute].” (Emphasis added.) In other words, all invertebrates—including terrestrial invertebrates such as insects—are now “fish” for purposes of CESA and are therefore eligible for listing under the Act.

This case is notable for many reasons:

  • Clarity: The court cleared up a decades-long debate regarding whether CESA’s protections extend to terrestrial invertebrates. In doing so, the court expressly rejected a 1998 California Attorney General Opinion that concluded insects were ineligible for listing under CESA. That Opinion had guided CESA practitioners’ thinking on the scope of CESA for close to a quarter-century.
  • Immediate Impact: The four species of bumble bees at issue in the case should again become CESA-listing candidate species in short order. The Fish and Game Commission may ultimately determine not to list some or any of these species. However, while they are designated as candidate species, “take” of these bees will be prohibited unless authorized by an incidental take permit issued by the California Department of Fish and Wildlife.
  • Long-term Implications: Insects and other invertebrates are already eligible for protection under the federal Endangered Species Act (“FESA”), and several federally-listed invertebrate species like the Valley Elderberry Longhorn Beetle and several fairy shrimp and butterfly species occur throughout California. While Almond Alliance theoretically expands the universe of species that might be listed under CESA, the practical impacts of this expansion are likely to depend on whether the Fish and Game Commission elects to list invertebrate species that are already protected under FESA. If Almond Alliance ultimately leads to CESA-listing of species already protected under FESA, effects on land development, agricultural and industrial activity across the State would likely be limited. On the other hand, CESA-listing of invertebrates not already protected under FESA would likely expand mitigation requirements (and costs) for projects and activities likely to result in take of those species.

If you would like to know more about CESA or the implications of Almond Alliance for your business or development project, please reach out to the authors of this alert or any other member of Cox Castle’s Land Use and Natural Resources team.

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