Jun 72022

California Appeals Court Rules That State Endangered Species Act Protects All Invertebrates

Jagdeep Singh and Samuel B. Boxerman
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On May 31, 2022, the California State Court of Appeals for the Third Appellate District ruled that the California Endangered Species Act (State ESA or the Act) protects all invertebrates. Expanding on the 2007 decision in California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1552, the court opined that the Act bestows the California Fish & Game Commission (Commission) with the authority to protect not just aquatic invertebrates but any invertebrates as endangered or threatened species. The opinion has garnered some interest because it finds that the Act deems any invertebrate as within the statutory definition of “fish.” In other words, invertebrates, not just aquatic but also terrestrial ones, are considered fish under the State ESA.

Upon appeal by the Commission and public interest groups, the court addressed the question of whether the Commission exceeded its authority when it designated four species of bumblebee — the Crotch bumblebee, the Franklin bumblebee, the Suckley cuckoo bumblebee, and the Western bumblebee — as within the Act’s definition of fish and listed them as candidate species under the Act. Looking for the legislative intent, the court found that the California legislature was aware at the time of the enactment of State ESA that the Commission was interpreting the term “fish,” in the statute, to include invertebrates, even the terrestrial ones. The court found that a subsequent state attorney general’s opinion to the contrary did not have sufficient persuasive value for, among other reasons, the opinion did not consider the relevant legislative history. The court also found case law and administrative construction subsequent to the enactment of the Act as less persuasive than the California Natural Resources Agency’s construction contemporaneous with the law’s enactment.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Jagdeep Singh

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

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