Legal briefs filed over bumblebee protection efforts

By Ching Lee

Considering the pivotal role that pollinators play in food production, California farm groups say they would prefer to work with the state to strengthen management policies to protect the insects.

Instead, they find themselves in court, resisting California's ongoing efforts to grant bumblebees protection under the California Endangered Species Act.

Last year, a state Superior Court in Sacramento blocked the state's attempt to list the bumblebee under the California ESA and grant it protection as fish. The state appealed.

Now farm groups have filed additional legal briefs challenging efforts by the California Fish and Game Commission, the state Department of Fish and Wildlife and three conservation groups that seek to overturn the Superior Court ruling.

The case is important because it could set a precedent and impact other petitions to list insects under the state ESA, said Sunshine Saldivar, associate counsel for the California Farm Bureau. Species listings could impact farming activities in the state, including grazing, pesticide use and placement of honeybee hives for crop pollination.

Saldivar noted that California farmers and ranchers have already made "significant investment in efforts to improve habitat for pollinators," including for bumblebees and honeybees.

For example, she said, they've planted hedgerows to provide habitat and implemented management practices to reduce impacts from pesticide use.

"The farming community offered to work with the Newsom administration to develop stronger law and policy to protect pollinators rather than continuing to litigate the matter after the trial court ruling, but they chose to move forward with the appeal," Saldivar said.

At issue is whether insects such as bumblebees are eligible for listing under the state ESA, which extends protections to birds, mammals, fish, amphibians, reptiles and plants.

Unlike federal law, state law does not include insects as eligible for listing. Nevertheless, the commission voted in 2019 to designate the Crotch bumblebee, Franklin's bumblebee, Suckley cuckoo bumblebee and western bumblebee as candidates for ESA listing.

When a species becomes a candidate, it is given full protection under state law, Saldivar explained. This means it is prohibited to kill, or "take," without a permit or other authorization.

The state based its listing decision on a provision of the Fish and Game Code, which defines fish to include invertebrates and other aquatic life forms. Because bumblebees and other insects are invertebrates, the commission argued, then they may be listed under the state ESA.

In its decision late last year, the trial court rejected the state's argument, saying that "a counterintuitive mental leap is required to conclude that bumble bees may be protected as fish." It said that the Fish and Game code's definition of "fish" applies only to marine invertebrates, not to terrestrial insects such as bumblebees. The ruling said the commission lacks authority to add bumblebees as candidates for endangered-species protection.

In their legal brief to the state Third District Court of Appeal in Sacramento, farm groups pointed out that listing insects under the state ESA has been considered—and rejected—in the past.

In the 1980s, the Office of Administrative Law and the state Legislature denied the commission's attempt to list butterflies. Subsequently, the California Court of Appeal determined that the state ESA does not protect insect species. In the 1990s, the state attorney general also concluded that insects cannot be listed. The California Legislature in 2017 reaffirmed that position when considering Senate Bill 49.

Calling the state's arguments "convoluted," farm groups contend that the commission's interpretation of "fish" would lead to "absurd results." Anyone who engages in a business involving insects would be required to obtain a commercial fishing license. The state's interpretation could mean that chemicals commonly used for insect control may not be allowed on board fishing vessels if insects are fish.

If granted, the bumblebee's listing would require California farmers and ranchers to "drastically change their farming practices," Saldivar said. She noted that conservation groups requested agricultural changes to protect bumblebees and their habitat. This includes reduced grazing, restricted pesticide and herbicide use, limits on where honeybee hives can be placed and restrictions on the use of bumblebees for commercial pollination, she said.

In addition to the Farm Bureau, the coalition includes the Almond Alliance of California, California Citrus Mutual, California Cotton Ginners and Growers Association, Western Agricultural Processors Association, Western Growers Association, Western Plant Health Association and Wonderful Co. LLC.

Reply briefs by the state and conservation groups are due this month. Once all briefs are filed, the appellate court will set a date for oral arguments, which are expected to be held sometime next year.

(Ching Lee is an assistant editor of Ag Alert. She may be contacted at clee@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.