Almond Alliance of Cal. v. Fish & Game Comm'n

• Decision Date: 31 May 2022
• Docket Number: C093542
• Citation: 79 Cal.App.5th 337,294 Cal.Rptr.3d 603
• Parties: ALMOND ALLIANCE OF CALIFORNIA et al., Plaintiffs and Respondents, v. FISH AND GAME COMMISSION et al., Defendants and Appellants; Xerces Society for Invertebrate Conservation et al., Interveners and Appellants.
• Court: California Court of Appeals Court of Appeals

79 Cal.App.5th 337

294 Cal.Rptr.3d 603

ALMOND ALLIANCE OF CALIFORNIA et al., Plaintiffs and Respondents,

v. FISH AND GAME COMMISSION et al., Defendants and Appellants;Xerces Society for Invertebrate Conservation et al., Interveners and Appellants.

C093542

Court of Appeal, Third District, California.

Filed May 31, 2022

Rob Bonta, Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Eric M. Katz, Supervising Deputy Attorney General, Jeffrey P. Reusch and Adam L. Levitan, Deputy Attorneys General, for Defendants and Appellants California Fish and Game Commission and California Department of Fish and Wildlife.

Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Deborah A. Sivas, Matthew J. Sanders, and Stephanie L. Safdi, San Francisco, for Intervenors and Appellants Xerces Society for Invertebrate Conservation, Defenders of Wildlife, and Center for Food Safety.

Nossaman, Paul S. Weiland, Robert D. Thornton, Benjamin Z. Rubin, and Samantha Savoni, Irvine, for Plaintiffs and Respondents Almond Alliance of California et al.

Robie, J.

The California Endangered Species Act (Act) ( Fish & G. Code,¹ § 2050 et seq. ) directs the Fish and Game Commission (Commission) to "establish a list of endangered species and a list of threatened species." (§ 2070.) The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species (i.e., species being considered for listing as endangered or threatened species) in section 2068 of the Act. More specifically, we must determine whether the Commission exceeded its statutorily delegated authority when it designated four bumble bee species as candidate species under consideration for listing as endangered species.

We first reaffirm and expand upon our conclusion in California Forestry Association that section 45 defines fish as the term is used in sections 2062, 2067, and 2068 of the Act, by application of section 2. ( California Forestry Assn. v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535, 1552, 68 Cal.Rptr.3d 391 ( California Forestry Assn. ).) That means the Commission has the authority to list an invertebrate as an endangered or threatened species. We next consider whether the Commission's authority is limited to listing only aquatic invertebrates. We conclude the answer is, "no." Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.

We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened species. We thus agree with the Commission, the California Department of Fish and Wildlife (Department), and intervenors Xerces Society for Invertebrate Conservation, Defenders of Wildlife, and Center for Food Safety (collectively public interest groups) that the trial court erred when it reached a contrary conclusion.² We accordingly reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND³

IThe Definition Of Fish In Section 45

Section 45 is located in chapter 1, "general definitions" (bolding and capitalization omitted), of division 0.5, "general provisions and definitions" (bolding and capitalization omitted) of the code. Prior to 1969, section 45 defined fish as "wild fish, mollusks, or crustaceans, including any part, spawn or ova thereof." In 1969, the Legislature amended section 45 via Senate Bill No. 858 (1969 Reg. Sess.) (Senate Bill 858) to add invertebrates and amphibia to the definition of fish. (Stats. 1969, ch. 689, § 1.) Section 45 has been amended only once since 1969 -- in 2015 (effective January 1, 2016), when the Legislature made nonsubstantive stylistic changes, modifying the definition to read " ‘[f]ish’ means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals." (Stats. 2015, ch. 154, § 5.)

When Senate Bill 858 was moving through the Legislature, the Department and Natural Resources Agency submitted an enrolled bill report in support of the bill, stating "[t]he expanded definition of fish will permit closer control and monitoring of the harvest of species such as starfish, sea urchins, sponges and worms, and the ... Commission will be authorized to make regulations deemed necessary for proper protection and management of these species." (Dept. Fish & Game and Natural Resources Agency, Enrolled Bill Rep. on Senate Bill 858, July 24, 1969.) The Department of Finance also submitted an enrolled bill report regarding Senate Bill 858. The Department of Finance therein stated: "By expanding the definition of fish as proposed in this bill, it will be possible for the ... Commission to regulate the taking of amphibians (frogs) and invertebrates, such as starfish, sea urchins, anemones, jellyfish and sponges." (Dept. Finance, Enrolled Bill Rep. on Senate Bill 858, Aug. 1, 1969.)

Section 2 in the same chapter as section 45 provides the definition of fish governs the code and regulations adopted under the code, "[u]nless the provisions or the context otherwise requires."⁴

IIThe 1970 Endangered And Rare Animals Legislation

"California has been at the forefront of enacting legislation to protect endangered and rare animals -- first doing so in 1970." ( California Forestry Assn. , supra , 156 Cal.App.4th at p. 1540, 68 Cal.Rptr.3d 391.) The 1970 endangered and rare animals legislation (1970 Legislation) provided "[n]o person shall import into this state, or take, possess, or sell within this state, any bird, mammal, fish, amphibia or reptile, or any part or product thereof, that the commission determines to be an endangered animal or rare animal, except as otherwise provided in this chapter." (Former § 2052; see Stats. 1970, ch. 1510, § 3.) Former section 2051 defined " ‘[e]ndangered animal’ " as "an animal of a species or subspecies of birds, mammals, fish, amphibia, or reptiles, the prospects of survival and reproduction of which are in immediate jeopardy from one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, or disease"; and " ‘[r]are animal’ " as "an animal of a species or subspecies of birds, mammals, fish, amphibia or reptiles that, although not presently threatened with extinction, is in such small numbers throughout its range that it may be endangered if its environment worsens." (Former § 2051; see Stats. 1970, ch. 1510, § 3.)

IIIPertinent Listing History Under The 1970 Legislation

On June 27, 1980, the Commission unanimously passed an amendment to California Code of Regulations, title 14, section 670.5 to include as endangered animals the Lange's metalmark butterfly and the El Segundo blue butterfly, and as rare animals the Smith's blue butterfly and the Trinity bristle snail. The Trinity bristle snail is a terrestrial gastropod that is both a mollusk and an invertebrate.

The minutes from the meeting state the Commission's executive secretary reported the Commission had received a letter from Deputy Attorney General Denis Smaage, "which justified the Commission's authority to classify insects as rare or endangered," and reaffirmed the Commission had the authority to designate invertebrates as rare and endangered animals.

The Commission submitted the June 1980 adopted California Code of Regulations, title 14, section 670.5 amendment to the Office of Administrative Law for approval and publication.⁵ The Office of Administrative Law disapproved the request on the ground the 1970 Legislation could not "be construed to include insects within the definition of ‘birds, mammals, fish, amphibia, or reptiles.’ " The Commission asked for reconsideration, to which the Office of Administrative Law responded the Commission's remedy was to appeal the decision to the Governor, but the time to do so had lapsed.

At a meeting on August 1, 1980, the Commission considered whether to refile the rejected amendment "re: list of rare and endangered species of birds, mammals, fishes, insects, crustaceans, reptiles and mollusks." (Capitalization omitted.) The meeting minutes note the Commission's executive secretary "stated that the Commission had received a letter from Gene Livingston, Director of the Office of Administrative Law, which took exception to the Deputy Attorney General's opinion regarding the definition of insects as fish was in error. Mr. Livingston contended that insects are not fish and that the Commission lacked authority to list insects as endangered or rare species." The Commission's executive secretary requested authorization "to refile the order with the insects deleted from the list, and to then respond to concerns of Mr. Livingston with regard to the listing [of] insects." The Commission unanimously approved the executive secretary's request.

On September 6, 1980, the Trinity bristle snail was added to California Code of Regulations, title 14, section 670.5 as a rare animal. It was listed as a mollusk, which falls only within the definition of fish in section 45 as a species then protected under the 1970 Legislation. In other words, it did not otherwise qualify as a bird, mammal, amphibian, or reptile in former section 2051. (See Stats. 1970, ch. 1510, § 3.)

By 1984, the Commission had listed 65 endangered and rare animals under the 1970 Legislation. The Trinity bristle snail was one of the listed rare animals. The list also included two crustaceans -- the California freshwater shrimp as an endangered animal and the Shasta crayfish as a rare animal.

IVThe Act's Legislative History

In 1984, the 1970 Legislation was repealed and...