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Are Bees Fish? The Courts May Have to Decide in California

June 12, 2019, 11:17 PM

A California board is considering listing four species of bumblebees as endangered, and the debate may lead to an interesting question: Whether bees are legally the same as fish.

The California Fish and Game Commission voted 3-1 June 12 to move forward with a petition to list the Crotch, Franklin’s, Western, and Suckley cuckoo bumblebees as endangered. The move triggers a year-long review.

If listed under the California Endangered Species Act, the bees would be the first pollinators and insects added. Pesticide restrictions, grazing rules, and other habitat protections could then be ordered.

But the courts will likely get involved.

“There’s real potential for litigation on this issue whichever way we go,” Fish and Game Commission President Eric Sklar said.

Debate on Definitions

Definitions will matter.

Insects aren’t specifically cited as eligible for listing—but supporters of the permit said they fall under the definition of fish, which includes invertebrates. They say bees don’t have backbones and are therefore eligible.

“We believe California Endangered Species Act was enacted to protect all of the state’s species, including insects,” Defenders of Wildlife California Program Director Kim Delfino said.

Delfino said the state law includes invertebrates in the fish definition and cited a letter of agreement from a Stanford Law School clinic. The rules “don’t qualify it as to if they are aquatic invertebrates or invertebrates,” Delfino said.

Opponents say the definitions aren’t as broad and point to a 1998 opinion from the state Attorney General’s office saying protections “apply to birds, mammals, fish, amphibians, reptiles, and plants.”

‘No Stretch of the Imagination’

“What’s being represented today is a bumblebee is a fish,” said Paul Weiland, an attorney who is chair of Nossaman LLP’s Environment and Land Use Practice Group.

Weiland, who is based in Irvine, said he represents agriculture interests. “By no stretch of the imagination can anyone think the legislature was thinking about anything other than aquatic [invertebrates],” he said.

The vote to proceed was on if the petition included adequate evidence that a listing was necessary.

While the bees are “candidates” for listing, they have the protections of the law, which means prohibitions on harming, interfering with, or killing them.

That could lead to uncertainty if bumble bees are present on fields or in other places where work is happening. “Obviously, people would rather be in a situation where there wasn’t that ambiguity,” Weiland said in a phone interview.

Lost Habitat

The four species have lost habitat and have low population numbers that can lead to inbreeding, said David Wright, a California Department of Fish and Wildlife senior environmental scientist. They are also susceptible to disease and pesticides.

More than 80% of plants require some sort of pollination.

Bumblebees can fly in colder temperatures and in low light situations. They can pollinate tomatoes, peppers, wildflowers and other crops, sometimes supplementing need, according to the Xerces Society for Invertebrate Conservation, which is based in Portland, Ore., and which filed the petition.

“Bumblebees provide insurance when honeybees or others are in short supply,” said Sarina Jepsen, Xerces’ endangered species program director.

In the 1980s the commission voted to list two butterfly species under the fish definition but the state Office of Administrative Law would not approve the designation, saying insects were not protected.

“Since then I’m not aware of anyone ever even attempting to list an insect species,” Weiland said.

Insects are protected under the federal Endangered Species Act.

California Department of Fish and Wildlife Director Chuck Bonham said pollinators were a top priority and the state’s work would continue despite what happens.

“In my experience, sometimes the courts are the place where important issues get resolved,” he said.

To contact the reporter on this story: Emily C. Dooley at edooley@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com