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`Filed 5/31/22
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`
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`CERTIFIED FOR PUBLICATION
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`
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`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
`
`THIRD APPELLATE DISTRICT
`
`(Sacramento)
`
`----
`
`C093542
`
`(Super. Ct. No.
`34201980003216CUWMGDS)
`
`
`
`ALMOND ALLIANCE OF CALIFORNIA et al.,
`
`
`
`
`
`FISH AND GAME COMMISSION et al.,
`
`
`
`XERCES SOCIETY FOR INVERTEBRATE
`CONSERVATION et al.,
`
`
`
`
`
`
`v.
`
`
`
`
`
`Plaintiffs and Respondents,
`
`Defendants and Appellants;
`
`Interveners and Appellants.
`
`
`APPEAL from a judgment of the Superior Court of Sacramento County, James P.
`
`Arguelles, Judge. Reversed.
`
`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, 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, for Plaintiffs and Respondents Almond Alliance of California et al.
`
`1
`
`
`
`
`
`
`
`The California Endangered Species Act (Act) (Fish & G. Code,1 § 2050 et seq.)
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`directs the Fish and Game Commission (Commission) to “establish a list of endangered
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`species and a list of threatened species.” (§ 2070.) The issue presented here is whether
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`the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is
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`used in the definitions of endangered species in section 2062, threatened species in
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`section 2067, and candidate species (i.e., species being considered for listing as
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`endangered or threatened species) in section 2068 of the Act. More specifically, we must
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`determine whether the Commission exceeded its statutorily delegated authority when it
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`designated four bumble bee species as candidate species under consideration for listing as
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`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
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`2068 of the Act, by application of section 2. (California Forestry Assn. v. California
`
`Fish & Game Commission (2007) 156 Cal.App.4th 1535, 1552 (California Forestry
`
`Assn.).) That means the Commission has the authority to list an invertebrate as an
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`endangered or threatened species. We next consider whether the Commission’s authority
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`is limited to listing only aquatic invertebrates. We conclude the answer is, “no.”
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`Although the term fish is colloquially and commonly understood to refer to aquatic
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`species, the term of art employed by the Legislature in the definition of fish in section 45
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`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
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`liberal interpretation of the Act (the lens through which we are required to construe the
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`Act) that the Commission may list any invertebrate as an endangered or threatened
`
`
`
`1
`Undesignated section references are to the Fish and Game Code. References to
`the code are to the Fish and Game Code.
`
`2
`
`
`
`
`
`species. We thus agree with the Commission, the California Department of Fish and
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`Wildlife (Department), and intervenors Xerces Society for Invertebrate Conservation,
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`Defenders of Wildlife, and Center for Food Safety (collectively public interest groups)
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`that the trial court erred when it reached a contrary conclusion.2 We accordingly reverse
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`the judgment.
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`FACTUAL AND PROCEDURAL BACKGROUND3
`
`I
`
`The Definition Of Fish In Section 45
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`Section 45 is located in chapter 1, “general definitions” (bolding and capitalization
`
`omitted), of division 0.5, “general provisions and definitions” (bolding and capitalization
`
`
`
`2
`Petitioners Almond Alliance of California, California Association of Pest Control
`Advisers, California Citrus Mutual, California Cotton Ginners and Growers Association,
`California Farm Bureau Federation, Western Agricultural Processors Association,
`Western Growers Association, and The Wonderful Company LLC (collectively
`petitioners) named both the Commission and the Department as respondents in their writ
`petition. Petitioners, however, sought relief against only the Commission and later
`stipulated the Department be designated a real party in interest.
`
`3
`The parties filed several requests for judicial notice. We granted one such request,
`filed by the public interest groups, in an October 2021 order. We deferred ruling on three
`additional requests, filed by petitioners, the public interest groups, and the Commission
`and Department, respectively. We now grant those requests because they contain
`relevant statutory law (Evid. Code, § 451, subd. (a)), regulations or legislative enactments
`(id., § 452, subd. (b)), official acts of legislative and executive departments, including
`administrative agencies, of the United States and California (id., § 452, subd. (c); Post v.
`Prati (1979) 90 Cal.App.3d 626, 634 [legislative history falls within § 452, subd. (c)]),
`and documents not reasonably subject to dispute and capable of immediate and accurate
`determination by resort to sources of reasonably indisputable accuracy (Evid. Code,
`§ 452, subd. (h)). On the eve of oral argument, petitioners further requested we take
`judicial notice of Assembly Bill No. 559 (2015-2016 Reg. Sess.) (Assembly Bill 559) and
`various legislative history documents analyzing the bill. We granted the request but
`admonish petitioners’ counsel for not presenting the documents to the trial court in the
`first instance and waiting until the eve of oral argument to present the documents to this
`
`3
`
`
`
`
`
`omitted) of the code. Prior to 1969, section 45 defined fish as “wild fish, mollusks, or
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`crustaceans, including any part, spawn or ova thereof.” In 1969, the Legislature amended
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`section 45 via Senate Bill No. 858 (1969 Reg. Sess.) (Senate Bill 858) to add
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`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,
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`2016), when the Legislature made nonsubstantive stylistic changes, modifying the
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`definition to read “ ‘[f]ish’ means a wild fish, mollusk, crustacean, invertebrate,
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`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
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`Natural Resources Agency submitted an enrolled bill report in support of the bill, stating
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`“[t]he expanded definition of fish will permit closer control and monitoring of the harvest
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`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
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`management of these species.” (Dept. Fish & Game and Natural Resources Agency,
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`Enrolled Bill Rep. on Senate Bill 858, July 24, 1969.) The Department of Finance also
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`submitted an enrolled bill report regarding Senate Bill 858. The Department of Finance
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`therein stated: “By expanding the definition of fish as proposed in this bill, it will be
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`possible for the . . . Commission to regulate the taking of amphibians (frogs) and
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`invertebrates, such as starfish, sea urchins, anemones, jellyfish and sponges.” (Dept.
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`Finance, Enrolled Bill Rep. on Senate Bill 858, Aug. 1, 1969.)
`
`
`court and thereby eliminating any opportunity for the other parties to provide a written
`analysis regarding the documents’ applicability to the issue presented.
`
`4
`
`
`
`
`
`Section 2 in the same chapter as section 45 provides the definition of fish governs
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`the code and regulations adopted under the code, “[u]nless the provisions or the context
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`otherwise requires.”4
`
`II
`
`The 1970 Endangered And Rare Animals Legislation
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`“California has been at the forefront of enacting legislation to protect endangered
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`and rare animals -- first doing so in 1970.” (California Forestry Assn., supra, 156
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`Cal.App.4th at p. 1540.) The 1970 endangered and rare animals legislation (1970
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`Legislation) provided “[n]o person shall import into this state, or take, possess, or sell
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`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,
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`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
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`reproduction of which are in immediate jeopardy from one or more causes, including loss
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`of habitat, change in habitat, overexploitation, predation, competition, or disease”; and
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`“ ‘[r]are animal’ ” as “an animal of a species or subspecies of birds, mammals, fish,
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`amphibia or reptiles that, although not presently threatened with extinction, is in such
`
`
`
`4
`When the Act was enacted in 1984, former section 2 provided: “Unless the
`provisions or the context otherwise requires, these definitions, rules of construction, and
`general provisions shall govern the construction of this code and all regulations made or
`adopted under this code.” (Stats. 1959, ch. 994, § 1.) Section 2 was amended in 1998
`and now provides: “Unless the provisions or the context otherwise requires, the
`definitions in this chapter govern the construction of this code and all regulations adopted
`under this code.” (Stats. 1998, ch. 1052, § 3.) The statute thus has not materially
`changed for purposes of determining whether section 45 applies to define fish, as the
`term is used in sections 2062, 2067, and 2068 of the Act.
`
`5
`
`
`
`
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`small numbers throughout its range that it may be endangered if its environment
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`worsens.” (Former § 2051; see Stats. 1970, ch. 1510, § 3.)
`
`III
`
`Pertinent Listing History Under The 1970 Legislation
`
`On June 27, 1980, the Commission unanimously passed an amendment to
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`California Code of Regulations, title 14, section 670.5 to include as endangered animals
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`the Lange’s metalmark butterfly and the El Segundo blue butterfly, and as rare animals
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`the Smith’s blue butterfly and the Trinity bristle snail. The Trinity bristle snail is a
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`terrestrial gastropod that is both a mollusk and an invertebrate.
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`The minutes from the meeting state the Commission’s executive secretary reported
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`the Commission had received a letter from Deputy Attorney General Denis Smaage,
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`“which justified the Commission’s authority to classify insects as rare or endangered,”
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`and reaffirmed the Commission had the authority to designate invertebrates as rare and
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`endangered animals.
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`The Commission submitted the June 1980 adopted California Code of
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`Regulations, title 14, section 670.5 amendment to the Office of Administrative Law for
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`approval and publication.5 The Office of Administrative Law disapproved the request on
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`the ground the 1970 Legislation could not “be construed to include insects within the
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`definition of ‘birds, mammals, fish, amphibia, or reptiles.’ ” The Commission asked for
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`reconsideration, to which the Office of Administrative Law responded the Commission’s
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`remedy was to appeal the decision to the Governor, but the time to do so had lapsed.
`
`
`
`5
`The Office of Administrative Law decides whether to approve or disapprove
`certain regulations submitted to it by other administrative agencies after making
`determinations of, among other things, the submitting agency’s authority in taking the
`action and the action’s consistency with the law. (Gov. Code, §§ 11349.1, subd. (a),
`11349.3, subd. (a).)
`
`6
`
`
`
`
`
`At a meeting on August 1, 1980, the Commission considered whether to refile the
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`rejected amendment “re: list of rare and endangered species of birds, mammals, fishes,
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`insects, crustaceans, reptiles and mollusks.” (Capitalization omitted.) The meeting
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`minutes note the Commission’s executive secretary “stated that the Commission had
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`received a letter from Gene Livingston, Director of the Office of Administrative Law,
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`which took exception to the Deputy Attorney General’s opinion regarding the definition
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`of insects as fish was in error. Mr. Livingston contended that insects are not fish and that
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`the Commission lacked authority to list insects as endangered or rare species.” The
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`Commission’s executive secretary requested authorization “to refile the order with the
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`insects deleted from the list, and to then respond to concerns of Mr. Livingston with
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`regard to the listing [of] insects.” The Commission unanimously approved the executive
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`secretary’s request.
`
`On September 6, 1980, the Trinity bristle snail was added to California Code of
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`Regulations, title 14, section 670.5 as a rare animal. It was listed as a mollusk, which
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`falls only within the definition of fish in section 45 as a species then protected under the
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`1970 Legislation. In other words, it did not otherwise qualify as a bird, mammal,
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`amphibian, or reptile in former section 2051. (See Stats. 1970, ch. 1510, § 3.)
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`By 1984, the Commission had listed 65 endangered and rare animals under the
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`1970 Legislation. The Trinity bristle snail was one of the listed rare animals. The list
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`also included two crustaceans -- the California freshwater shrimp as an endangered
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`animal and the Shasta crayfish as a rare animal.
`
`IV
`
`The Act’s Legislative History
`
`
`
`In 1984, the 1970 Legislation was repealed and replaced with the Act. (California
`
`Forestry Assn., supra, 156 Cal.App.4th at p. 1540.) In contrast to the 1970 Legislation’s
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`“[e]ndangered animal” and “[r]are animal” terminology, the Act defined and applied to
`
`7
`
`
`
`
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`“[e]ndangered species” and “[t]hreatened species.” (Stats. 1984, ch. 1162, § 6;
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`Stats. 1984, ch. 1240, § 2.)
`
`As originally introduced, Assembly Bill No. 3309 (1983-1984 Reg. Sess.)
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`(Assembly Bill 3309) would have amended (rather than repealed) the 1970 Legislation,
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`and both the endangered species and threatened species definitions would have expressly
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`included invertebrates as species and subspecies subject to protection, in addition to
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`birds, mammals, fishes, amphibians, and reptiles. (Assembly Bill 3309, as introduced
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`Feb. 16, 1984.) Shortly thereafter, the bill was amended to repeal the 1970 Legislation
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`and replace it with the Act, but the proposed inclusion of invertebrate within the
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`endangered and threatened species definitions remained unchanged. (Assem. Amend. to
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`Assembly Bill 3309, Apr. 23, 1984.) The Assembly also added plants to the definition of
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`threatened and endangered species. (Ibid.)
`
`Assembly Bill 3309 was amended twice in the Senate in June 1984. The first
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`amendment is immaterial to this appeal; invertebrates were still expressly included within
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`the definitions of endangered or threatened species. (Assem. Amend. to Assembly Bill
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`3309, June 11, 1984.) Addressing this version of the bill, the Department and the Natural
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`Resources Agency, on June 26, 1984, submitted a bill analysis in support of the bill,
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`stating: “[Assembly Bill] 3309 . . . would change the designation categories of
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`‘endangered’ and ‘rare’ to ‘endangered’ and ‘threatened,’ and would extend the
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`provisions of the Act to plants. Also, by adding the term ‘invertebrates’ to the definitions
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`of endangered and threatened species, this bill would reaffirm the Commission’s
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`authority to include invertebrates among the groups of animals that may be designated as
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`endangered or threatened.” (Dept. Fish & Game and Natural Resources Agency,
`
`Analysis of Assembly Bill 3309, June 26, 1984.) They further explained, “[s]ince 1970,
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`the . . . Commission ha[d] declared 65 species of mammals, birds, reptiles, amphibians,
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`fishes, and invertebrates to be endangered or rare.” (Ibid.)
`
`8
`
`
`
`
`
`As to their position regarding invertebrates, the Department and the Natural
`
`Resources Agency continued: “The [1970 Legislation] defined species as birds,
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`mammals, fishes, reptiles, and amphibians. Although, technically, these terms name only
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`vertebrate classes of animals, it was the Department’s understanding of legislative intent
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`that the [1970 Legislation] was to extend to invertebrates as well. It was not believed
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`necessary to include the term invertebrate in the original legislation because ‘fish’ is
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`defined in the Fish and Game Code to include ‘invertebrates’ (Section 45, General
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`Provisions and Definitions). This was supported by the fact that the Department has had
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`a long history of regulation and management of numerous classes of invertebrates. In
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`fact, three species of invertebrates are currently designated as endangered or rare by the
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`. . . Commission. [¶] Specifying invertebrates in the definitions of endangered and
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`threatened species, as proposed by [Assembly Bill] 3309, would serve to remove any
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`doubts as to the Commission’s authority to designate insects as endangered or threatened,
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`a doubt raised by the Office of Administrative Law in 1981 when it challenged the
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`Commission’s designation of four species of butterflies as endangered. Although the
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`Attorney General affirmed the Commission’s authority, the designation was not pursued
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`because the period for appeal had expired.”6 (Dept. Fish & Game and Natural Resources
`
`Agency, Analysis of Assembly Bill 3309, June 26, 1984.) The Department and the
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`Natural Resources Agency stated their view that “[i]nclusion of the term invertebrates in
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`the definitions of endangered and threatened species would help eliminate confusion on
`
`the part of [the Office of Administrative Law] over the Commission’s authority under the
`
`
`
`6
`It appears the Department and Natural Resources Agency meant to refer to the
`Office of Administrative Law’s 1980 decision. We are unaware of any other decision by
`the Office of Administrative Law in 1981 regarding the Commission’s decision to list
`species of butterflies as endangered or rare animals under the 1970 Legislation.
`
`9
`
`
`
`
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`Act, but does not add any new authority to that which the [Attorney General] indicates
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`already exists.” (Ibid.)
`
`
`
`On June 25, 1984, the day before the Department and the Natural Resources
`
`Agency submitted the foregoing bill analysis, Assembly Bill 3309 was amended to
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`remove invertebrate from the proposed definitions of endangered and threatened species.
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`(Sen. Amend. to Assembly Bill 3309, June 25, 1984.) That amendment also added to the
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`definitions of endangered and threatened species that any species determined to be
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`endangered or rare animals by the Commission under the 1970 Legislation on or before
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`January 1, 1985, would be endangered or threatened species under the Act. (Ibid.) The
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`bill was further amended to add the following as section 3: “The department shall
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`participate fully and actively in the review of invertebrate [sic] native to this state for
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`listing as endangered or threatened species by the United States Department of the
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`Interior, Fish and Wildlife Service pursuant to the federal Endangered Species Act (16
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`U.S.C. Sec. 1531 et seq.). [¶] The department shall report to the Legislature on or before
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`May 15, 1985, its recommendations relating to the necessity and feasibility of including
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`invertebrates in the California Endangered Species Act.” (Sen. Amend. to Assembly Bill
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`3309, June 25, 1984, italics omitted.)
`
`Addressing the June 25, 1984, version of the bill, the Senate Committee on
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`Natural Resources wrote “[s]ixty-five species of animals (excluding invertebrates) have
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`been designated as endangered or rare by the . . . . Commission.” (Sen. Com. on Natural
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`Resources, Analysis of Assembly Bill 3309, as amended June 25, 1984.)7 The committee
`
`explained Assembly Bill 3309 would incorporate “[s]everal concepts from federal law . .
`
`
`
`7
`We note the Senate Committee on Natural Resources’ analysis states it was
`analyzing Assembly Bill 3309 as “amended in the Senate June 26, 1984.” (Sen. Com. on
`Natural Resources, Analysis of Assembly Bill 3309, as amended June 25, 1984.) The
`correct amendment date was June 25, 1984, as no amendment was made to the bill on
`June 26, 1984.
`
`10
`
`
`
`
`
`. into state law.” (Sen. Com. on Natural Resources, Analysis of Assembly Bill 3309, as
`
`amended June 25, 1984.) It qualified, however: “Unlike federal law, the bill would
`
`exclude all invertebrates from eligibility for listing as threatened or endangered species.
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`Federal law permits the listing of any invertebrate except any insect that poses an
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`‘overwhelming or overriding risk to man’. The Department would, however, be required
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`to participate in the consideration of the listing of threatened or endangered invertebrates
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`native to California by the U.S. Fish and Wildlife Service. Additionally, the Department
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`would be required to report by May 15, 1985, on the necessity and feasibility of including
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`invertebrates in [the Act].” (Ibid.)
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`The Senate again amended the bill twice in August 1984. On August 6, 1984, the
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`Senate, in pertinent part, removed the requirement that the Department participate in the
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`review of California native invertebrates for listing under the federal Endangered Species
`
`Act. (Sen. Amend. to Assembly Bill 3309, Aug. 6, 1984.) On August 22, 1984, the
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`Senate, in pertinent part, further struck the requirement that the Department “report to the
`
`Legislature on or before May 15, 1985, its recommendations relating to the necessity and
`
`feasibility of including invertebrates in [the Act].” (Sen. Amend. to Assembly Bill 3309,
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`Aug. 22, 1984.)
`
`The Assembly Office of Research prepared a report in advance of the Assembly
`
`considering whether to concur in the Senate’s amendments to Assembly Bill 3309.
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`(Assem. Office of Research Rep. on Assembly Bill 3309, Aug. 29, 1984.) In discussing
`
`the bill as passed in the Assembly on June 13, 1984, the Assembly Office of Research
`
`made no mention of invertebrates. It instead stated the bill, as passed in the Assembly,
`
`repealed the provisions of the 1970 Legislation and “[d]efined ‘threatened species’ and
`
`‘endangered species,’ including plants.” (Assem. Office of Research Rep. on Assembly
`
`Bill 3309.) In discussing the Senate’s amendments, the Assembly Office of Research
`
`again did not mention invertebrates. (Ibid.) It explained the Senate amended the bill to
`
`11
`
`
`
`
`
`provide that any species listed by the Commission as an endangered or rare animal prior
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`to January 1, 1985, would be endangered and threatened species under the Act. (Ibid.)
`
`
`
`In September 1984, the Department and the Natural Resources Agency submitted
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`an enrolled bill report on Assembly Bill 3309. (Dept. Fish & Game and Natural
`
`Resources Agency, Enrolled Bill Report on Assembly Bill 3309, Sept. 12, 1984.) They
`
`explained the “bill was last analyzed following amendments in the Assembly on June 11”
`
`and, “[s]ince that time, several substantive and minor changes ha[d] occurred.” (Ibid.)
`
`The Department and the Natural Resources Agency considered the deletion of
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`invertebrate from the definitions of endangered and threatened species to be a minor
`
`change, albeit one that “merits discussion,” explaining: “It was thought that adding this
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`term to the definitions would clarify the Commission’s authority to include invertebrates
`
`among the animals that it listed as endangered and threatened, but after further
`
`consideration, the Department has concluded that sufficient authority currently exists and
`
`that adding the term invertebrates in the legislation would only serve to confuse the
`
`matter. For example, to have included the term would have required that, for
`
`consistency, all other references in the Fish and Game Code to the various groups of
`
`animals be amended to add the term invertebrates, as necessary.” (Ibid.) As background,
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`the Department and the Natural Resources Agency noted: “Since 1970, the . . .
`
`Commission has declared 65 species of mammals, birds, reptiles, amphibians, fishes, and
`
`invertebrates to be endangered or rare.” (Ibid.)
`
`V
`
`The Act Generally
`
`“In [the Act], the Legislature found and declared that certain species of fish,
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`wildlife and plants have been rendered extinct as a consequence of man’s activities; that
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`other species of fish, wildlife and plants are in danger of or threatened with extinction
`
`because their habitats are threatened with destruction, adverse modification or severe
`
`curtailment, or because of overexploitation, disease, predation, or other factors; and that
`
`12
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`
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`
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`these species are of ecological, educational, historical, recreational, esthetic, economic,
`
`and scientific value to the people of California, and the conservation, protection and
`
`enhancement of them and their habitat is of statewide concern. (§ 2051.)” (Natural
`
`Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104, 1111.)
`
`The Legislature further found and declared in the Act “the policy of the state to conserve,
`
`protect, restore, and enhance any endangered species or any threatened species and its
`
`habitat.” (§ 2052.)
`
`It is the Commission’s duty to “establish a list of endangered species and a list of
`
`threatened species,” and to “add or remove species from either list if it finds, upon the
`
`receipt of sufficient scientific information . . . that the action is warranted.” (§ 2070.)
`
`The Act identifies the species subject to protection as “native species or subspecies of a
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`bird, mammal, fish, amphibian, reptile, or plant.” (§§ 2062, 2067 & 2068.)8 “Under [the
`
`Act], ‘a native species or subspecies’ qualifies as ‘endangered’ if it ‘is in serious danger
`
`of becoming extinct throughout all, or a significant portion, of its range due to one or
`
`more causes, including loss of habitat, change in habitat, overexploitation, predation,
`
`competition, or disease.’ (§ 2062.)” (Central Coast Forest Assn. v. Fish & Game Com.
`
`(2017) 2 Cal.5th 594, 598 (Central Coast Forest Assn. I).) When it enacted the Act, the
`
`Legislature further declared, “[a]ny species determined by the [C]ommission as
`
`‘endangered’ on or before January 1, 1985, is an ‘endangered species.’ ” (§ 2062.)
`
`“A ‘native species or subspecies’ qualifies as ‘threatened’ if it is ‘not presently
`
`threatened with extinction,’ but ‘is likely to become an endangered species in the
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`foreseeable future in the absence of . . . special protection and management efforts.’
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`(§ 2067.)” (Central Coast Forest Assn. I, supra, 2 Cal.5th at p. 598.) When it enacted
`
`the Act, the Legislature also declared, “[a]ny animal determined by the [C]ommission as
`
`
`
`8
`These three statutes (§§ 2062, 2067 & 2068) have not been amended since being
`enacted in 1984.
`
`13
`
`
`
`
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`‘rare’ on or before January 1, 1985, is a ‘threatened species.’ ” (§ 2067.) The
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`Commission’s list of endangered and threatened species appears in section 670.5, title 14
`
`of the California Code of Regulations. (Central Coast Forest Assn. I, at p. 598.)
`
`“Any ‘interested person may petition the [C]ommission to add a species to, or to
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`remove a species from’ these lists. (§ 2071.) A multi-step process exists for processing
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`these petitions. First, the Department . . . , upon a referral from the Commission
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`(§ 2073), ‘evaluate[s] the petition on its face and in relation to other relevant information
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`the [D]epartment possesses or receives,’ and prepares a ‘written evaluation report’ that
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`includes a recommendation as to whether the Commission should ‘reject[]’ the petition or
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`‘accept[] and consider[]’ it, depending on whether ‘there is sufficient information to
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`indicate that the petitioned action may be warranted.’ (§ 2073.5, subd. (a), italics added.)
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`During this evaluation, any ‘person may submit information to the [D]epartment relating
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`to the petitioned species.’ (§ 2073.4, subd. (a).) Second, the Commission, after
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`‘consider[ing] the petition, the [D]epartment’s written report, [and] written comments
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`received,’ determines whether the petition ‘provides sufficient information to indicate
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`that the petitioned action may be warranted.’ (§ 2074.2, subd. (e)(2), italics added;
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`see id., subd. (e)(1).) Upon finding that the petition does not provide such information,
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`the Commission rejects it. (§ 2074.2, subd. (e)(1).) Upon finding that the petition does
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`provide such information, the Commission ‘accept[s]’ it ‘for consideration.’ (§ 2074.2,
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`subd. (e)(2).) Third, as to an accepted petition, the Department then conducts a more
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`comprehensive ‘review of the status of the [petitioned] species’ and produces a written
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`report, ‘based upon the best scientific information available to the [D]epartment, which
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`indicates whether the petitioned action is warranted.’ (§ 2074.6, italics added.) Finally,
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`after receiving the Department’s report, the Commission determines whether the
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`petitioned action ‘is warranted’ or ‘is not warranted.’ (§ 2075.5, subd. (e).)” (Central
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`Coast Forest Assn. I, supra, 2 Cal.5th at p. 598.)
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`14
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`
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`The Act defines “ ‘[c]andidate species’ ” as “a native species or subspecies of a
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`bird, mammal, fish, amphibian, reptile, or plant that the [C]ommission has formally
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`noticed as being under review by the [D]epartment for addition to either the list of
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`endangered species or the list of threatened species, or a species for which the
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`[C]ommission has published a notice of proposed regulation to add the species to either
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`list.” (§ 2068.) Like the 1970 Legislation, the Act does not contain a definition of fish.
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`(See §§ 2060-2089.25.)
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`VI
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`1998 Published Attorney General Opinion
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`
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`In 1998, the Attorney General published an opinion in response to a request from
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`an assemblymember, in pertinent part, addressing “whether insects are eligible for listing
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`as a threatened or endangered species under [the Act].” (81 Ops.Cal.Atty.Gen. 222, 224
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`(1998).) The Attorney General quoted the definitions of endangered species in
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`section 2062, threatened species in section 2067, and candidate species in section 2068,
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`and then stated: “These definitions limit the application of [the Act] to birds, mammals,
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`fish, amphibians, reptiles, and plants. Insects do not fall within any of these categories.
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`In zoological terms, insects comprise the Insecta class of the phylum Arthropoda.
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`(Webster’s Third New Internat. Dict. (1971) p. 1168.) Since they are not within the
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`governing definitions contained in [the Act], insects are not eligible for listing as
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`threatened or endangered species thereunder. While the last sentence of section 2062 and
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`of section 2067 ‘grandfather’ certain designations made prior to 1985, no insects were so
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`designated. Therefore, we need not inquire whether insects were eligible for listing prior
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`to 1985.”9 (81 Ops.Cal.Atty.Gen. at pp. 224, 225, fn. omitted.) In footnote 5, the
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`
`
`9
`As explained post, the Attorney General, however, did not consider that the
`Commission had listed at least one invertebrate under the Act and insects are
`invertebrates.
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`15
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`
`
`
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`Attorney General noted: “By comparison, the Federal Endangered Species Act explicitly
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`includes ‘any member of the animal kingdom, including, without limitation any . . .
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`arthropod or other invertebrate . . . .’ ” (Id. at p. 225, fn. 5.) The Attorney General
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`concluded “that insects are ineligible for listing as a threatened or endangered species
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`under [the Act].” (Id. at p. 225.)
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`VII
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`The Current Dispute
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`In October 2018, the public interest groups petitioned the Commission to list four
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`species of bumble bee as endangered species: the Crotch bumble bee, the Franklin
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`bumble bee, the Suckley cuckoo bumble bee, and the Western bumble bee (collectively
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`the four bumble bee species).
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`
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`In April 2019, the Department issued a report, in which it recommended “the
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`Commission accept the Petition for further consideration under [the Act]” because “the
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`Petition provide[d] sufficient scientific information to indicate [listing the four bumble
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`bee species] may be warranted.” On June 12, 2019, the Commission “accepted for
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`consideration the petition submitted to list [the four bumbl