Almond Alliance of Cal. v. Fish and Game Com.

Filed 5/31/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
ALMOND ALLIANCE OF CALIFORNIA et al., C093542
Plaintiffs and Respondents, (Super. Ct. No.
34201980003216CUWMGDS)
v.
FISH AND GAME COMMISSION et al.,
Defendants and Appellants;
XERCES SOCIETY FOR INVERTEBRATE
CONSERVATION et al.,
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.)
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 (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
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
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
I
The 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
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
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.)
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
the code and regulations adopted under the code, “[u]nless the provisions or the context
otherwise requires.”4
II
The 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.) 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
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
small numbers throughout its range that it may be endangered if its environment
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
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.
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
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.
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
“[e]ndangered animal” and “[r]are animal” terminology, the Act defined and applied to
7
“[e]ndangered species” and “[t]hreatened species.” (Stats. 1984, ch. 1162, § 6;
Stats. 1984, ch. 1240, § 2.)
As originally introduced, Assembly Bill No. 3309 (1983-1984 Reg. Sess.)
(Assembly Bill 3309) would have amended (rather than repealed) the 1970 Legislation,
and both the endangered species and threatened species definitions would have expressly
included invertebrates as species and subspecies subject to protection, in addition to
birds, mammals, fishes, amphibians, and reptiles. (Assembly Bill 3309, as introduced
Feb. 16, 1984.) Shortly thereafter, the bill was amended to repeal the 1970 Legislation
and replace it with the Act, but the proposed inclusion of invertebrate within the
endangered and threatened species definitions remained unchanged. (Assem. Amend. to
Assembly Bill 3309, Apr. 23, 1984.) The Assembly also added plants to the definition of
threatened and endangered species. (Ibid.)
Assembly Bill 3309 was amended twice in the Senate in June 1984. The first
amendment is immaterial to this appeal; invertebrates were still expressly included within
the definitions of endangered or threatened species. (Assem. Amend. to Assembly Bill
3309, June 11, 1984.) Addressing this version of the bill, the Department and the Natural
Resources Agency, on June 26, 1984, submitted a bill analysis in support of the bill,
stating: “[Assembly Bill] 3309 . . . would change the designation categories of
‘endangered’ and ‘rare’ to ‘endangered’ and ‘threatened,’ and would extend the
provisions of the Act to plants. Also, by adding the term ‘invertebrates’ to the definitions
of endangered and threatened species, this bill would reaffirm the Commission’s
authority to include invertebrates among the groups of animals that may be designated as
endangered or threatened.” (Dept. Fish & Game and Natural Resources Agency,
Analysis of Assembly Bill 3309, June 26, 1984.) They further explained, “[s]ince 1970,
the . . . Commission ha[d] declared 65 species of mammals, birds, reptiles, amphibians,
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,
mammals, fishes, reptiles, and amphibians. Although, technically, these terms name only
vertebrate classes of animals, it was the Department’s understanding of legislative intent
that the [1970 Legislation] was to extend to invertebrates as well. It was not believed
necessary to include the term invertebrate in the original legislation because ‘fish’ is
defined in the Fish and Game Code to include ‘invertebrates’ (Section 45, General
Provisions and Definitions). This was supported by the fact that the Department has had
a long history of regulation and management of numerous classes of invertebrates. In
fact, three species of invertebrates are currently designated as endangered or rare by the
. . . Commission. [¶] Specifying invertebrates in the definitions of endangered and
threatened species, as proposed by [Assembly Bill] 3309, would serve to remove any
doubts as to the Commission’s authority to designate insects as endangered or threatened,
a doubt raised by the Office of Administrative Law in 1981 when it challenged the
Commission’s designation of four species of butterflies as endangered. Although the
Attorney General affirmed the Commission’s authority, the designation was not pursued
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
Natural Resources Agency stated their view that “[i]nclusion of the term invertebrates in
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
Act, but does not add any new authority to that which the [Attorney General] indicates
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
remove invertebrate from the proposed definitions of endangered and threatened species.
(Sen. Amend. to Assembly Bill 3309, June 25, 1984.) That amendment also added to the
definitions of endangered and threatened species that any species determined to be
endangered or rare animals by the Commission under the 1970 Legislation on or before
January 1, 1985, would be endangered or threatened species under the Act. (Ibid.) The
bill was further amended to add the following as section 3: “The department shall
participate fully and actively in the review of invertebrate [sic] native to this state for
listing as endangered or threatened species by the United States Department of the
Interior, Fish and Wildlife Service pursuant to the federal Endangered Species Act (16
U.S.C. Sec. 1531 et seq.). [¶] The department shall report to the Legislature on or before
May 15, 1985, its recommendations relating to the necessity and feasibility of including
invertebrates in the California Endangered Species Act.” (Sen. Amend. to Assembly Bill
3309, June 25, 1984, italics omitted.)
Addressing the June 25, 1984, version of the bill, the Senate Committee on
Natural Resources wrote “[s]ixty-five species of animals (excluding invertebrates) have
been designated as endangered or rare by the . . . . Commission.” (Sen. Com. on Natural
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.
Federal law permits the listing of any invertebrate except any insect that poses an
‘overwhelming or overriding risk to man’. The Department would, however, be required
to participate in the consideration of the listing of threatened or endangered invertebrates
native to California by the U.S. Fish and Wildlife Service. Additionally, the Department
would be required to report by May 15, 1985, on the necessity and feasibility of including
invertebrates in [the Act].” (Ibid.)
The Senate again amended the bill twice in August 1984. On August 6, 1984, the
Senate, in pertinent part, removed the requirement that the Department participate in the
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
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,
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.
(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
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
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
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
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,
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,
wildlife and plants have been rendered extinct as a consequence of man’s activities; that
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
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
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
foreseeable future in the absence of . . . special protection and management efforts.’
(§ 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
‘rare’ on or before January 1, 1985, is a ‘threatened species.’ ” (§ 2067.) The
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
remove a species from’ these lists. (§ 2071.) A multi-step process exists for processing
these petitions. First, the Department . . . , upon a referral from the Commission
(§ 2073), ‘evaluate[s] the petition on its face and in relation to other relevant information
the [D]epartment possesses or receives,’ and prepares a ‘written evaluation report’ that
includes a recommendation as to whether the Commission should ‘reject[]’ the petition or
‘accept[] and consider[]’ it, depending on whether ‘there is sufficient information to
indicate that the petitioned action may be warranted.’ (§ 2073.5, subd. (a), italics added.)
During this evaluation, any ‘person may submit information to the [D]epartment relating
to the petitioned species.’ (§ 2073.4, subd. (a).) Second, the Commission, after
‘consider[ing] the petition, the [D]epartment’s written report, [and] written comments
received,’ determines whether the petition ‘provides sufficient information to indicate
that the petitioned action may be warranted.’ (§ 2074.2, subd. (e)(2), italics added;
see id., subd. (e)(1).) Upon finding that the petition does not provide such information,
the Commission rejects it. (§ 2074.2, subd. (e)(1).) Upon finding that the petition does
provide such information, the Commission ‘accept[s]’ it ‘for consideration.’ (§ 2074.2,
subd. (e)(2).) Third, as to an accepted petition, the Department then conducts a more
comprehensive ‘review of the status of the [petitioned] species’ and produces a written
report, ‘based upon the best scientific information available to the [D]epartment, which
indicates whether the petitioned action is warranted.’ (§ 2074.6, italics added.) Finally,
after receiving the Department’s report, the Commission determines whether the
petitioned action ‘is warranted’ or ‘is not warranted.’ (§ 2075.5, subd. (e).)” (Central
Coast Forest Assn. I, supra, 2 Cal.5th at p. 598.)
14
The Act defines “ ‘[c]andidate species’ ” as “a native species or subspecies of a
bird, mammal, fish, amphibian, reptile, or plant that the [C]ommission has formally
noticed as being under review by the [D]epartment for addition to either the list of
endangered species or the list of threatened species, or a species for which the
[C]ommission has published a notice of proposed regulation to add the species to either
list.” (§ 2068.) Like the 1970 Legislation, the Act does not contain a definition of fish.
(See §§ 2060-2089.25.)
VI
1998 Published Attorney General Opinion
In 1998, the Attorney General published an opinion in response to a request from
an assemblymember, in pertinent part, addressing “whether insects are eligible for listing
as a threatened or endangered species under [the Act].” (81 Ops.Cal.Atty.Gen. 222, 224
(1998).) The Attorney General quoted the definitions of endangered species in
section 2062, threatened species in section 2067, and candidate species in section 2068,
and then stated: “These definitions limit the application of [the Act] to birds, mammals,
fish, amphibians, reptiles, and plants. Insects do not fall within any of these categories.
In zoological terms, insects comprise the Insecta class of the phylum Arthropoda.
(Webster’s Third New Internat. Dict. (1971) p. 1168.) Since they are not within the
governing definitions contained in [the Act], insects are not eligible for listing as
threatened or endangered species thereunder. While the last sentence of section 2062 and
of section 2067 ‘grandfather’ certain designations made prior to 1985, no insects were so
designated. Therefore, we need not inquire whether insects were eligible for listing prior
to 1985.”9 (81 Ops.Cal.Atty.Gen. at pp. 224, 225, fn. omitted.) In footnote 5, the
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.
15
Attorney General noted: “By comparison, the Federal Endangered Species Act explicitly
includes ‘any member of the animal kingdom, including, without limitation any . . .
arthropod or other invertebrate . . . .’ ” (Id. at p. 225, fn. 5.) The Attorney General
concluded “that insects are ineligible for listing as a threatened or endangered species
under [the Act].” (Id. at p. 225.)
VII
The Current Dispute
In October 2018, the public interest groups petitioned the Commission to list four
species of bumble bee as endangered species: the Crotch bumble bee, the Franklin
bumble bee, the Suckley cuckoo bumble bee, and the Western bumble bee (collectively
the four bumble bee species).
In April 2019, the Department issued a report, in which it recommended “the
Commission accept the Petition for further consideration under [the Act]” because “the
Petition provide[d] sufficient scientific information to indicate [listing the four bumble
bee species] may be warranted.” On June 12, 2019, the Commission “accepted for
consideration the petition submitted to list [the four bumble bee species] as endangered”
under the Act. On June 18, 2019, the Commission filed a notice of findings, pursuant to
section 2074.2, stating “the Commission determined that the amount of information
contained in the petition, when considered in light of the [Department’s] written
evaluation report, the comments received, and the remainder of the administrative record,
would lead a reasonable person to conclude there is a substantial possibility the requested
listing(s) could occur. [¶] Based on that finding and the acceptance of the petition, the
Commission also provid[ed] notice that [the four bumble bee species] are candidate
species as defined by Section 2068.”
In September 2019, petitioners challenged the Commission’s decision by filing a
petition for writ of administrative mandate in the trial court. Petitioners asserted the
Commission’s determination that the four bumble bee species qualify for listing as
16
candidate species under the Act “violated the Commission’s legal duty, was a clear legal
error, and was an abuse of discretion.”
The trial court granted the writ petition. Because our task in this appeal is to
“review the Commission’s decision [designating the four bumble bee species in question
as candidate species under the Act], rather than the trial court’s decision [granting the
writ petition],” we do not detail the parties’ arguments in the trial court or the trial court’s
ruling. (Central Coast Forest Assn. v. Fish & Game Com. (2018) 18 Cal.App.5th 1191,
1205 (Central Coast Forest Assn. II).) Suffice it to say, the trial court concluded “the
word ‘invertebrates’ as it appears in [s]ection 45’s definition of ‘fish’ clearly denotes
invertebrates connected to a marine habitat, not insects such as bumble bees.” However,
assuming there was some ambiguity in the definition, the trial court found the Senate
Committee on Natural Resources’ bill analysis of Assembly Bill 3309 to be “clear
evidence that the Legislature did not intend for [the Act] to protect invertebrates
categorically.” The trial court also found the 1998 published Attorney General opinion
was “entitled to ‘great weight,’ especially in the absence of clear case authority.” The
trial court rejected the Commission’s arguments that its “longstanding interpretation of
[the Act]” and its “scientific expertise” entitled it to deference with respect to whether
bumble bees may be listed, and further rejected the argument section 2582 expressed the
Legislature’s view that insects are covered under the Act or impliedly amended the Act to
cover insects.10
10 Section 2582, subdivision (a)(2) provides the Department may impose civil
liability upon any person who does any of the following acts for profit or personal gain:
“Unlawfully export[ing], import[ing], transport[ing], sell[ing], possess[ing], receiv[ing],
acquir[ing], or purchas[ing], or unlawfully assist[ing], conspir[ing], or aid[ing] in the
importing, exporting, transporting, sale, possession, receiving, acquisition, or purchasing
of any plants, insects, or other species listed pursuant to the California Endangered
Species Act (Chapter 1.5 (commencing with Section 2050)), which are taken or
17
The trial court entered judgment in favor of petitioners and issued a peremptory
writ of mandate “commanding the [Commission] to rescind its determination that the
listing of the Bumble Bees may be warranted and to provide notice that the Bumble Bees
are not candidate species under [the Act].” The Commission, the Department, and the
public interest groups appeal.
DISCUSSION
I
Standard Of Review And Rules Of Statutory Construction
The Commission’s designation of a candidate species under section 2068 is
reviewed under Code of Civil Procedure section 1094.5. (Central Coast Forest Assn. II,
supra, 18 Cal.App.5th at p. 1205; Natural Resources Defense Council v. Fish & Game
Com., supra, 28 Cal.App.4th at p. 1116.) That is because the Act’s listing process is
quasi-judicial in nature.
The sole assertion in this appeal is that the Commission had no statutory authority
to designate the four bumble bee species as candidate species under section 2068 because
bumble bees cannot fall within the definitions of endangered species in section 2062 or
threatened species in section 2067. Because the question presented concerns the proper
interpretation of a statute, and its application to undisputed facts, we review the question
of law de novo. (California Forestry Assn., supra, 156 Cal.App.4th at p. 1544.)
In resolving the question of statutory interpretation, “ ‘ “[o]ur fundamental task . . .
is to ascertain the intent of the lawmakers so as to effectuate the purpose of the
statute.” ’ ” (California Forestry Assn., supra, 156 Cal.App.4th at pp. 1544-1545.) We
generally give words their usual and ordinary meaning. (Id. at p. 1545.) Where,
however, the Legislature has provided a technical definition of a word, we construe the
possessed in violation of this code or the regulations adopted pursuant to this code.”
(Italics added.)
18
term of art in accordance with the technical meaning. (Sacramento County Alliance of
Law Enforcement v. County of Sacramento (2007) 151 Cal.App.4th 1012, 1017.) In
performing this function, we are tasked with liberally construing the Act to effectuate its
remedial purpose. (San Bernadino Valley Audubon Society v. City of Moreno Valley
(1996) 44 Cal.App.4th 593, 601 [“Laws providing for the conservation of natural
resources are of great remedial and public importance and thus should be construed
liberally”]; California Forestry Assn., supra, 156 Cal.App.4th at p. 1545 [same].)
If there is no ambiguity, we presume the lawmakers meant what they said, and we
apply the term or phrase in accordance with that meaning. “ ‘ “If, however, the statutory
terms are ambiguous, then we may resort to extrinsic sources, including the ostensible
objects to be achieved and the legislative history.” ’ [Citation.] While we exercise our
independent judgment in interpreting a statute, we give deference to an agency’s
interpretation if warranted by the circumstances.” (California Forestry Assn., supra, 156
Cal.App.4th at p. 1545.)
II
Section 45 Defines Fish Within The Meaning Of Sections 2062, 2067, And 2068
Petitioners argue section 45 does not apply through section 2 to define fish as used
in sections 2062, 2067, and 2068 because the context requires otherwise. They rely on
the rule against surplusage, which provides courts should “avoid, if possible,
interpretations that render a part of a statute surplusage.” (People v. Cole (2006) 38
Cal.4th 964, 980-981.) Petitioners assert the application of section 45 “would render the
Legislature’s act of expressly including ‘amphibian’ in the definitions of ‘threatened,’
‘endangered,’ and ‘candidate’ species a meaningless act” because it would fail to “ ‘give
meaning to every word and phrase’ ” given amphibian is included in the definition of fish
in section 45 as well. They further assert application of section 45 would render
meaningless words in several other statutes, such as, mollusks, crustaceans, and
amphibians in section 1583; fish, amphibians, mollusks, and crustaceans in section 1003;
19
and fish, amphibians, mollusks, and crustaceans in section 716.3, subdivision (q), which
defines the term wildlife. We do not address petitioners’ surplusage arguments as to code
sections outside the Act. Our task is to interpret the term fish as used in sections 2062,
2067, and 2068 of the Act. Whether the provisions or context of other statutes require
section 45 not define fish as the term is used in those statutes is not a question presented
in this appeal.
The Commission and the Department respond petitioners’ argument contradicts
this court’s opinion in California Forestry Association, in which we stated section 45
applies to the term fish as used in sections 2062 and 2067. In that case, we explained
that, “[w]hile the definition of threatened species and endangered species in the [Act]
includes ‘native species or subspecies of a bird, mammal, fish, amphibian, reptile, or
plant’ (§§ 2062, 2067), the Legislature has narrowed the definition of ‘fish’ to mean [that
which falls within the definition of section 45].” (California Forestry Assn., supra, 156
Cal.App.4th at p. 1552.) We decline to depart from the foregoing interpretation that
section 45 defines fish as used in the endangered and threatened species definitions of the
Act.
It is true the application of section 45 creates textual tension with the Legislature’s
inclusion of amphibian in sections 2062, 2067, and 2068, because amphibian is already
included in the definition of fish in section 45. The rule against surplusage is not,
however, an infallible canon. The canon is merely a “guide for ascertaining legislative
intent, it is not a command.” (Roberts v. United Healthcare Services, Inc. (2016) 2
Cal.App.5th 132, 146.) Statutory interpretation canons, like the rule against surplusage,
must heed to legislative intent. (See ibid.; see also Moore v. California State Bd. of
Accountancy (1992) 2 Cal.4th 999, 1011-1013 [declining to apply ejusdem generis
doctrine where such application would defeat the legislative intent].)
When it enacted the Act, the Legislature was aware the Department and the
Commission had used section 45 to interpret fish as the term was used in the 1970
20
Legislation’s definitions of endangered and rare animals. Indeed, the Department and the
Natural Resources Agency explained in their bill analysis report in June 1984 (well
before several amendments and final passage of the bill) that the Commission already
had the authority to list invertebrates by application of section 45, “the Department . . .
had a long history of regulation and management of numerous classes of invertebrates,”
and “three species of invertebrates [were already] designated as endangered or rare by the
. . . Commission.” (Dept. Fish & Game and Natural Resources Agency, Analysis of
Assembly Bill 3309, June 26, 1984.)
Like the definitions of endangered and rare animals in former section 2051, the
definitions of endangered and threatened species in sections 2062, 2067, and 2068
include fish, without providing any associated definition in the Act. (Compare former
§ 2051 [see Stats. 1970, ch. 1510, § 3] with §§ 2062, 2067, 2068.) Had the Legislature
disagreed with the Department’s and the Commission’s application of section 45’s
definition of fish to the definitions of endangered and rare animals in the 1970
Legislation, as was the established practice in 1984, the Legislature could have said so or
provided a different definition for fish in sections 2062, 2067, and 2068 of the Act. The
Legislature did neither. The Legislature also could have modified the definition in
section 45 if it wished to remove invertebrates from that definition. The Legislature
again took no action. Legislative acquiescence in the face of a responsible agency’s
known construction of a statutory term indicates the Legislature did not intend to disturb
the agency’s interpretation. (See In re Dannenberg (2005) 34 Cal.4th 1061, 1082.)
Rather than providing any indicia of disagreeing with the Department’s and the
Commission’s interpretation, the Legislature ratified their interpretation. The Legislature
expressly provided prior listings under the 1970 Legislation would meet the definitions of
endangered and threatened species in the Act. (§ 2062 [“Any animal determined by the
[C]ommission as ‘endangered’ on or before January 1, 1985, is an ‘endangered
species’ ”]; §2067 [“Any animal determined by the [C]ommission as ‘rare’ on or before
21
January 1, 1985, is a ‘threatened species’ ”].) In doing so, the Legislature confirmed a
terrestrial mollusk and invertebrate, the Trinity bristle snail, was a threatened species
within the meaning of section 2067, and two crustaceans met the definitions of
endangered and threatened species within the meaning of sections 2062 and 2067. (Cal.
Code Regs., tit. 14, § 670.5, Register 83, No. 12 (March 19, 1983) pp. 52.72.2-52.72.4.)
The Legislature’s overt act in that regard cannot be ignored.
The only way the mollusk and two crustaceans could be endangered or threatened
species is by application of section 45 to sections 2062 and 2067. The Legislature thus
expressly sanctioned the application of section 45 to those provisions of the Act.
Moreover, the Legislature amended section 45 in 2015 (Stats. 2015, ch. 154, § 5),
years after this court concluded in California Forestry Association that section 45 applies
to sections 2062 and 2067. The Legislature made only nonsubstantive changes to
section 45 in 2015. (Stats. 2015, ch. 154, § 5.) Had the Legislature disagreed with this
court’s conclusion in 2007 that section 45 applied to define fish as used in sections 2062
and 2067, it could have amended section 45 (or the definitions in the Act) at any point
thereafter to clarify its contrary intent. The Legislature took no such action. When the
Legislature amends a statute without changing the statute in response to a prior judicial
construction, it is presumed the Legislature knew of the interpretation and acquiesced to
it. (See People v. Blakeley (2000) 23 Cal.4th 82, 89.)
Given our conclusion section 45 applies to sections 2062, 2067, and 2068, we do
not address petitioners’ argument that the noscitur a sociis canon should be applied to
read “a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant”
in sections 2062, 2067, and 2068, as encompassing only vertebrate animals. Plainly,
section 45 expressly includes invertebrates within the definition of fish.
We further do not find the legislative history of the Act to support a contrary
interpretation -- i.e., that the Legislature intended for the term fish in sections 2062, 2067,
and 2068 to exclude invertebrates. Petitioners assert the addition of the reporting
22
requirement relating to the necessity and feasibility of including invertebrates under the
Act in the June 25, 1984, amendment to Assembly Bill 3309 “at the same time that the
Legislature deleted ‘invertebrates’ [from the bill] is a dispositive statement of the
Legislature’s understanding that [the Act] did not apply to invertebrates.” Had Assembly
Bill 3309 remained in the form of the June 25, 1984, amendment, petitioners’ position
might have merit. But the bill was not enacted in that form. The Legislature instead
deleted the reporting requirement on August 22, 1984, a few months after the Department
and the Natural Resources Agency submitted their bill analysis stating invertebrates were
already included in section 45. (Sen. Amend. to Assembly Bill 3309, Aug. 22, 1984.)
The Legislature thus did not feel the need to have the Department report on the necessity
and feasibility of including invertebrates under the Act, presumably because, as the
Department and the Natural Resources Agency explained, invertebrates were already
included in the definition of fish by application of section 45. (Dept. Fish & Game and
Natural Resources Agency, Analysis of Assembly Bill 3309, June 26, 1984.) The
Legislature could have disagreed with the Department’s and the Natural Resources
Agency’s bill analysis and amended Assembly Bill 3309 to clarify its contrary view when
the Senate made amendments to the bill in August 1984, and when the Assembly later
considered whether to concur in those amendments; but the Legislature again took no
such action.
For this same reason, we do not give credence to the Senate Committee on Natural
Resources’ analysis of the June 25, 1984, version of the bill, in which the invertebrate
reporting requirement was included. (Sen. Com. on Natural Resources, Analysis of
Assembly Bill 3309, as amended June 25, 1984.) The committee was mistaken when it
stated the bill would exclude all invertebrates, perhaps because it had not yet had an
opportunity to review the Department’s and the Natural Resources Agency’s bill analysis,
which was submitted the next day. As the Department and the Natural Resources
Agency explained in the bill analysis, three invertebrates were already listed as
23
endangered and rare animals under the 1970 Legislation, well before Assembly Bill 3309
was introduced, and the June 25, 1984, version of the bill added the provisions that
invertebrates listed as endangered or rare animals under the 1970 Legislation would be
endangered or threatened species under sections 2062 and 2067 of the Act. (Dept. Fish &
Game and Natural Resources Agency, Analysis of Assembly Bill 3309, June 26, 1984;
Sen. Amend. to Assembly Bill 3309, June 25, 1984.) The Department and the Natural
Resources Agency later reiterated the position in the enrolled bill report. They explained
the Commission had declared “65 species of mammals, birds, reptiles, amphibians,
fishes, and invertebrates to be endangered or rare” and the deletion of invertebrate from
express inclusion in the definitions of endangered and threatened species was minor
because sufficient authority already existed to list invertebrates as endangered and
threatened species. (Dept. Fish & Game and Natural Resources Agency, Enrolled Bill
Report on Assembly Bill 3309, Sept. 11, 1984, italics added.) Our Supreme Court has
sanctioned the consideration of enrolled bill reports by a responsible agency in analyzing
legislative intent. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1218, fn. 3.)
The Attorney General’s cursory 1998 opinion stating insects are ineligible for
listing under the Act is even less persuasive. Petitioners argue we should defer to the
Attorney General’s formal opinion because formal opinions of the Attorney General are
persuasive authority. (Citing County of San Diego v. State of California (1997) 15
Cal.4th 68, 104.) Petitioners assert, although the Attorney General did not specifically
address section 45, “the Attorney General cited to the definitions section multiple times”
in other parts of the opinion and thus “was clearly aware of the definitions in Chapter 1 of
the Fish and Game Code.” Petitioners posit, because the Attorney General considered
“the definitions in Chapter 1 of the Fish and Game Code,” the Attorney General must
have concluded section 45 does not apply to the Act. We disagree.
It is true our Supreme Court has said “ ‘[o]pinions of the Attorney General, while
not binding, are entitled to great weight. [Citations.] In the absence of controlling
24
authority, these opinions are persuasive “since the Legislature is presumed to be
cognizant of that construction of the statute” ’ ” and we presume the interpretation “ ‘has
come to the attention of the Legislature, and if it were contrary to the legislative intent
that some corrective measure would have been adopted . . . .’ ” (California Assn. of
Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17.) But there are several reasons the
Attorney General’s 1998 opinion has no persuasive value under the circumstances
presented.
First, in 1984 the Legislature did not have before it the Attorney General’s 1998
opinion. (Cf. California Assn. of Psychology Providers v. Rank, supra, 51 Cal.3d at
p. 17; California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4
Cal.5th 1032, 1042; Napa Valley Educators’ Assn. v. Napa Valley Unified School Dist.
(1987) 194 Cal.App.3d 243, 251.) In fact, in 1984, as noted by the Department and the
Natural Resources Agency in their bill analysis, the Attorney General’s position
apparently was that the Commission had the authority to list insects, such as butterflies.
(Dept. Fish & Game and Natural Resources Agency, Analysis of Assembly Bill 3309,
June 26, 1984.) Second, the 1998 opinion makes no mention of section 45, and we
decline to infer, as petitioners do, the Attorney General must have considered the
unmentioned statute. Indeed, the opinion makes clear the Attorney General merely
looked to the definitions in sections 2062, 2067, and 2068, and found insects were not
expressly included in the list identified in those statutes -- i.e., birds, mammals, fish,
amphibians, reptiles, and plants -- without any further analysis. Third, the Attorney
General did not, in 1998, discuss or analyze the term invertebrate in the definition of fish
in section 45, and failed to recognize the Commission had, in fact, listed invertebrates
under the 1970 Legislation, one of which is a threatened species by application of section
2067. (81 Ops.Cal.Atty.Gen., supra, at pp. 224-225, fn. omitted.) And fourth, the
Attorney General, in 1998, did not consider the legislative history. We thus find no
persuasive value in the Attorney General’s published 1998 opinion.
25
In sum, the Commission has the authority to list invertebrates as endangered or
threatened species. We next consider whether the Commission may list only aquatic
invertebrates or whether it may list any invertebrate as an endangered or threatened
species.
III
The Commission May List Any Invertebrate
Meeting The Requirements Of Sections 2062, 2067, And 2068
Petitioners assert, if section 45 applies to sections 2062, 2067, and 2068, the term
invertebrate should be read as limited to only aquatic invertebrates, thereby excluding
terrestrial insects, because: (1) the First District Court of Appeal in 1987 concluded the
Act does not “ ‘protect insect species such as the endangered butterflies on San Bruno
Mountain’ ” (quoting W. W. Dean & Assocs. v. City of S. San Francisco (1987) 190
Cal.App.3d 1368, 1377); (2) the Department has, at times subsequent to 1984, taken the
position the Act does not protect insects; (3) the Office of Administrative Law’s 1980
determination butterflies could not be listed under the 1970 Legislation is entitled to
deference and constitutes “persuasive authority that supports the trial court’s
determination” (citing Grier v. Kizer (1990) 219 Cal.App.3d 422, 435 and Union of Am.
Physicians & Dentists v. Kizer (1990) 223 Cal.App.3d 490, 498); (4) the United States
Fish and Wildlife Service in 1997, 2002, 2011, and 2014, stated insects are not covered
under the Act; (5) the Legislature recently “again confirmed that insects cannot be listed,”
as stated in a report by the Senate Committee on Natural Resources and Water’s analysis
of Senate Bill No. 49 during the 2017-2018 regular session; (6) the Department’s and the
Department of Finance’s enrolled bill reports on Senate Bill 858, when section 45 was
amended to include invertebrates in 1969, indicate the term invertebrate was added to the
definition of fish in section 45 to protect aquatic life; (7) application of the noscitur a
sociis canon requires a restrictive reading of the term invertebrate as applying to aquatic
26
species only; and (8) including terrestrial insects in the definition would lead to absurd
results if section 45 is applied to sections 8030, 8034, 8036, 8598.2.
We certainly agree section 45 is ambiguous as to whether the Legislature intended
for the definition of fish to apply to purely aquatic species. A fish, as the term is
commonly understood in everyday parlance, of course, lives in aquatic environments. As
the Department and the Commission note, however, the technical definition in section 45
includes mollusks, invertebrates, amphibians, and crustaceans, all of which encompass
terrestrial and aquatic species.11 Moreover, by virtue of the express language in
section 2067, the Trinity bristle snail -- a terrestrial mollusk and invertebrate -- is a
threatened species under the Act and could have qualified as such only within the
definition of fish under section 45. In the end, we do our best to determine the
Legislature’s intent when it enacted the Act, while construing the Act liberally, as we
must. (In re Pedro T. (1994) 8 Cal.4th 1041, 1048 [“[i]t is axiomatic that in assessing the
import of a statute, we must concern ourselves with the Legislature’s purpose at the time
of the enactment”]; San Bernadino Valley Audubon Society v. City of Moreno Valley,
supra, 44 Cal.App.4th at p. 601 [“[l]aws providing for the conservation of natural
resources are of great remedial and public importance and thus should be construed
liberally”]; California Forestry Assn., supra, 156 Cal.App.4th at pp. 1544-1545 [same].)
We conclude a liberal interpretation of the Act,12 supported by the legislative
history and the express language in section 2067 that a terrestrial mollusk and
invertebrate is a threatened species (express language we cannot ignore), is that fish
11 For example, the common pill bug is a terrestrial crustacean, the Siskiyou
Mountains salamander is a terrestrial amphibian, and the Trinity bristle snail is a
terrestrial gastropod that is both a mollusk and an invertebrate.
12 Undoubtedly, the liberal construction of section 45 is that it applies to all
invertebrates -- i.e., that the term is not limited to aquatic invertebrates.
27
defined in section 45, as a term of art, is not limited solely to aquatic species.
Accordingly, a terrestrial invertebrate, like each of the four bumble bee species, may be
listed as an endangered or threatened species under the Act.
We view the favorable legislative history supporting that interpretation as follows.
Under the 1970 Legislation, the Commission could list as endangered and rare animals
“an animal of a species or subspecies of birds, mammals, fish, amphibia, or reptiles”
meeting the statutes’ further qualifications. (Former § 2051; see Stats. 1970, ch. 1510,
§ 3.) Since 1969, the definition of fish in section 45 has included mollusks, invertebrates,
and crustaceans. (Stats. 1969, ch. 689, §1.) By 1984, the Commission had listed as a rare
animal a terrestrial mollusk and invertebrate.
In 1984, when the Act was introduced, the Legislature considered whether to add
invertebrates to the list of birds, mammals, fish, amphibians, or reptiles otherwise eligible
for listing as endangered and threatened species (previously called endangered and rare
animals under the 1970 Legislation). (Assembly Bill 3309, as introduced Feb. 16, 1984.)
In their bill analysis, the Department and the Natural Resources Agency supported the
addition of invertebrates as provided in the introduced version of Assembly Bill 3309, but
noted the Commission already had the authority to list invertebrates under section 45 and
had previously listed three invertebrates as endangered or rare animals. (Dept. Fish &
Game and Natural Resources Agency, Analysis of Assembly Bill 3309, June 26, 1984.)
The Department and the Natural Resources Agency noted their view that the Commission
had the “authority to designate insects [like butterflies] as endangered or threatened” (a
position with which the Attorney General apparently agreed at the time), even though the
Office of Administrative Law expressed a “doubt” in that regard. (Ibid.)
The Legislature ultimately struck the addition of invertebrates in the introduced
version of the bill after the Department and the Natural Resources Agency submitted
their bill analysis, but the Legislature did not change section 45 or make any
modifications to the list of species eligible for listing under the Act in response to the
28
stated position in the bill analysis that the Commission had “the authority to designate
insects,” such as butterflies. (Dept. Fish & Game and Natural Resources Agency,
Analysis of Assembly Bill 3309, June 26, 1984.) The Legislature further added express
language incorporating the Commission’s prior endangered and rare animal listings,
including the listing of a terrestrial mollusk and invertebrate as a threatened species,
within the definitions of endangered and threatened species in sections 2062 and 2067.
“[I]t is well established that ‘[t]he contemporaneous construction of a new
enactment by the administrative agency charged with its enforcement, although not
controlling, is entitled to great weight.’ [Citation.] An implicit reason for the rule is that
a contemporaneous construction is likely to reflect the understanding of the Legislature
that enacted the statute, which will not be the case with an administrative construction
made many years after the fact.”13 (Conservatorship of Whitley, supra, 50 Cal.4th at
p. 1218, fn. 3.) From the foregoing legislative history, we glean the Legislature was
aware of and agreed with the Department’s and the Natural Resources Agency’s
13 As to the Department’s actions after 1984, we understand the Department has, at
times, taken the apparently contradicting position that insects are not included in the
meaning of fish as defined in the code. (See, e.g., Cal. Code Regs., tit. 14, § 783.1,
subd. (d).) We are not, however, tasked with evaluating whether the Department has
changed its view following the enactment of the Act. We are instead tasked with
evaluating what the Legislature intended when it enacted the Act in 1984. As our
Supreme Court explained, an administrative construction made many years after the fact
does not reflect the understanding of the Legislature when it enacted the statute.
(Conservatorship of Whitley, supra, 50 Cal.4th at p. 1218, fn. 3.) For this same reason,
we do not find persuasive the 1990 letter from the then-Director of the Department to an
assemblymember concerning the Legislature’s intent in enacting the Act in 1984 (of
which we took judicial notice ante), or the United States Fish and Wildlife Services’ brief
statements in its own rulemaking in 1997, 2002, 2011, and 2014, that insects are not
covered under the Act. Moreover, as to the 1990 letter authored by the then-Director of
the Department, we note it does not aid in the interpretation of the statute because it
merely states the individual opinion of the author. (Quintano v. Mercury Casualty Co.
(1995) 11 Cal.4th 1049, 1062, fn. 5.)
29
interpretation of the Commission’s listing authority -- which the Department and the
Natural Resources Agency expressly explained extended to insects like butterflies. (Dept.
Fish & Game and Natural Resources Agency, Analysis of Assembly Bill 3309, June 26,
1984.) That is because the Legislature essentially maintained the status quo as to the
Commission’s listing determinations by not changing section 45 or otherwise providing
any limiting language in the Act, and instead enacting functionally identical language to
the Commission’s listing authority under the 1970 Legislation. (See In re Dannenberg,
supra, 34 Cal.4th at p. 1082 [legislative acquiescence in the face of a responsible
agency’s known construction of a statutory term indicates the Legislature did not intend
to disturb the agency’s interpretation].)14
The Legislature then approved of the Commission’s prior decision to list a
terrestrial mollusk and invertebrate as a rare animal under the 1970 Legislation by
expressly stating it “is a ‘threatened species’ ” under the Act. (§ 2067, italics added.) In
other words, the Legislature approved of the Commission’s interpretation that section 45
gave it the authority to list a terrestrial species under the definition of fish. This
legislative history, when viewed through the liberal lens with which we are tasked,
supports the interpretation the Commission has the authority to list any invertebrate as an
endangered, threatened, or candidate species, if it meets the requirements in those
definitions of the Act.
In light of the foregoing, we do not find the Office of Administrative Law’s 1980
determination persuasive. We also note nothing in the record contains the Office of
14 We note a responsible agency’s interpretation of a bill does “not take precedence
over more direct windows into legislative intent such as committee analyses.” (In re
Conservatorship of Whitley, supra, 50 Cal.4th at p. 1218, fn. 3.) The record, however,
contains no contrary committee analyses. As explained ante, the Senate Committee on
Natural Resources was mistaken when it stated all invertebrates would be excluded from
eligibility for listing as endangered and threatened species. (Sen. Com. on Natural
Resources, Analysis of Assembly Bill 3309, as amended June 25, 1984.)
30
Administrative Law’s reasoning, nor do we know why it believed terrestrial
invertebrates, such as butterflies, could not be listed under the 1970 Legislation, whereas
it had no quibble with the Commission’s determination to list a terrestrial mollusk and
invertebrate like the Trinity bristle snail as a threatened animal.
Turning to petitioners’ remaining arguments, we do not consider the application of
section 45 to statutes in other chapters of the code. That is because to do so, we would
have to consider whether “the provisions or the context otherwise requires” that
section 45 not apply to each of those statutes (§ 2), which are not questions before us in
this appeal.
We further do not find persuasive the general comment in the Senate Committee
on Natural Resources and Water’s report on then-proposed, but not enacted, Senate Bill
No. 49 during the 2017-2018 regular session that section 2062 does “not include insects.”
Committee reports concerning unenacted bills cannot rebut evidence of the Legislature’s
actual intent at the time it enacted a statute. (See People v. Gonzales (2015) 232
Cal.App.4th 1449, 1461 [“The Legislature’s expressions of its intent at the time it passes
a bill cannot be rebutted by subsequent statements by a different Legislature about its
retrospective understanding of the nature of the previous enactment”].)
For the same reason, we do not find the legislative history of Assembly Bill 559,
as advanced by petitioners, persuasive. That bill added section 1021 to the code. (Stats.
2015, ch. 478, § 2.) Section 1021 generally provides the Department “may take feasible
actions to conserve monarch butterflies and the unique habitats they depend upon for
successful migration,” and “may partner with federal agencies, nonprofit organizations,
academic programs, private landowners, and other entities that undertake actions to
conserve monarch butterflies and aid their successful migration, including the Monarch
Joint Venture.” (§ 1021, subds. (a)-(b).) By adding section 1021, the Legislature did not
modify or amend any provision of the Act. (See §§ 2060-2089.25.) Section 1021 further
does not impact or address the Commission’s authority under the Act. The fleeting
31
statements in the legislative history of Assembly Bill 559 that the Act does not cover or
include a category for insects simply has no bearing on what the Legislature intended
when it enacted the Act in 1984. “Committee reports about subsequent bills involving
unrelated amendments, while not entirely irrelevant, may not be utilized to rebut evidence
of the Legislature’s actual intent at the time it enacted a statute. . . . The Legislature’s
expressions of its intent at the time it passes a bill cannot be rebutted by subsequent
statements by a different Legislature about its retrospective understanding of the nature of
the previous enactment.” (People v. Gonzales, supra, 232 Cal.App.4th at p. 1461.)
We also find no merit in petitioners’ reliance on the 1987 appellate case because
the court did not consider the meaning of invertebrate in section 45, as applied to
sections 2062, 2067, and 2068. The development at issue in that case was proposed on
San Bruno Mountain, which is inhabited by the Mission Blue butterfly. (W. W. Dean &
Assocs. v. City of S. San Francisco, supra, 190 Cal.App.3d at pp. 1371, 1373.) The
butterfly was listed as an endangered species under the federal Endangered Species Act.
(W. W. Dean & Assocs., at p. 1371.) The City of South San Francisco approved an
amendment to the then-existing habitat conservation plan for the development. (Id. at
pp. 1372-1374.) The question before the appellate court was whether the adoption of the
amendment constituted an administrative act not subject to referendum. (Id. at p. 1371.)
The appellate court answered the question in the affirmative. (Ibid.)
Pertinent to petitioners’ argument in this appeal, the appellate court explained
“where a local governing body implements federal policy pursuant to a comprehensive
plan of federal regulations governing matters of national concern, its actions are
administrative and not subject to local referendum. Such result is consistent with the
principle of federal preemption: state law is nullified to the extent it stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of Congress.”
(W. W. Dean & Assocs. v. City of S. San Francisco, supra, 190 Cal.App.3d at p. 1376.)
The appellant in that case argued there was no preemption of state law and state law
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exclusively governed on the issue “because California has a federally approved
cooperative conservation agreement,” as provided in section 1535 of title 16 of the
United States Code. (W. W. Dean & Assocs., at pp. 1376-1377.) The appellate court
found the federal code section irrelevant to the development because the development
was “not part of nor governed by any state cooperative agreement” under the referenced
code section. In a single sentence, without any analysis or discussion, the appellate court
stated: “Moreover, as appellant itself points out, [the Act] does not even protect insect
species such as the endangered butterflies on San Bruno Mountain.” (Id. at p. 1377.)
Clearly, because the appellate court in W. W. Dean & Associates did not consider
or interpret the provisions of the Act at issue here, the case is not authority regarding the
interpretation of section 45 and its application under the Act. (California Building
Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043 [“It is
axiomatic that cases are not authority for propositions that are not considered”].)
We next consider petitioners’ suggested application of the noscitur a sociis canon.
“Noscitur a sociis means ‘ “a word takes meaning from the company it keeps.” ’
[Citation.] Under this rule, ‘ “ ‘[a] word of uncertain meaning may be known from its
associates and its meaning “enlarged or restrained by reference to the object of the whole
clause in which it is used.” [Citation.]’ [Citation.]” [Citation.] “ ‘ “In accordance with
this principle of construction, a court will adopt a restrictive meaning of a listed item if
acceptance of a more expansive meaning would make other items in the list unnecessary
or redundant, or would otherwise make the item markedly dissimilar to the other items in
the list.” ’ ” ’ ” (People v. Lucero (2019) 41 Cal.App.5th 370, 398.)
If we were to apply the noscitur a sociis canon to the term invertebrate in section
45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have
to apply that limitation to all items in the list. In other words, we would have to conclude
the Commission may list only aquatic mollusks, crustaceans, and amphibians as well.
Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s
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listing of a terrestrial mollusk and invertebrate as a threatened species. Furthermore,
limiting the term to aquatic would require a restrictive rather than liberal interpretation of
the Act, which is also directly at odds with our duty to liberally construe the remedial
statutes contained therein. We thus decline to apply the statutory interpretation canon
here.
We also do not read the Department’s and the Natural Resources Agency’s
enrolled bill report regarding Senate Bill 858’s amendment to section 45 as restrictive as
petitioners suggest we should read it. The Department and the Natural Resources Agency
merely identified examples of invertebrates (i.e., using “such as”). (Dept. Fish & Game
and Natural Resources Agency, Enrolled Bill Report on Senate Bill 858, July 24, 1969.)
The Department and the Natural Resources Agency included worms in the list of
examples, in addition to starfish, sea urchins, and sponges. (Ibid.) The enrolled bill
report did not specify or indicate “worms” meant only aquatic worms. (See, e.g., 3 The
New Century Dict. of English Language (1927) pp. 2226-2227 [worm defined as, “[i]n
popular language, any of numerous, small creeping animals with more or less slender,
elongated bodies, and without limbs or with very short ones, including individuals of
widely differing kinds, as earthworms, tapeworms, insect larvae, adult forms of some
insects, certain small crustaceans and mollusks, certain lizards . . .”]; Webster’s 3d New
Internat. Dict. (1981) p. 2636, col. 1 [worm defined to include “earthworm; broadly: an
annelid worm” (capitalization omitted), “any of numerous relatively small more or less
elongated [usually] naked and soft-bodied animals resembling an earthworm,” and “an
insect larva”]; Oxford English Dict. (1933) p. 307, col. 1 [worm defined as “[a] member
of the genus Lumbricus; a slender, creeping, naked, limbless animal, usually brown or
reddish, with a soft body divided into a series of segments; an earthworm. More widely,
any annelid, terrestrial, aquatic, or marine”].)
Finally, we do not consider the Department of Finance’s enrolled bill report to be
instructive as to which species qualified as invertebrates in section 45, because the
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Department of Finance is not a responsible agency implementing and enforcing the
provisions of the Act. (See Elsner v. Uveges (2004) 34 Cal.4th 915, 934, fn. 19.)
For the foregoing reasons, we agree with the Department and the Commission that
the Commission may list any invertebrate as an endangered or threatened species under
2062 and 2067, if the invertebrate meets the requirements of those statutes, and thus may
also designate any invertebrate as a candidate species under section 2068, if the species
or subspecies may otherwise qualify as an endangered or threatened species.
DISPOSITION
The judgment is reversed. Appellants are entitled to costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1), (2).)
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Hoch, J.
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