1

Filed 5/31/22 (review denied 9/21/22: reposted with Supreme Court order and statement)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

ALMOND ALLIANCE OF CALIFORNIA et al.,

Plaintiffs and Respondents,

v.

FISH AND GAME COMMISSION et al.,

Defendants and Appellants;

XERCES SOCIETY FOR INVERTEBRATE 

CONSERVATION et al.,

Interveners and Appellants.

C093542

(Super. Ct. No. 

34201980003216CUWMGDS)

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.
2

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.
3

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 

court and thereby eliminating any opportunity for the other parties to provide a written 

analysis regarding the documents’ applicability to the issue presented.
4

omitted) of the code. Prior to 1969, section 45 defined fish as “wild fish, mollusks, or 

crustaceans, including any part, spawn or ova thereof.” In 1969, the Legislature amended 

section 45 via Senate Bill No. 858 (1969 Reg. Sess.) (Senate Bill 858) to add 

invertebrates and amphibia to the definition of fish. (Stats. 1969, ch. 689, § 1.) 

Section 45 has been amended only once since 1969 -- in 2015 (effective January 1, 

2016), when the Legislature made nonsubstantive stylistic changes, modifying the 

definition to read “ ‘[f]ish’ means a wild fish, mollusk, crustacean, invertebrate, 

amphibian, or part, spawn, or ovum of any of those animals.” (Stats. 2015, ch. 154, § 5.) 

When Senate Bill 858 was moving through the Legislature, the Department and 

Natural Resources Agency submitted an enrolled bill report in support of the bill, stating 

“[t]he expanded definition of fish will permit closer control and monitoring of the harvest 

of species such as starfish, sea urchins, sponges and worms, and the . . . Commission will 

be authorized to make regulations deemed necessary for proper protection and 

management of these species.” (Dept. Fish & Game and Natural Resources Agency, 

Enrolled Bill Rep. on Senate Bill 858, July 24, 1969.) The Department of Finance also 

submitted an enrolled bill report regarding Senate Bill 858. The Department of Finance 

therein stated: “By expanding the definition of fish as proposed in this bill, it will be 

possible for the . . . Commission to regulate the taking of amphibians (frogs) and 

invertebrates, such as starfish, sea urchins, anemones, jellyfish and sponges.” (Dept. 

Finance, Enrolled Bill Rep. on Senate Bill 858, Aug. 1, 1969.) 

Section 2 in the same chapter as section 45 provides the definition of fish governs 

the code and regulations adopted under the code, “[u]nless the provisions or the context 

otherwise requires.”4

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 
5

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 

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 

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.
6

the Smith’s blue butterfly and the Trinity bristle snail. The Trinity bristle snail is a 

terrestrial gastropod that is both a mollusk and an invertebrate. 

The minutes from the meeting state the Commission’s executive secretary reported 

the Commission had received a letter from Deputy Attorney General Denis Smaage, 

“which justified the Commission’s authority to classify insects as rare or endangered,” 

and reaffirmed the Commission had the authority to designate invertebrates as rare and 

endangered animals. 

The Commission submitted the June 1980 adopted California Code of 

Regulations, title 14, section 670.5 amendment to the Office of Administrative Law for 

approval and publication.5 The Office of Administrative Law disapproved the request on 

the ground the 1970 Legislation could not “be construed to include insects within the 

definition of ‘birds, mammals, fish, amphibia, or reptiles.’ ” The Commission asked for 

reconsideration, to which the Office of Administrative Law responded the Commission’s 

remedy was to appeal the decision to the Governor, but the time to do so had lapsed. 

At a meeting on August 1, 1980, the Commission considered whether to refile the 

rejected amendment “re: list of rare and endangered species of birds, mammals, fishes, 

insects, crustaceans, reptiles and mollusks.” (Capitalization omitted.) The meeting 

minutes note the Commission’s executive secretary “stated that the Commission had 

received a letter from Gene Livingston, Director of the Office of Administrative Law, 

which took exception to the Deputy Attorney General’s opinion regarding the definition 

of insects as fish was in error. Mr. Livingston contended that insects are not fish and that 

the Commission lacked authority to list insects as endangered or rare species.” The 

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).)
7

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 

“[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 
8

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.)

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 
9

. . . 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 

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 

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.
10

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 . . 

. 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 

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. 
11

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 

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 
12

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 

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 
13

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 

‘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.) 

8 These three statutes (§§ 2062, 2067 & 2068) have not been amended since being 

enacted in 1984.
14

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.)

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 
15

(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 

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). 

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.
16

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 

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 
17

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

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, 

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 

possessed in violation of this code or the regulations adopted pursuant to this code.” 

(Italics added.)
18

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 

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 
19

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; 

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 
20

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 

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 
21

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 

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 
22

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 

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 
23

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 

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 
24

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 

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 
25

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.

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 
26

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 

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 

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. 
27

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

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 

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.
28

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 

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 
29

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 

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 

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.)
30

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 

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 

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.) 
31

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 

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
32

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 

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 
33

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 

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.
34

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 

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 
35

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.
1

Filed 9/21/22

Court of Appeal, Third Appellate District - No. C093542

S275412

IN THE SUPREME COURT OF CALIFORNIA

En Banc

________________________________________________________________________

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

v.

FISH AND GAME COMMISSION et al., Defendants and Appellants;

XERCES SOCIETY FOR INVERTEBRATE CONSERVATION et al., Interveners and 

Appellants.

________________________________________________________________________

The petition for review is denied.

Guerrero, J., is of the opinion the petition should be granted.

(See separate statement by Cantil-Sakauye, C. J.)

_______________/s/____________

 Chief Justice
1

ALMOND ALLIANCE OF CALIFORNIA v. FISH AND GAME 

COMMISSION

S275412

Statement by Chief Justice Cantil-Sakauye

Our denial of a petition for review does not communicate 

any particular view regarding the merits of the issues presented 

in the petition. Thus, all should understand that our decision to 

deny review in this case is not an endorsement (nor is it a 

rejection) of the statutory analysis undertaken by the Court of 

Appeal, which determined that bumble bees, a nonaquatic 

invertebrate, are susceptible to being listed as endangered 

under the California Endangered Species Act (Fish & G. Code, 

§ 2050 et seq.; CESA) because that statute applies to fish (Fish 

& G. Code, §§ 2062, 2067 & 2068), and “invertebrates” are 

included within what the Court of Appeal deemed to be the 

applicable definition of “fish” (id., § 45). (Almond Alliance of 

California v. Fish & Game Com. (2022) 79 Cal.App.5th 337, 

341.) 

Yet if experience is any guide, our decision not to order 

review will be misconstrued by some as an affirmative 

determination by this court that under the law, bumble bees are 

fish. A better-informed observer might ask: How can the court 

pass up this opportunity to review the Court of Appeal’s 

interpretation of the Fish and Game Code, which seems so

contrary to common knowledge that bumble bees are not a type 

of fish? Doesn’t this clear disconnect necessarily amount to “an 

important question of law” (Cal. Rules of Court, rule 8.500(b)(1))
ALMOND ALLIANCE OF CALIFORNIA v. FISH AND GAME COM.

Cantil-Sakauye, C. J., statement upon denial of review

2

warranting this court’s intervention, because the Legislature

could not possibly have intended such a result? 

Were things always that simple. Careful analysis of a 

statute to divine legislative intent can sometimes yield results 

that might seem surprising at first blush. Courts engaged in 

this task have interpreted “less” as “more” (Amalgamated 

Trans. Loc. 1309 v. Laidlaw Tran. Ser. (9th Cir. 2006) 435 F.3d 

1140, 1146) and “unlawful” as “lawful” (Scurto v. LeBlanc (La. 

1938) 184 So. 567, 574). Long ago, the United States Supreme 

Court concluded that the “seas” referenced in one statute 

required no water at all (Murray’s Lessee v. Baker (1818) 16 U.S. 

541, 545); quite recently, it determined that a fish is not a 

“tangible object” (United States v. Yates (2015) 574 U.S. 528, 

536). 

These kinds of seemingly illogical outcomes can in fact

best capture the enacting legislature’s intent in a variety of 

circumstances. A statute may be construed in a manner that

goes beyond the literal meaning of its text to avoid an absurd 

result the legislature could not possibly have contemplated. 

Sometimes courts perceive a scrivener’s error or typo that must 

be corrected to vindicate the intent behind a measure. Or the 

context surrounding the use of a word or phrase within a statute

can convey that it carries an unusual meaning, peculiar to that 

law. The Court of Appeal below concluded that the interpretive 

question before it fell into the last of these categories, with the 

consequence that bumble bees should indeed be regarded as 

“fish” under the CESA. 

Even if the Court of Appeal arrived at what might 

superficially seem like a counterintuitive result, that alone does

not establish that it erred. Moreover, our decision not to order 
ALMOND ALLIANCE OF CALIFORNIA v. FISH AND GAME COM.

Cantil-Sakauye, C. J., statement upon denial of review

3

review here does not prevent us from considering the CESA’s 

reach in some future case, at which time we may agree or 

disagree with the Court of Appeal’s analysis. In the interim, the 

Legislature is in a position to make whatever statutory 

amendments it may regard as necessary or useful. For although 

it may not be exceptional for a court to determine that a 

particular word or phrase within a statute carries a meaning 

that deviates from common parlance or understanding, such 

decisions also can provide notice to legislators that some 

clarification may be in order.

CANTIL-SAKAUYE, C. J.

We Concur:

CORRIGAN, J.

GROBAN, J.