Culpable Mental States in Oregon Wildlife Cases: State v. Bordeaux/Bordeaux

What a 2026 Oregon Court of Appeals decision may mean for misdemeanor wildlife charges.

In Oregon, a wildlife offense may be charged as a misdemeanor or a violation, with one important distinction: a “culpable mental state.” On August 19, 2026, the Oregon Court of Appeals addressed how culpable mental states apply to the individual elements of commercial fishing misdemeanor charges. The case, State v. Bordeaux/Bordeaux, 352 Or App 327 (2026), involved a demurrer, which is a special motion challenging whether the charging document states an offense.

This post discusses the court’s ruling, the different criminal mental states under ORS 161.085, and why the wording of a misdemeanor wildlife charge may matter.

KEY POINT Criminal negligence may be sufficient for some circumstances surrounding a wildlife offense, but it is not necessarily sufficient for the conduct that makes the offense criminal. In Bordeaux, the state was required to allege knowing or intentional conduct for charges involving the purchase or sale of fish, but did not do so, resulting in the case being sent back to the trial court.

Background: Culpable Mental States

One of the most important and complex aspects of criminal law is the culpable, or criminal, mental state. In Oregon, there are four criminal mental states: intentionally, knowingly, recklessly, and criminal negligence. ORS 161.085 defines each mental state.

• • Intentional: A person acts intentionally when the person’s conscious objective is to cause a result or engage in conduct.

• • Knowing: A person acts knowingly when the person acts with awareness that the conduct is of a particular nature or that a circumstance exists.

• • Reckless: A person acts recklessly when the person consciously disregards a substantial and unjustifiable risk regarding a result or circumstance. That disregard must be a gross deviation from the standard of care a reasonable person would observe in the situation.

• • Criminal negligence: A person acts with criminal negligence when the person fails to be aware of a substantial and unjustifiable risk regarding a result or circumstance. That failure must also be a gross deviation from the standard of care a reasonable person would observe in the situation.

Interestingly, the four mental states do not apply in the same way to every part of a crime. Intention and knowledge may apply to conduct. Intention, recklessness, and criminal negligence may apply to results. Knowledge, recklessness, and criminal negligence may apply to circumstances. These distinctions were the primary focus of the demurrer argument in Bordeaux.

The Charges and the Demurrer in Bordeaux

Perry and Cassidy Bordeaux managed the same commercial fishing business. The state charged each defendant with 18 counts involving fishing activity, including the unlawful purchase or sale of fish without the required license and the failure to complete fish-receiving tickets. With one exception, the state alleged the charges with a mental state of criminal negligence.

The defendants challenged the charges by demurrer. They argued that at least some part of each offense had to be alleged with a mental state of knowledge or intent. In their view, criminal negligence was insufficient because the charged offenses included conduct elements, and criminal negligence does not apply to conduct.

The trial court denied the demurrer. The defendants later entered conditional guilty pleas to certain charges, which allowed them to renew the issue in the Oregon Court of Appeals.

The Court’s Conduct-and-Circumstance Analysis

The Court of Appeals concluded that ORS 506.991, the commercial fishing penalty statute, does not choose a culpable mental state for every element of a commercial fishing offense. Instead, the proper mental state must be determined by examining the elements of the particular crime.

For the charges involving the purchase or sale of fish without a license, the court identified at least two parts:

• • buying or selling food fish, which is conduct; and

• • being without the required license, which is a circumstance.

A PLAIN-ENGLISH EXAMPLE A person may intentionally buy or sell fish while failing to realize that a license is required or that the person is not properly licensed. The purchase or sale is the conduct. The lack of a license is a circumstance. Those two parts of the offense may require different mental states.

Under the framework discussed in State v. Simonov, 358 Or 531 (2016), conduct elements generally require proof of an intentional or knowing mental state. Circumstance elements may be established with knowledge, recklessness, or criminal negligence. Therefore, the state had to allege that the defendants knowingly or intentionally bought or sold fish. Criminal negligence could apply to whether they were unlicensed, but it was not enough by itself for the buying or selling conduct.

What the Court Decided

The Court of Appeals held that the fish-purchase and fish-sale counts alleged only with criminal negligence failed to state an offense. The trial court should have granted the demurrer as to Counts 1, 3, 5, 6, 7, 10, 11, 12, and 13.

The court did not decide the proper mental states for the remaining fish-ticket counts. The parties had not developed the elements and mental states of those charges individually, and success on some of the demurrer issues required a remand under the defendants’ conditional plea agreements.

The opinion also addressed a separate motion to suppress location data from the fishing vessel’s federally required vessel monitoring system. The Court of Appeals upheld the denial of that motion because it concluded that the defendants had consented to the use of the data permitted by federal law and that the disclosure to Oregon officials fell within federal law.

How Bordeaux Relates to Oregon Wildlife Charges

Although Bordeaux involved the commercial fishing statutes and ORS 506.991, the court expressly compared that statute to ORS 496.992, the penalty statute used for all other Oregon wildlife offenses. The court explained that the relevant wording of the two statutes is the same and that the legislature intentionally aligned them.

The court also discussed State v. Mankiller, 344 Or App 327 (2025), rev den, 375 Or 155 (2026). Mankiller held that ORS 496.992 does not create a separate element requiring the defendant to know that the conduct violated a wildlife law or regulation. Bordeaux does not change that conclusion. Rather, Bordeaux explains that the penalty statute does not select one mental state for every part of every wildlife or fishing offense.

The practical point is more specific: a court must examine the elements of the particular charge and determine which mental state applies to each material element. Bordeaux may therefore apply to misdemeanor wildlife charges under ORS 496.992, but it does not mean that every wildlife charge requires the same mental state or that every charge alleged with criminal negligence is defective.

What Does This Case Mean for Someone Facing a Wildlife Charge?

Someone charged with a misdemeanor wildlife offense may have a way to require the prosecution to allege a mental state that is more difficult to prove at trial. Relying on criminal negligence alone may be insufficient when the offense has a conduct element requiring knowledge or intent.

For that reason, the charging document should be reviewed carefully. The review should identify the particular statute and administrative rule, separate the conduct from the circumstances or results, and determine whether the state alleged an appropriate mental state for each material element. If it did not, a demurrer may be available. Whether a demurrer is appropriate depends on the wording of the charge and the law governing the particular offense.

Frequently Asked Questions

Did Bordeaux dismiss every charge against the defendants?

No. The court held that specified fish-purchase and fish-sale counts failed to state an offense. It left several other counts for the parties to address on remand.

Does Bordeaux apply to every Oregon wildlife case?

No. The elements of the particular statute or regulation must be examined. The decision may be important in misdemeanor wildlife cases involving a conduct element, but its application will depend on the charge.

Must the prosecution prove that a person knew the wildlife law?

Not simply because ORS 496.992 refers to a culpable mental state. Mankiller held that the penalty statute does not create a separate element requiring knowledge that the conduct violated a wildlife law or regulation.

What is a demurrer?

A demurrer is a motion challenging whether the charging document states a criminal offense on its face. It focuses on the allegations and the applicable law, rather than resolving disputed facts about what happened.

Is criminal negligence always insufficient in a wildlife misdemeanor?

No. Criminal negligence may apply to a result or circumstance element. The problem in Bordeaux was that the state relied on criminal negligence for buying or selling fish, which the court treated as conduct requiring knowledge or intent.

BOTTOM LINE Bordeaux highlights an important distinction in Oregon wildlife cases: the mental state must fit the element of the offense. Criminal negligence may be sufficient for an unlawful circumstance, but knowledge or intent may be required for the conduct that makes the offense criminal.

Charged with an Oregon Wildlife Crime?

Were you cited or charged with an Oregon wildlife misdemeanor or felony? Charges involving hunting, fishing, tagging, licenses, unlawful possession of wildlife, or other wildlife regulations can involve detailed statutes and administrative rules. Contact the wildlife criminal defense attorneys at Gunn & Gunn to learn how we can help review the charge and identify possible defenses.

Authorities discussed: State v. Bordeaux/Bordeaux, 352 Or App 327 (2026); State v. Mankiller, 344 Or App 327, 580 P3d 313 (2025), rev den, 375 Or 155 (2026); State v. Simonov, 358 Or 531, 368 P3d 11 (2016); ORS 161.085; ORS 496.992; ORS 506.991; ORS 508.025.

Written by Marcus A. Gunn, Attorney

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Updated August 25, 2026 by Marcus A. Gunn

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