He shall not be moved

Tehama County activist claims constitutional violations

Don Bird told a Tehama County Superior Court Judge he has no intention of paying a $460 fine for fishing without a license.

Don Bird told a Tehama County Superior Court Judge he has no intention of paying a $460 fine for fishing without a license.

Photo By Ken smith

“Well, I was really hoping I’d get arrested,” 78-year-old Don Bird quipped to a chorus of laughter from the pack of a half-dozen similarly aged men following him out of a Tehama County courtroom the morning of Wednesday, Oct. 16. “Now I’m all dressed up and got no place to go.”

“Cozy Diner? Get some coffee?” suggested another man, as a third chimed in, “Maybe we can all get arrested there.”

There was still a fair bit of courtroom drama that morning when Bird, charged with the infraction of fishing without a license, faced Judge Jonathan Skillman.

Bird is a longtime political provocateur from the small community of Rancho Tehama whose campaigns include attempts to place state Sen. Jim Nielsen (who was a state assemblyman at the time) under citizen’s arrest for living outside the district he represents. Bird was cited for fishing without a license on Aug. 14, after casting his line into the Sacramento River below the Red Bluff Diversion Dam.

He contends that the state requirement for a fishing license is unconstitutional, citing Article I, Section 25, of the California Constitution, which states: “The people shall have the right to fish upon and from the public lands of the State and in the waters thereof, excepting upon lands set aside for fish hatcheries, and no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish thereupon …”

Shortly after the citation, the California Department of Fish and Wildlife sent Bird a letter explaining that the constitutional passage also entitles the department to regulate fishing to maintain healthy fisheries, Wildlife Officer Mitch Carlson—who issued Bird’s citation—told the court.

Bird pleaded “innocent” to the fishing charge at a Sept. 23 arraignment and was informed he would be granted a court trial—ruled upon by a judge—rather than a jury trial. Bird said this is a further assault upon his rights, particularly those guaranteed by the Sixth Amendment of the U.S. Constitution. He said this is indicative of a systemic problem in California courts in which people charged with infractions aren’t entitled to a jury trial, a right reserved for those charged with misdemeanors and felonies.

This set the stage for the Oct. 16 proceeding where Bird—who opted, as in past legal confrontations, to represent himself—arrived hoping to shake up the system.

The proceedings began with Carlson’s narrative of the events of Aug. 13, detailing how Bird informed him earlier that he had a constitutional right to fish without a license, and that he wanted to be cited so he could take it to court.

“He told me he would contact me in the future to let me know when he was fishing without a license so I could issue him a citation,” Carlson said. “I informed Bird that this energy would best be spent on something else, because a judge would find him guilty if he decided to fish without a license. I then left the area.”

Carlson encountered Bird in the same spot the next day; the officer said Bird informed him of his intention to be cited, walked to the waterside and, in the officer’s plain sight, cast his line into the water.

When it was his turn to speak in court, Bird said, “I want to file an objection with this court for denying my constitutional right to have a jury trial.”

“Overruled,” Judge Skillman responded without hesitation, explaining that California Penal Code Section 19.6 says that since infractions are not punishable by jail time, the defendant is not entitled to a jury trial. Skillman said the fine would be $460, reduced to $181 if Bird gets a fishing license.

“Will you be getting a license sometime soon?” Skillman asked.

“No, sir.”

“Then the fine is $460. How much time do you need to pay it?”

“I’m not going to pay.”

With that, Skillman warned Bird that non-payment would go to collections, resulting in an additional $300 civil-assessment fee, and the case was concluded. Outside the courtroom, the disappointed-but-still-smiling Bird said, “Well, I guess it’s time for me to go fishing again. I’ll try Glenn County next time.”

Perhaps he won’t have to. In a follow-up phone interview on Monday (Oct. 21), Bird’s ire was again at full boil, and he said he’d just spoken with a Sacramento lawyer who told him his fight may not be at an end, but just beginning.

“The lawyer said there’s a good chance we can have a constitutional case in federal court on this,” he said, adding that he couldn’t go into details yet and has a pending meeting with the unnamed attorney.

“In my opinion, Tehama County violated my rights numerous times on this jury situation,” he said. “After discussing it with this lawyer, I think Mr. Skillman might regret finding me guilty down the road.”