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HILLBURN v. STATE, 6020. (2014)

Court: Court of Appeals of Alaska Number: inakco20140205002 Visitors: 7
Filed: Feb. 05, 2014
Latest Update: Feb. 05, 2014
Summary: Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. MEMORANDUM OPINION MATTHEWS, Senior Justice. Jarod Hillburn was convicted of felony DUI 1 and "Damage to Habitat/Riverbed". 2 The conduct underlying the convictions occurred
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Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

MATTHEWS, Senior Justice.

Jarod Hillburn was convicted of felony DUI1 and "Damage to Habitat/Riverbed".2 The conduct underlying the convictions occurred on May 28, 2011, when Hillburn drove his all terrain vehicle (ATV) on the bed of the Anchor River near its mouth, where the river flows into Cook Inlet. Trooper John Probst observed Hillburn's conduct and, believing that the area was a "critical habitat area" in which ATV operation was a crime, made a stop of Hillburn's ATV. Once Probst stopped Hillburn, he noticed that Hillburn showed signs of intoxication. Subsequent tests confirmed Hillburn's intoxication, and he was charged with driving under the influence.

Hillburn moved to suppress the evidence of his intoxication on the ground that the stop was constitutionally prohibited because it was not supported by reasonable suspicion that he had committed a crime. In particular, Hillburn argued that Probst had made a mistake of law in stopping him because the area where he was driving his ATV was not part of the Anchor River and Fritz Creek Critical Habitat Area created by the legislature in AS 16.20.605. It followed, he argued, that he had committed no crime, and therefore the stop which led to the discovery of his intoxication could not have been supported by reasonable suspicion. The State's response was that Hillburn's crime arose out of AS 16.05.871(b), which requires a person to notify the Commissioner of the Department of Fish and Game before using wheeled equipment in the bed of a specified river designated as important for anadromous fish. The State established that the whole of the Anchor River had been so designated in a process independent of the establishment of the Anchor River and Fritz Creek Critical Habitat Area.

After an evidentiary hearing, the trial court agreed with the State and found the stop lawful. The court wrote: "Although the trooper did not cite the correct statute, he knew the defendant was violating the law. Operating a vehicle in an anadromous river violates AS 16.05.871. The stop was lawful."

After a brief trial to the court based on stipulated facts and on the evidence adduced at the evidentiary hearing on the motion to suppress, the defendant was convicted.

He now appeals on the same grounds asserted in the superior court, namely that the location of the stop was not part of the Anchor River and Fritz Creek Critical Habitat Area, so he committed no crime, and there was no reasonable suspicion to support the stop. This argument ignores the grounds for the trial court's decision, which was not that Hillburn was driving his ATV within the statutorily designated "critical habitat area," but that he was driving on the bed of a river which had been designated as "important for ... anadromous fish" under AS 16.05.871. Any use of wheeled equipment in the bed of the river without following the notice procedure prescribed in AS 16.05.8713 is a class A misdemeanor.4 As the trial court noted, the trooper knew that Hillburn's driving on the bed of the river was a crime. It was irrelevant that he might have been confused as to the precise legal structure that made Hillburn's conduct unlawful. The important point is that there was an objectively reasonable basis for the stop.5

Hillburn also claims that a special use permit issued by the Commissioner to the public at large for the Anchor River and Fritz Creek Critical Habitat Area permitted the ATV activity that he engaged in. But for numerous reasons this argument lacks merit. The permit only applies to the Anchor River and Fritz Creek Critical Habitat Area,6 whereas Hillburn's activity took place outside that area. Further, the permit only applies to ATV use on designated trails with exceptions for winter use and for recovery of moose or bear carcasses during hunting season.7 Hillburn did not use his ATV on a designated trail, did not use it in the winter, and his objective was not to recover a moose or bear carcass.

In his reply brief, Hillburn argues that AS 16.05.871 does not apply because "a plain reading" shows that the statute is limited to commercial or construction activities. Since this argument was not raised in Hillburn's opening brief, it is waived.8 Moreover, we see no plain error because the language of section 871(b) is broad enough to encompass noncommercial activities that do not entail construction. While section 871 clearly prohibits commercial and construction activity, it is not necessarily limited to such activity.9

For the above reasons, the judgment of the superior court is AFFIRMED.

FootNotes


* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
1. AS 28.35.030(a), (n).
2. AS 16.05.881, 16.05.896.
3. See 5 Alaska Administrative Code (AAC) 95.011; Alaska Department of Fish and Game, J. Johnson and Paul Blanche, Catalog of Waters Important for Spawning, Rearing, or Migration of Anadromous Fishes — Southcentral Region, Effective June 1, 2010, http://www.adfg.alaska.gov/FedAidpdfs/Sp10-06; and Alaska Department of Fish and Game, J. Johnson and Paul Blanche, Catalog of Waters Important for Spawning, Rearing, or Migration of Anadromous Fishes — Southcentral Region, Effective June 1, 2011, http://www.adfg.alaska.gov/FedAidpdfs/Sp11-06.
4. See AS 16.05.901(a).
5. See Beauvois v. State, 837 P.2d 1118, 1121-22 n.1 (Alaska App. 1992); Wayne R. LaFave, Search and Seizure, § 3.2(f), vol. 2, p. 115-16 (5th ed. 2012) ("Where probable cause exists under a correct interpretation of the substantive criminal law, it is not defeated because of the officer's erroneous views of the substantive criminal law.").
6. Letter from Ginny Litchfield, Kenai Peninsula Area Manager, Alaska Department of Fish and Game, Division of Habitat, to General Public, Special Area Permit 11-V-0006-GP-SA, Anchor River/Fitz Creek Critical Habitat Area — Off-Road Use of Motorized Vehicles (issued Dec. 16, 2010, expired Dec. 31, 2011).
7. Id.
8. See Berezyuk v. State, 282 P.3d 386, 398 (Alaska App. 2012) ("One of the precepts of appellate procedure is that an appellant is not allowed to raise new claims in their reply brief.").
9. AS 16.05.871(b) states: If a person or governmental agency desires to construct a hydraulic project, or use, divert, obstruct, pollute, or change the natural flow or bed of a specified river, lake, or stream, or to use wheeled, tracked, or excavating equipment or log-dragging equipment in the bed of a specified river, lake, or stream, the person or governmental agency shall notify the commissioner of this intention before the beginning of the construction or use.
Source:  Leagle

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