Memorandum decisions of this court do not create legal precedent.
MATTHEWS, Senior Justice.
Jarod Hillburn was convicted of felony DUI
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 16.05.871
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,
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.
For the above reasons, the judgment of the superior court is AFFIRMED.