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
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAROD S. HILLBURN,
STATE OF ALASKA,
Court of Appeals No. A-11223
Trial Court No. 3HO-11-277 CR
No. 6020 — February 5, 2014
Appeal from the District Court, Third Judicial District, Kenai,
Charles T. Huguelet, Judge.
Appearances: Bryon E. Collins, Bryon E. Collins & Associates,
Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Michael C. Geraghty, Attorney General, Juneau,
for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and
Matthews, Senior Supreme Court Justice. *
MATTHEWS, Senior Justice.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
Jarod Hillburn was convicted of felony DUI 1
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,
AS 28.35.030(a), (n).
AS 16.05.881, 16.05.896.
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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
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 is a class A misdemeanor. 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
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,
See AS 16.05.901(a).
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unlawful. The important point is that there was an objectively reasonable basis for the
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, 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
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.”).
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).
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
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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.
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.
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