am-6020

akappellateinfo

am-6020

NOTICE

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.

IN THE COURT OF APPEALS OF THE STATE OF ALASKA

JAROD S. HILLBURN,

v.

STATE OF ALASKA,

Appellant,

Appellee.

Court of Appeals No. A-11223

Trial Court No. 3HO-11-277 CR

MEMORANDUM OPINION

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,

1

2

AS 28.35.030(a), (n).

AS 16.05.881, 16.05.896.

– 2 – 6020


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

3 4

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

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).

– 3 – 6020


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

6

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

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.”).

– 4 – 6020


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.

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.

– 5 – 6020

More magazines by this user
Similar magazines