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, 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


– 4 – 6020

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