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Electronically Filed
Supreme Court
SCWC-29794
28-JAN-2014
10:02 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
SCWC-29794
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
NELSON KUUALOHA ARMITAGE, Petitioner/Defendant-Appellant.
(ICA NO. 29794; CASE NO. 2P106-02017)
SCWC-29795
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
RUSSELL K. KAHOOKELE, Petitioner/Defendant-Appellant.
(ICA NO. 29795; CASE NO. 2P106-02018)
SCWC-29796
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
HENRY MAILE NOA, Petitioner/Defendant-Appellant.
(ICA NO. 29796; CASE NO. 2P106-01909)
SCWC-29794, SCWC-29795 AND SCWC-29796
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
January 28, 2014
ACOBA, McKENNA, AND POLLACK, JJ.; WITH RECKTENWALD, C.J.,
CONCURRING AND DISSENTING, WITH WHOM NAYAKAMA, J., JOINS
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OPINION OF THE COURT BY ACOBA, J.
We hold that the complaints filed by the Respondent/
Plaintiff-Appellee State of Hawai#i (the State) against
Petitioners/Defendants-Appellants Nelson Kuualoha Armitage
(Armitage), Russel Kahookele (Kahookele), and Henry Maile Noa
(Noa) (collectively, Petitioners) of the offense of Entrance into
the Reserve (Kaho#olawe Reserve or the Reserve), Hawai#i
Administrative Rule (HAR) § 13-261-10 (2002)1 must be dismissed
without prejudice because the charges failed to charge the
requisite state of mind of intentionally, knowingly, or
recklessly. See State v. Apollonio, 130 Hawai#i 353, 354, 311
P.3d 676, 677 (2013). Because of the likelihood of retrial, we
1
HAR § 13-261-10 provides:
No person or vessel shall enter or attempt to enter into or
remain within the reserve unless such person or vessel:
(a) Is specifically authorized to do so by the
commission or its authorized representative as
provided in section 13-261-11; or,
(b) Is specifically authorized to do so through a
written agreement approved by the commission; or,
(c) Is trolling in zone B, in compliance with section
13-361-13(b)(3); or,
(d) Must enter the reserve to prevent probable loss of
vessel or human life, provided that:
(1) Prior to entering the reserve
and at reasonable intervals
thereafter, such person shall make
every reasonable effort to notify
the commission staff or the United
States Coast Guard that loss of
vessel or human life is probable;
(2) All fishing gear shall be stowed
immediately upon entering the reserve; and
(3) Such person shall vacate the reserve
immediately after the threat of probable
loss of vessel or human life has passed.
(Emphasis added.) HAR § 13-261-11 (2002) is set forth infra at n.11.
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discuss the questions raised in the September 16, 2013
application for writ of certiorari (Application) filed by
Petitioners, and conclude (1) there was sufficient evidence
adduced at trial to sustain Petitioners’ conviction, (2)
Petitioners did not “reasonably exercise[]” their
constitutionally protected native Hawaiian rights, see State v.
Hanapi, 89 Hawai#i 177, 184, 970 P.2d 485, 493 (1998), (3)
because Petitioners were subject to penal liability pursuant to
HAR § 13-261-10, they have “a claim of specific present objective
harm”, City & Cnty. of Honolulu v. Ariyoshi, 67 Haw. 412, 419,
689 P.2d 757, 765 (1984), and therefore have standing to
challenge the constitutionality of that regulation, (4) Art. XII,
section 7 of the Hawai#i Constitution does not create a separate
right to nation-building, (5) Petitioners’ purpose to claim and
manage, control and subsequently occupy Kaho#olawe involved
conduct outside the scope of any first amendment right to freedom
of speech, (6) HAR §§ 13-261-10 or -11 does not abridge the
constitutional right under the Hawai#i Constitution to engage in
traditional and customary native Hawaiian practices, and (7)
Petitioners’ practice of religion was not substantially burdened
by HAR §§ 13-261-10 and -11. Accordingly, we vacate the July 17,
2013 judgment of the Intermediate Court of Appeals (ICA) and the
April 3, 2009 judgments of the District Court of the Second
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Circuit (the court)2 and remand the case for disposition
consistent with this opinion.
I.
A.
This case arises from three separate complaints filed
by the State against Armitage, Kahookele, and Noa, alleging that,
as noted, each defendant committed the offense of Entrance into
the Reserve, HAR § 13-261-10. The complaint against Armitage and
the complaint against Kahookele were filed on August 22, 2006,
and the complaint against Noa was filed on August 28, 2006. The
complaints stated as follows:
The STATE OF HAWAI#I, through the undersigned, its
Deputy Prosecuting Attorney, hereby accuses and charges the
Defendant as follows:
That on or about the 31st day of July, 2006, in the
Division of Wailuku, County of Maui, State of Hawaii, [the
defendant] did enter or attempt to enter into, or remain
within the Kaho#olawe Island Reserve without being
specifically authorized to do so by the commission or its
authorized representative, thereby committing the offense of
Entrance Into the Reserve, in violation of Section 13-261-10
of the [HAR], Department of Land and Natural Resources.
Petitioners all pled not guilty to the offense.
On October 18, 2006, Petitioners filed a Motion to
Consolidate their cases pursuant to Hawai#i Rules of Penal
Procedure (HRPP) Rule 13 (2006)3. In the Motion to Consolidate,
2
The Honorable Simone C. Polak presided.
3
HRPP Rule 13 provides, in relevant part:
(a) Generally. The court may order consolidation of two or
more charges for trial if the offenses, and the defendants
if there are more than one, could have been joined in a
single charge.
4
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Petitioners noted that the only difference in factual
circumstances among Petitioners was that Noa was on a boat on the
waters of the Kaho#olawe Reserve, while Armitage and Kahookele
were on land in the Reserve. The court held a hearing on the
Motion to Consolidate on October 26, 2006 and granted the Motion
to Consolidate.
B.
On January 9, 2007, Petitioners filed a Motion to
Dismiss pursuant to HRPP Rule 12 (2006)4. In their Memorandum in
Support of the Motion to Dismiss, Petitioners appeared to
challenge the court’s jurisdiction, offer defenses to the charge,
and bring a constitutional challenge to the validity of HAR § 13-
261-10. Among these arguments, Petitioners asked the court to
recognize their Restored Hawaiian Government (also referred to as
the Reinstated Kingdom of Hawai#i or Reinstated Nation of Hawai#i)
as “the sovereign Native Hawaiian entity” pursuant to Hawai#i
4
HRPP Rule 12 provides, in relevant part:
(b) Pretrial motions. Any defense, objection, or request
which is capable of determination without the trial of the
general issue may be raised before trial by Motion. Motions
may be written or oral at the discretion of the judge. The
following must be raised prior to trial;
(1) defenses and objections based on defects in
the institution of the prosecution;
(2) defenses and objections based on defects in
the charge (other than that it fails to show
jurisdiction in the court or to charge an
offense which objections shall be noticed by the
court at any time during the pendency of the
proceedings)[.]
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Revised Statutes (HRS) § 6K-9 (1993)5. Petitioners argued, inter
alia, that the charges should be dismissed because Petitioners
could prove the defense of privilege under Public Access
Shoreline Hawai#i v. Hawai#i County Planning Commission (“PASH”),
79 Hawai#i 425, 903 P.2d 1246 (1995), and Hanapi, and that the
regulations were unconstitutional. As an attachment to the
Motion to Dismiss, Petitioners included a Declaration of Noa,
which stated that he is the “democratically elected Prime
Minister of the Reinstated Hawaiian Nation” and concluded as
follows: “[i]n sum, the Kingdom of Hawaii/Government has
reemerged with a working, sovereign government and demands the
return of all Kingdom assets and the State of Hawai#i immediately
return the island of Kahoolawe to the Kingdom of
Hawaii/Government.”
In its Memorandum in Opposition to the Motion to
Dismiss, filed on July 17, 2007, the State argued, inter alia,
that the court had jurisdiction, Petitioners admitted the
violation, the relevant administrative rules and statutes were
5
HRS § 6K-9 provides:
Upon its return to the State, the resources and waters of
Kaho#olawe shall be held in trust as part of the public land
trust; provided that the State shall transfer management and
control of the island and its waters to the sovereign native
Hawaiian entity upon its recognition by the United States
and the State of Hawai#i.
All terms, conditions, agreements, and laws affecting the
island, including any ongoing obligations relating to the
clean-up of the island and its waters, shall remain in
effect unless expressly terminated.
(Emphasis added.)
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constitutional, and that the court was not the proper forum to
recognize the Reinstated Kingdom of Hawai#i as a sovereign
nation.
Petitioners filed a reply on July 26, 2007, asserting
what they termed the “Lorenzo defense” based on the ICA’s
decision in State v. Lorenzo, 77 Hawai#i 219, 883 P.2d 641 (App.
1994), that future courts would consider evidence and arguments
in support of recognition of the inherent sovereignty of native
Hawaiians. Petitioners also maintained that they are citizens of
a nation rather than a group and that “[t]he fact that there are
other ‘groups’ out there, or that the State is trying to create
its own domestic dependent nation (as opposed to a true-sovereign
nation - the type of nation for which Kahoolawe is held in trust)
is not relevant to [the Lorenzo] defense.”
The court held evidentiary hearings on the Motion to
Dismiss. On July 27, 2007, John Gates (Gates) testified for
Petitioners as an expert in the areas of self-determination of
indigenous people and international law. The hearing was
continued to January 25, 2008. Petitioner Noa testified on his
own behalf regarding his status as “Prime Minister of the
Reinstated Hawaiian Government” and about the underlying
incident, which he stated was undertaken to pursue the
reinstatement of the Kingdom of Hawai#i.
The next hearing took place on April 4, 2008. At the
outset, the court indicated that the parties would give a brief
oral summary of what they believed the evidence had shown and
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provided that the parties were in agreement, they would submit
written arguments as well as proposed findings of fact and
conclusions of law. The court would then make its decision and
if necessary, advise the parties of the trial date and set a
pretrial at which further issues could be addressed. Then,
Petitioner Noa continued his testimony and was cross-examined by
the State.
Petitioners’ attorney indicated that Petitioners “would
treat this hearing as if Mr. [Armitage] and Mr. Kahookele also
testified, and with the exception of their position within their
elected government[6], their testimony would mirror that of Mr.
Noa.” The State agreed. Petitioner’s attorney also stated his
clients were prepared to waive any conflict as to counsel.
The court engaged in a colloquy with Noa, Armitage and
Kahookele, and all three Petitioners agreed to waive any conflict
in representation. At the request of the court, each party then
summarized its arguments on the record.
The parties each submitted proposed findings of fact and
conclusions of law with respect to the Motion to Dismiss. On
October 9, 2008, the court issued its “Findings of Fact
[(findings)], Conclusion of Law [(conclusions)] and Order Denying
Defendants’ Motion to Dismiss.” The relevant findings follow:7
6
For example, Noa testified that he was “Prime Minister of the
Reinstated Hawaiian Government,” while Armitage and Kahookele apparently held
different positions in the Reinstated Hawaiian Government.
7
Many of the findings of fact entered by the court on the Motion to
Dismiss were repeated in the March 10, 2009 Stipulation as to Evidence, which
continue...
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1. On or about July 31, 2006, [] Armitage, Kahookele, and
Noa traveled to Kaho#olawe as elected representatives and
citizens of the Reinstated Kingdom of Hawai#i for purposes of
exercising and proclaiming the Reinstated Kingdom’s property
rights in the Kaho#olawe Island Reserve and its adjacent
waters, to build an ahu[8 ], and to offer prayer on the
island.
. . . .
8. [] Armitage and Kahookele intentionally chose to
ignore and disregard the written application process and
made no attempt to comply with the established procedures to
seek authorization to visit Kaho#olawe.
. . . .
10. [] Noa had knowledge that the Reserve had served as a
bombing range for approximately fifty years. []
11. [Petitioners] assert that the State’s “compelling
interest in restricting access to Kaho#olawe is to protect
citizens from dangers that may still exist on the island from
military activity. [Petitioners] do not challenge this as a
compelling interest - to do so would be unreasonable.”
12. [Petitioners] traveled to the Reserve to claim
Kaho#olawe and to manage and control the island.
. . . .
14. Notwithstanding [Petitioners’] expert testimony, and
even assuming the general accuracy of the expert’s opinion,
Defendants have failed to prove that the Reinstated Nation of
Hawai#i is a sovereign native Hawaiian entity and the [c]ourt
lacks authority to make such a determination.
15. To date, no sovereign native Hawaiian entity has been
recognized by the United States and the State of Hawai#i;
however, there are several native Hawaiian organizations, in
addition to [Petitioners], seeking this recognition.
16. [Petitioners] request this court recognize the
reinstated Nation of Hawai#i as the sovereign native Hawaiian
entity and to “provide guidance as to exactly what need[s] to
be done to achieve Hawaii’s elusive promise of recognition to
the re-emerged Hawaiian nation that was illegally overthrown
in 1893.
17. [Petitioners] ask this [c]ourt to provide them with
standards or guidelines to resolve their attempt to be
recognized by the State and Federal governments as the native
Hawaiian sovereign entity.
18. Upon landing on Kaho#olawe [Petitioners] undertook a
7
...continue
is reproduced in full infra.
8
“Ahu” can be defined as altar or shrine. Mary Kawena Pukui &
Samuel H. Elbert, Hawaiian Dictionary 8 (1986).
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traditional ceremony. “In our traditional practice, in our
culture, it is well understood that when you have an event,
be it a small event, or large event, you always pay respect
to your ancestors, to your various Gods that our religion has
or just to Akua itself.
19. The State elicited testimony that the Island of
Kaho#olawe may be unsafe, due to unexploded [ordnance 9] on the
island. [Petitioners] claimed that the administrative
regulations were not narrowly tailored to meet that State
interest.
20. [Petitioner] Noa, and his expert each testified that
Native Hawaiians traditionally and customarily managed and
controlled the island of Kaho#olawe prior to 1893. []
21. [Petitioners] are Native Hawaiian, within the meaning
set forth in Hawai#i state law.
22. The land on Kaho#olawe is undeveloped.
(Emphases added.)
The court’s conclusions of law stated, in relevant part:
1. HAR § 13-261-3 [(2002)] defines the boundary of the
Reserve as “the entire island of Kaho#olawe and those waters
and submerged lands seaward of the shoreline of Kaho#olawe
island to a distance of approximately two miles.
. . . .
4. [Petitioners] did not submit a written application to
the KIRC; therefore, [Petitioners] violated § 13-261-10 by
failing to obtain the requisite authorization to enter into
or conduct an activity in the Reserve.
5. HAR §§ 13-261-10 or 13-261-11 [(2002) 10] are
9
“Ordnance” is defined as military supplies, including weapons and
ammunition. See Merriam-Webster’s Collegiate Dictionary 819 (10th ed. 1993).
10
HAR § 13-261-11 sets forth the “Procedure for the authorization of
entrance into and activity within the reserve[,]” in relevant part as follows:
(a) Any person required by this chapter to obtain commission
authorization to enter into or conduct activity within the
reserve shall apply for such authorization by making written
application to the commission. The forms for such
application may be obtained from the commission office. The
application shall include:
(1) The applicant’s name, address and telephone
number;
(2) The dates and locations of the requested
entrance;
(3) A description of the purposes of and
activities associated with the entrance;
continue...
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presumptively constitutional; [Petitioners] have made no
showing that either HAR §§ 13-261-10 or 13-261-11 have clear,
manifest, and unmistakable constitutional defects, and they
certainly have failed to prove that the rules are
unconstitutional beyond a reasonable doubt. SHOPO v. Soc. of
Prof. Journalists, 83 Haw. 378, 289, 927 P.2d 386, 397
(1996).
6. Article XII, section 7 of the Hawai#i Constitution
provides: The State reaffirms and protects all rights,
customarily and traditionally exercised for subsistence,
cultural, and religious purposes, and possessed by ahupua#a
tenants who are descendants of native Hawaiians who inhabited
the Hawaiian Islands prior to 1778, subject to the right of
the State to regulate such rights. (Emphasis added.)
7. Native Hawaiians have the right to enter undeveloped
lands owned by others to practice continuously exercised
access and gathering rights necessary for subsistence,
cultural or religious purposes, so long as no actual harm was
done by the practice, and “the retention of Hawaiian
tradition should in each case be determined by balancing the
respective interests and harm once it is established that the
application of the custom has continued in a particular
area.” Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1 at 10,
656 P.2d 745 (1982).
8. “It is the obligation of the person claiming the
exercise of a native Hawaiian right to demonstrate that the
right is protected.” [] Hanapi, 89 Haw[ai#i] at 184, 970 P.2d
[at 492] [].
9. To establish the existence of a traditional or
customary native Hawaiian practice, “there must be an
adequate foundation in the record connecting the claimed
10
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(4) The number and names of persons who will
participate in the requested entrance; and
(5) A safety and logistics plan addressing
transportation to and from the island, and safety
protocols while in the reserve.
(6) A signed liability release waiver
acknowledging and accepting full risk and
responsibility for exposure to all natural and
manmade hazards within the reserve including the
potential presence of and contact with
unexploded ordnance and other hazardous debris.
(7) Information pertinent to the basis of the
applicant’s claim to exercise traditional and
customary rights if such rights are claimed.
(b) Entrance into and activities within the reserve
requested by applicants seeking to exercise traditional and
customary rights and practices compatible with the law,
shall be approved or disapproved by the commission after
review and consultation with cultural practitioners.
(Emphases added.)
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right to a firmly rooted traditional or customary native
Hawaiian practice.” Such foundation includes any
explanation of the history or origin of the claimed right,
description of the ceremonies involved, or specialized
knowledge through expert testimony that the claimed right is
a traditional or customary native Hawaiian practice. Id. at
187.
10. The State is only obligated to “protect the reasonable
exercise of customarily and traditionally exercised right of
Hawaiians to the extent feasible;” “unreasonable or non-
traditional uses are not permitted.” [PASH], 79 Haw. [] at
450, 903 P.2d [at 1271] [].
11. The application process set forth in HAR § 13-261-
11(b) follows the requirements made by the [c]ourt in Hanapi
and includes a process by which an applicant to the Reserve,
through consultation with cultural practitioners, can
establish the existence of [] traditional or customary
native Hawaiian practices.
12. The Historical Note section of HAR § 13-261 states,
“In recognition of the substantial amount of unexploded
ordnance and hazardous materials present on the island and
in the adjacent waters, institutional controls are required
because of the imminent threat to public health and safety
which will continue to exist until the Kaho#olawe island
reserve has been cleared of unexploded ordnance and
hazardous waste. (Emphasis added.)
13. The process defined in HAR § 13-261-11, does not
prohibit people from accessing the Reserve to exercise
native Hawaiian traditional and customary rights; rather, it
enables the KIRC, who has a compelling interest to protect
the health and safety of all those who access the Reserve,
to determine if the exercise of those rights is feasible and
whether it can be done in [a] manner that ensures the safety
of the practitioners.
14. [Petitoners’] purpose to claim and manage control and
subsequently occupy Kaho#olawe involved conduct outside the
scope of any first amendment right to freedom of speech.
State v. Jim, 105 Haw[ai#i] 319, 97 P.3d 295 (2004) [(]
citing Procunier v. Martinez, 416 U.S. 396, 411-12 []
(1974).[)]
15. The government may impose reasonable restrictions on
the time, place, or manner of engaging in protected speech
provided that they are adequately justified without
reference to the content of the regulated speech. City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428
(1993).
16. The application process set forth in HAR § 13-261-11
is clearly content-neutral, as the rule only sets time,
place, or manner restrictions on the access applicants,
without any burdens on speech.
17. [Petitioners] cannot argue that the procedure set
forth in HAR § 13-261-11 prohibited them from exercising
their First Amendment rights, if they never attempted to
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employ the application and approval process.
18. The procedural requirements in HAR § 13-261-11 are
content-neutral, only impose time, place, and manner
restrictions, and apply equally to all who wish to access
the Reserve in order to ensure the health and safety of the
public, and to prevent uses that are dangerous, unlawful, or
impermissible under HRS [Chapter] 6K.
19. [Petitioners] did not prove their deprivation of the
right to free exercise of religion, because their testimony
and evidence failed to establish “that such practice is an
integral part of a religious faith and the prohibition . . .
results in a virtual inhibition of the religion or the
practice of the faith.” [] State v. Blake, 5 Haw. App. 411,
413[, 695 P.2d 336, 338] (1982) [(quoting] People v.
Mullins, 50 Cal. App. 61, 70, 123 Cal. Rptr. 201, 207
(1975)[)] [(emphasis in original)].
. . . .
22. The Apology Resolution [Pub.L.No. 103-150, 107 Stat.
1510, 1510 (1993)] and related State legislation, including
HRS Chapter 6K “gave rise to the State’s fiduciary duty to
preserve the corpus of the public land trust, specifically
ceded lands, until such time as the unrelinquished claims of
the native Hawaiians have been resolved.” Office of
Hawaiian Affairs v. HCDCH, 117 Haw. 174, 177 P.3d 884
(2008).
23. The Apology Resolution acknowledges only that
unrelinquished claims (by Native Hawaiians) exist and
plainly contemplates future reconciliation with the United
States and the state with regard to those claims.” Id.
24. The [s]upreme [c]ourt [of the Territory of Hawai#i] in
Territory v. Kapiolani Estate, refused to recognize a claim
disputing the Territory’s title to ceded lands, and held:
The validity of the declaration in the
constitution of the Republic of Hawai#i, under
which the present title is derived, does not
present a judicial question. Even assuming, but
in no way admitting, that the constitutional
declaration was confiscatory in nature, this
court has no authority to declare it invalid.
The subsequent derivation of the title by the
untied States is clear. The position here taken
in refusing to regard the defendant’s claim that
title is otherwise than is fixed by
constitutional law as presenting a judicial
question is well illustrated in numerous
decisions of the United States Supreme Court.
18 Haw. 640, [] 645-46 (1908) [(emphasis added)].
25. Even assuming, but in no way admitting that the
constitutional declaration was confiscatory in nature, the
court had no authority to declare it invalid. Id.
26. In Territory v. Puahi, the [supreme] [c]ourt [of the
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Territory of Hawai#i] refused to consider a challenge to the
Territory’s title stating, “[A] judicial question is not
presented by a claim requiring a ruling that Art. 95 of the
constitution of the Republic of Hawai#i is
unconstitutional.” 18 Haw. 649, 651 (1908).
27. Congress stated that nothing in the Apology Resolution
would “serve as a settlement of claims against the United
States.” (Apology Resolution, section 3 [at 1514]).
28. The Senate Report accompanying the Apology Resolution
explains that its enactment “will not result in any changes
in existing law.” S.Rep.No. 103-26, at 35, Ex. M. (1993).
29. While the United States expressed its deep regret to
the Native Hawaiian people for the federal government’s
participation in the overthrow of the Kingdom of Hawai#i,
and pledged to support recogniliation efforts, the Apology
resolution did not create any substantive rights. See
also[,] Rice v. Cayetano, 941 F.Supp. 1529, 1546 []n. 24 (D.
Hawai#i 1996), rev’d on other grounds [by] 528 U.S. 495
(2000).
30. An action by this [c]ourt would, in turn, direct
Congress and the State Legislature to recognize the
Reinstated Nation of Hawai#i as the native Hawaiian
sovereign entity, and this [c]ourt cannot act where Congress
and the State Legislature must.
31. “In sum, all of the aforementioned pronouncements
indicate that the issue of native Hawaiian title to the
ceded land will be addressed through the political process.”
OHA v. HCDCH, [] 117 Haw. at 923.
. . . .
33. “‘International law’ takes precedence over state
statutes in only limited circumstances. These circumstances
are not present when the dispute is concerned with domestic
rights and duties.” State v. Marley, 54 Haw. 450, 467-68,
508 P.2d 1095, 1107 (1973).
34. The State of Hawai#i has a legitimate interest in the
conduct of persons within its jurisdiction, and their
conduct is amenable to reasonable state regulation,
regardless of “international law.” [Id.] at 468-69[, 508
P.2d at 1107] [(] citing Skiriotes v. State of Florida, 313
U.S. 69 (1941)[)].
35. “It is the law in this jurisdiction that a proceeding
against property in which the State of Hawai#i has an
interest is a suit against the State and cannot be
maintained without the consent of the State,” so that the
State “and its interest in the land [are] immune from suit.”
A.C. Chock, Ltd. v. Kaneshiro, 51 Haw. 87, 88, 451 P.2d 809,
811 (1969).
36. “If it be made to appear at any stage of the case that
the State claims title, the court’s jurisdiction over the
merits of such claims thereby is ousted under the doctrine
of sovereign immunity.” Marks v. Ah Nee, 48 Haw. 92, 94,
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395 P.2d 620, 622 (1964).
(Emphases added.)
C.
On March 10, 2009, the parties entered a Stipulation as
to Evidence, stating as follows:
1. On or about July 31, 2006, [Petitioners] [Armitage],
[Kahookele], and [Noa] entered the Kaho#olawe island reserve
(“Reserve”) in the County of Maui, State of Hawai#i.
2. [HAR §] 13-261-3 defines the boundary of the Reserve
as “the entire island of Kaho#olawe and those waters and
submerged lands seaward of the shoreline of Kaho#olawe
island to a distance of approximately two miles.”
3. [Petitioners] Armitage, Kahookele, and Noa entered the
waters of the Reserve and landed on the island of Kaho#olawe
in the area of Hakioawa.
4. [Petitioner] Noa was cited by the Department of Land
and Natural Resources (DLNR) Division of Conservation and
Resources Enforcement (DOCARE) Officer Kapahuleha for
Prohibited Entry into the Kaho#olawe Island Reserve in
violation of HAR [§] 13-251-10.
5. [Petitioners] Armitage and Kahookele were placed under
arrest by DLNR DOCARE Officers for Prohibited Entrance into
the Kaho#olawe Island Reserve in violation of HAR [§] 13-
261-10.
6. HAR [§] 13-261-10, reads in relevant part: “No person
or vessel shall enter or attempt to enter into or remain
within the reserve unless such person or vessel: (a) Is
specifically authorized to do so by the commission or its
authorized representatives as provided in section 13-261-11;
or (b) Is specifically authorized to do so though a written
agreement approved by the commission; or (c) Is trolling in
zone B, in compliance with section 13-261-13(b)(3); or (d)
Must enter the reserve to prevent probable loss of vessel or
human life.”
7. [Petitioners] were not specifically authorized by the
commission or its authorized representative to enter into or
remain within the Reserve as provided in section 13-261-11,
which reads in relevant part: “Procedure for the
authorization of entrance into and activity within the
reserve. (a) Any person required by this chapter to obtain
commission authorization to enter into or conduct activity
within the reserve shall apply for such authorization by
making written application to the commission.
8. [Petitioners] did not make a written application to
the commission for the authorization of entrance into and
activity within the Reserve.
9. [Petitioners] were not specifically authorized to
15
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enter into or remain in the Reserve through a written
agreement approved by the commission.
10. [Petitioners] were not trolling in zone B, the waters
of the Reserve that are deeper than thirty fathoms in depth,
and the submerged lands beneath such waters from the point
where the thirty fathoms begins and proceeding out to the
boundary of the Reserve.
11. [Petitioners] did not enter the Reserve to prevent
probable loss of vessel or human life.
. . . .
21. The State and [Petitioners] agree and stipulate, that
all testimony, including expert testimony that was presented
during the hearing on the Motion to Dismiss is fully
incorporated into the trial on this matter, and such
testimony shall be considered to have been taken at trial.
22. The State and [Petitioners] agree and stipulate, that
all exhibits that were admitted into evidence during the
hearing on [Petitioners’] Motion to Dismiss are also
admitted, without objection, into evidence at trial.
23. The State and [Petitioners] request that the [c]ourt
take judicial notice of all filings in [Petitioners’] case.
(Emphases added.) The Stipulation was signed by each Petitioner.
On April 3, 2010, the court held a stipulated facts
trial. At the outset of the trial, the court stated as follows
with respect to the acceptance of the stipulation:
The stipulation itself does not contain an
acknowledgment of the rights that the defendants would be
giving up by the [c]ourt accepting the stipulation, so the
[c]ourt wants to be assured that all defendants knowingly,
willingly, and voluntarily agree that the stipulation, which
has been signed, should be considered by the [c]ourt.
Therefore, the [c]ourt is going to do an advisement on the
record, and it will be -- what I’ll do is I’ll state what
your rights are, and then after each one I’ll ask you. And
I think we have done this the last time, so I think you
folks know how this works.
So, first of all, I do want to advise you that you
have a right to have a trial in this matter. We are set for
trial today. And, as I indicated, the stipulation appears
to sort of alleviate the necessity of a trial. So I want to
be sure that you understand, first, you have a right to have
a trial in this matter. Can I get an agreement from each of
the defendants?
Each Petitioner then stated his name and assented, and the court
proceeded to ask Petitioners, first, “do you understand that at
16
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trial it would be the Government’s burden to prove each of the
elements of the charged offense beyond a reasonable doubt?”, to
which each Petitioner replied “Yes”. Second, the court related
that the stipulation appeared to cover all of the essential
elements of the offense charged, and asked Petitioners if “each
one of you is willing to stipulate, in other words, to agree,
that these facts that are set forth as stipulations, that the
Court shall accept those inclusively without any further witness
testifying.” Each Petitioner independently indicated their
assent. Third, the court asked the Petitioners to “indicate for
the record that you, in fact, have signed the stipulation as to
evidence.” Again, Petitioners each indicated assent.11
The court then engaged in a Tachibana colloquy with
Petitioners. See Tachibana v. State, 79 Hawai#i 226, 900 P.2d
1293 (1995).12 The court noted that Noa had testified at the
earlier hearing, stated that it did not think it needed to redo
the waiver, but wanted to address that issue out of an abundance
11
In State v. Murray, 116 Hawai#i 3, 10, 169 p.3d 955, 962 (2007),
this court held that “[t]he defendant’s right to have each element of an
offense proven beyond a reasonable doubt is a constitutionally and
statutorily[] protected right[,]” and accordingly, a stipulation waiving proof
of an element of the charge must be made knowingly and voluntarily. In light
of this on-the-record colloquy, this case is distinguishable from State v.
Pratt, 127 Hawai#i 206, 277 P.3d 200 (2012), where “the record [was] silent as
to whether [the defendant] understood he had [] a right [to have the
prosecution establish each element of the charged offense beyond a reasonable
doubt] or that [the defendant] waived [that] right.” 127 Hawai#i at 225, 277
P.3d at 319 (Acoba, J., dissenting).
12
The Tachibana colloquy is an “oral exchange . . . in which [the
court] ascertains the defendant’s understanding of the proceedings and of the
defendant’s rights.” State v. Chong Hung Han, 130 Hawai#i 83, 90, 206 P.3d
128, 136 (2013) (emphases omitted) (internal quotation marks and citation
omitted). The Tachibana colloquy is designed to ensure that the defendant is
aware of his or her right to testify and that he or she knowingly and
voluntarily waived that right. Tachibana, 79 Hawai#i at 237, 900 P.2d at
1304.
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of caution.
The State argued that all the elements of the offense
were proven against each Petitioner beyond a reasonable doubt.
In response, defense counsel maintained that Petitioners were not
guilty because they acted as nationals of a sovereign government,
a defense which the State had not disproved beyond a reasonable
doubt. In rebuttal, the State answered that the defense did not
raise a reasonable doubt as to Petitioners’ guilt.
The court found that “the State has proven its case
beyond a reasonable doubt . . . that [Petitioners] ha[d] violated
HAR [§] 13-261-10 by entering the Reserve area without specific
authorization by [the Kaho#olawe Island Reserve Commission (KIRC
or the commission)], and without having had any of the other
reasons . . . which would also be an exception.” The court
further noted that it disbelieved Gates’ testimony and rejected
the sovereign nation defense. Petitioners were found guilty and
the court sentenced each Petitioner, but stayed execution of the
sentences pending appeal.
II.
On April 21, 2009, Petitioners filed a Notice of Appeal
with the ICA. In their Opening Brief, they set forth a number of
arguments, two of which are relevant to the instant
Application.13 They asserted, inter alia, that “the court
13
In addition, Petitioners argued that (1) “the court committed
plain error when it determined it was incompetent to make a determination of
sovereignty and when it thus declined to recognize [Petitioners’] nations’s
inherent sovereignty”; and (2) the court “engaged in improper burden shifting
and committed reversible error when it failed to require the prosecution as
continue...
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applied the wrong standard when it rejected [Petitioners’]
defense that the regulations they are alleged to have violated
are unconstitutional as a prior restraint on Native Hawaiian
rights” and that “the court was in error when it rejected
[Petitioners’] defense of privilege under Pash and Hanapi.”
III.
As noted, the ICA issued its SDO on April 30, 2013.14
State v. Armitage, 129 Hawai#i 425, 301 P.3d 1266, 2013 WL
1829663, at *1 (App. April 30, 2013). In response to
Petitioners’ apparent defense that they were engaging in
establishment of a sovereign native Hawaiian government, the ICA
concluded that this court’s recent decision in State v. Kaulia,
128 Hawai#i 479, 291 P.3d 377 (2013), resolved the issue. Id. at
*2. The ICA noted that, analogous to Kaulia, “[Petitioners]
contend the ‘legitimacy’ of the Reinstated Nation of Hawai#i as
the sovereign native Hawaiian entity renders them ‘exempt from
the application of the State’s laws.” Id. According to the ICA,
individuals claiming to be citizens of an independent sovereign
entity are not exempt from the state’s laws, and therefore the
district court did not err in rejecting Petitioner’s defense
based on their sovereignty claims.
13
...continue
part of its burden of persuasion to prove beyond a reasonable doubt the facts
negativing [Petitioners’] non-affirmative defenses.”
14
The ICA’s SDO was issued by Chief Judge Craig H. Nakamura, Judge
Alexa D.M. Fujise, and Judge Katherine G. Leonard.
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The ICA also concluded that Petitioners’ conduct was
not protected by the privilege for customary and traditional
native Hawaiian practices under article XII, section 7 of the
Hawai#i Constitution. Id. at *3. Applying the balancing test in
Pratt, the ICA explained that, the regulations restricting access
to the Reserve are necessary to protect health and safety, and
that persons seeking access to the Reserve in order to exercise
traditional and customary native Hawaiian rights and practices
may apply with the commission for approval. Id. (citing HAR §
13-261-11). In this case, Petitioners had not attempted to use
the regulatory process, and under these circumstances the ICA
determined that the State was entitled to prosecute Petitioners.
Id.
Finally, the ICA reasoned that the regulations at issue
were constitutional, because they were supported by a compelling
State interest in protecting the public’s health and safety, and
included consideration of requests based on the exercise of
traditional and customary rights and practices. Id. at *4. The
ICA therefore upheld the court’s judgments against Petitioners.
IV.
Petitioners filed their amended Application with this
court on September 16, 2013, asking whether (1) “HAR § 13-261-11
is . . . unconstitutional as a prior restraint on traditional and
customary Native Hawaiian rights and religious rights” and
“whether the regulations were narrowly drawn” even if a
compelling state interest were involved; and (2) whether the ICA
20
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erred “in failing to analyze [HAR] §13-261-11 in light of
fundamental rights, instead deciding this case based on subject
matter jurisdiction[.]” The State did not file a Response.
V.
The sufficiency of the complaints is not raised by
either party.15 However, the complaint failed to adequately
allege that Petitioners violated HAR § 13-261-10 intentionally,
knowingly, or recklessly. Therefore, the complaint must be
dismissed without prejudice. See Apollonio, 130 Hawai#i at 359,
311 P.3d at 682; see also Gonzalez, 128 Hawai#i at 324, 288 P.3d
at 798; State v. Nesmith, 127 Hawai#i 48, 51, 276 P.3d 617, 620
(2012).
A.
The complaints16 charged Petitioners with violating HAR
§ 13-261-10. To reiterate, HAR § 13-261-10 provides that “[n]o
person or vessel shall enter or attempt to enter into or remain
15
Upon this court’s acceptance of certiorari, the parties were asked
to provide supplemental briefing on whether the complaints must be dismissed
without prejudice under Apollonio, 130 Hawai#i at 359, 311 P.3d at 682,
because they did not allege the state of mind required to commit the offense
of Entrance into the Reserve, HAR § 13-261-10.
The State’s Supplemental Brief first conceded that the complaints
did fail to set forth the requisite state of mind for the offense. The State
also conceded that the complaints were deficient because they failed to state
“which ‘reserve’” Petitioners entered, “which commission” was involved, or set
forth the appropriate state of mind for an attempt offense. Based on the
disposition set forth herein, we need not address these additional matters.
Petitioners’ Supplemental Brief also argues that the complaints
failed to charge the requisite state of mind, that therefore, the charges
failed to state an offense and thus must be dismissed with prejudice.
Petitioners further allege, as discussed infra, that the charges should be
dismissed with prejudice because any new charges would be time-barred by the
statute of limitations.
16
To reiterate, the State filed individual complaints against
Armitage, Kahookele, and Noa. Each complaint set forth identical allegations
for the purposes of the discussion infra.
21
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within the reserve unless such person or vessel” is authorized to
do so, or the person or vessel meets one of the other
exceptions.17 HAR § 13-261-10 does not specify the state of mind
required to establish entry into the reserve. Under the Hawai#i
Penal Code, when a penal law does not specify the relevant state
of mind, “that element is established if, with respect thereto, a
person acts intentionally, knowingly, or recklessly,” HRS § 702-
20418, unless the offense is either a violation or an absolute
liability offense. HRS § 702-212.19
First, HAR § 13-261-10 is not a violation. Pursuant to
HRS § 701-107(5) an offense “constitutes a violation if it is so
17
As stated previously, HAR § 13-261-10 also provides exceptions for
persons or vessels who are “trolling in zone B, in compliance with section
13-361-13(b)(3),” and persons or vessels who “[m]ust enter the reserve to
prevent probable loss of vessel or human life[.]”
18
HRS § 702–204 provides in relevant part as follows:
Except as provided in section 702–212, a person is not guilty of
an offense unless the person acted intentionally, knowingly,
recklessly, or negligently, as the law specifies, with respect to
each element of the offense. When the state of mind required to
establish an element of an offense is not specified by the law,
that element is established if, with respect thereto, a person
acts intentionally, knowingly, or recklessly.
(Emphases added.)
19
HRS § 702-212 provides in relevant part as follows
The state of mind requirements prescribed by sections 702–204 and
702–207 through 702–211 do not apply to:
(1) An offense which constitutes a violation, unless the state of
mind requirement involved is included in the definition of the
violation or a legislative purpose to impose such a requirement
plainly appears; or
(2) A crime defined by statute other than this Code, insofar as a
legislative purpose to impose absolute liability for such offense
or with respect to any element thereof plainly appears.
(Emphases added.)
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designated in . . . the law defining the offense or if no other
sentence than a fine, or fine and forfeiture or other civil
penalty, is authorized upon conviction. . . .” However, HRS §
6K-8 provides that “[a]ny person who violates the law or rules
applicable to the island reserve,” including HAR § 13-261-10,
“shall be fined not more that $1,000 or imprisoned not more than
30 days, or both[.]” (Emphasis added.) Additionally, HAR § 13-
261-10 is not specifically designated as a violation.
Moreover, a legislative purpose to impose absolute
liability does not “plainly appear” from either the legislative
history of HAR § 13-261-10. The commentary to HRS § 702-212
“counsels that strict liability ‘should not be discerned lightly
by the courts,’ that HRS § 702–212(2) ‘severely limits the
situations which will allow the imposition of absolute criminal
liability,’ and that ‘strict liability in the penal law is
indefensible in principle if conviction results in the
possibility of imprisonment.’” Gonzalez, 128 Hawai#i at 322, 288
P.3d at 796 (quoting Commentary to HRS § 702–212.). Conviction
of HAR § 13-261-10 results in “the possibility of imprisonment,”
and therefore the imposition of strict liability is “indefensible
in principle.” Id.
Further, a legislative intent to impose strict
liability does not “plainly appear” from the relevant legislative
history. The KIRC’s authority to enact HAR § 13-261-10 is
derived from HRS § 6K-6. The penalties for violations of HAR §
23
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13-261-10 are imposed by HRS § 6K-8. Nothing in the legislative
history of either demonstrates that the legislature intended to
allow the KIRC to enact absolute liability offenses. Hence, HAR
§ 13-261-10 does not impose absolute liability.
B.
Because none of the exceptions in HRS § 702-212 apply,
under HRS § 702-204, the State was required to prove that
individuals who violated HAR § 13-261-10 did so intentionally,
knowingly, or recklessly. The complaints, however, did not
specify that Petitioners act intentionally, knowingly, or
recklessly. Therefore, the complaints did not allege the
requisite state of mind.20
This court “adhere[s] to th[e] core principle” that
“[a] charge that fails to charge a requisite state of mind cannot
be construed reasonably to state an offense and thus the charge
is dismissed without prejudice because it violates due process.”
Apollonio, 130 Hawai#i at 359, 311 P.3d at 682. This principle
applies even if the sufficiency of the charge is not challenged
20
In its supplemental brief, the State concedes that the complaints
were defective because they did not allege the requisite state of mind with
respect to attempt. As recounted by the State, the complaints alleged that
Petitioners “did enter or attempt to enter into” the reserve. (Emphasis
added.) However, to demonstrate that a defendant is guilty of attempt, the
State must demonstrate that, inter alia, the defendant
“intentionally engag[ed] in conduct which . . . constitutes a substantial step
in a course of conduct intended to culminate in the person’s commission of the
crime.” HRS § 705-500(1)(b) (1993) (emphasis added). Because the complaints
did not allege that Petitioners acted intentionally, the complaints did not
allege the required state of mind with respect to attempt. However, it is
noted that based on the stipulated facts, Petitioners did actually enter the
reserve, rather than just attempt to enter the reserve.
24
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before the trial court.21 Id.; see also State v. Elliot, 77
Hawai#i 309, 313, 884 P.3d 372, 276 (1994). Because the
complaints omitted the requisite state of mind, the charges must
be dismissed without prejudice.22 See Apollonio, 130 Hawai#i at
359, 311 P.3d at 682.
C.
Petitioners allege that the complaints should be
dismissed with prejudice because new charges would be time barred
under the relevant statute of limitations. However, the statute
of limitations has been tolled in this case.
A violation of HAR § 13-261-10 is a petty misdemeanor.
HRS § 701-107(4) (Supp. 2005) provides that “[a] crime is a petty
misdemeanor . . . if it is defined by a statute other than this
Code that provides that persons convicted thereof may be
sentenced to imprisonment for a term not to exceed thirty days.”
HAR § 13-261-5 (2002) provides that “(a) any person violating the
rules in [HAR Chapter 261] shall be punished as provided in
21
The complaints in the instant case were filed on August 22, 2006
and August 28, 2006. The articulation of the “core principle” that a charge
must allege the requisite state of mind in Gonzalez and Apollonio was based on
this court’s decision in Nesmith, which was not filed until April 12, 2012.
Petitioners filed their Application on September 16, 2013. Therefore,
Petitioners could not have argued at trial that the complaints violated
Nesmith.
22
In Apollonio, the defendant challenged the sufficiency of the
charge for the first time on appeal. 130 Hawai#i at 358, 311 P.3d at 681. In
contrast, here Petitioners did not challenge the sufficiency of the charge at
all. Nevertheless, the “core principle” announced in Apollonio, that a charge
that does not allege a state of mind does not “alert [] defendants of
precisely what they need[] to defend against to avoid a conviction” and
thereby violates due process, applies. Moreover, the State concedes that the
defects in the charge mandate dismissal without prejudice. Hence, it is
appropriate for this court to dismiss the charge without prejudice based on
the failure to allege a state of mind.
25
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sections 6K-8 and 6K8.5, [HRS].” HRS § 6K-8 (Supp. 1997) states
that “[a]ny person who violates any of the laws or rules
applicable to the island reserve shall be guilty of a petty
misdemeanor and shall be fined not more than $1,000 or imprisoned
not more than thirty days, or both, for each offense.”
The statute of limitations for a petty misdemeanor is
one year. HRS § 701-108(2)(f) (Supp. 2006) (“A prosecution for a
petty misdemeanor or a violation other than a parking violation
must be commenced within one year after it is committed.”) If
this case were dismissed without prejudice, Petitioners maintain
that the prosecution would be unable to re-file the charges,
since more than one year has passed since Petitioners’ 2006 entry
onto the Reserve.
However, HRS § 701-108(6)(b) provides that “The period
of limitation does not run” “[d]uring any time when a prosecution
against the accused for the same conduct is pending in this
State[.]” The Commentary on HRS § 701-108(6) provides that
“Subsection (6) . . . prevents any claim that the statute has run
preventing retrial after reversal on appeal or dismissal for some
reason which would not make retrial a matter of double jeopardy.”
HRS § 701-108(6) thus indicates that the statute of
limitations is tolled whenever “a prosecution against the accused
for the same conduct is pending . . . .” (Emphasis added.) This
would include the period of time during which the prosecution
against Petitioners has been pending in the instant case.
Despite the fact that the charge against Petitioners was
26
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deficient, the prosecution was still “pending.”23 Thus, the
statute of limitations was tolled for the period beginning with
the prosecution’s filing of its Complaint in this action and
ending when the court issues its judgment dismissing the case
without prejudice. It is during this period that the prosecution
can be considered to be “pending.” The incident in this case
took place on July 31, 2006. The prosecution filed the Complaint
on August 22, 2006. The prosecution has been pending since then.
Thus, approximately one month has run on the statute of
limitations. Therefore, the statute of limitations does not bar
the prosecution from re-filing a complaint against Petitioners.24
VI.
The issues raised by the Application have been briefed
and the case will likely be retried on remand. See id. at *5
(noting that this court would reach the defendant’s remaining
arguments, because of the likelihood of retrial on remand); see
also Gonzalez, 128 Hawai#i at 325, 288 P.3d at 799 (same).
Because of the likelihood of retrial, we discuss the arguments
raised.
23
Petitioners maintain that since the charge was deficient, the
prosecution was a “nullity” and therefore, the proceedings against Petitioners
cannot be considered “a prosecution” for purposes of HRS § 701-108(6).
However, despite the deficiency of the charging instrument, the proceedings
can themselves still be considered “a prosecution” against Petitioners. See
Black’s Law Dictionary 1341 (9th ed. 2009) (defining “prosecution” as (1) “The
commencement and carrying out of any action or scheme” and (2) “A criminal
proceeding in which an accused person is tried.”).
24
The cases cited by Petitioner are distinguishable in that they are
both from other jurisdictions and discuss the statue of limitations in civil
cases.
27
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VII.
The KIRC was established pursuant to HRS § 6K-5 (Supp.
2000), with the intent that the KIRC “establish criteria,
policies, and controls for permissible uses within the island
reserve[.]” The rules in Title 13, Chapter 261 of the HAR were
promulgated pursuant to the KIRC’s statutory authority. See HRS
§ 6K-5(9). HRS § 13-261-1(b) (2002) provides that the purpose of
the rules is to “manage, preserve, restore, and protect the
natural and cultural resources of the reserve; to regulate
activities within the reserve; and to protect public health and
safety.” HRS § 13-261-1(b) states that “these rules shall apply
to all persons entering the reserve.” To reiterate, HRS § 13-
261-5 (2002) prescribes the penalties for a violation of Chapter
261, specifically that “[a]ny person violating the rules in this
chapter shall be punished as provided in [HRS] sections 6K-8[25]
and 6K-8.5[26][.]”
25
HRS § 6K-8 is quoted supra.
26
HRS § 6K-8.5 (Supp. 1997) provides, in relevant part, that:
(a) Except as otherwise provided by law, the commission is
authorized to set, charge, and collect administrative fines,
or bring legal action to recover administrative costs of the
commission or the department, or payment for damages, or for
the cost to correct damages resulting from a violation of
chapter 6K or any rule adopted thereunder. The
administrative fines shall be as follows:
(1) For a first violation, by a fine of not more
than $10,000;
(2) For a second violation within five years of
a previous violation, by a fine of not more than
$15,000; and
(3) For a third or subsequent violation within
five years of the last violation, by a fine of
not more than $25,000.
continue...
28
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As noted above, HAR § 13-261-10 sets forth the limits
for entry onto the reserve, only allowing entrance by a person or
vessel under specific, limited circumstances, which include when
a person “[i]s specifically authorized to do so through written
agreement approved by the commission[.]” To reiterate, HAR 13-
261-11 details the process for obtaining approval by application
to the KIRC. It states, inter alia, that “[e]ntrance into and
activities within the reserve requested by applicants seeking to
exercise traditional and customary rights and practices
compatible with the law, shall be approved or disapproved by the
commission after review and consultation with cultural
practitioners[,]” and that “[p]rior to approving or disapproving
any application, the commission shall determine whether the
entrance and activities proposed by the application conform to
the allowable activities described in § 13-261-13.” HAR § 13-
261-11(c) and (f).
VIII.
Petitioners’ arguments in its Application appear to be
somewhat inconsistent with the questions presented. However, in
the interest of fully considering the legal issues presented by
this case, and giving due weight to the “argument” portion of
Petitioners’ Application, their arguments are construed in the
manner following.
26
...continue
(Emphasis added.)
29
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The first question would be whether the ICA erred when
it held that HAR §§ 13-261-10 and -1127 were constitutional.
This question consists of three sub-issues, based on each of the
constitutional rights Petitioners allege were infringed by the
regulations, (1) the right to form an indigenous nation, (2) the
right to engage in traditional and customary practices, and (3)
the right to practice religion.
The second question would be whether the ICA improperly
rested its holding on subject matter jurisdiction rather than
analyzing Petitioners’ “privilege” defense to penal liability,
specifically that Petitioners were engaging in traditional and
customary practices and therefore were not subject to liability
under HAR § 13-261-10.28
IX.
For analytical purposes, this second question,
regarding Petitioner’s “privilege” defense is addressed first,
inasmuch as it resolves whether Petitioners should have been
subject to penal liability under HAR § 13-261-10 in the first
place. See City and Cnty. of Honolulu v. Sherman, 110 Hawai#i
39, 56 n.7, 129 P.3d 542, 559 n.7 (2006) (“A fundamental and
27
In their first question presented, quoted supra, Petitioners only
challenge the constitutionality of HAR § 13-261-11. However, Petitioners
arguments on this point appear to address the constitutionality of HAR § 13-
261-10, which incorporates HAR § 13-261-11 by reference. Thus, the
constitutionality of both regulations, operating together, is addressed.
28
In their second question presented, quoted supra, Petitioners ask
whether the ICA failed to analyze HAR § 13-261-11 in light of fundamental
rights, instead of deciding the case based on subject matter jurisdiction.
This question overlaps with their first question, but the arguments section of
Petitioners’ Application raises different points, which appear related to the
“privilege” defense.
30
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longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in the advance of
deciding them.” (internal quotation marks and citation omitted)).
A.
First, it is clear that there was sufficient evidence
adduced at trial to sustain Petitioners’ conviction. “‘[T]he
test on appeal in reviewing the legal sufficiency of the evidence
is whether, when viewing the evidence in the light most favorable
to the prosecution, substantial evidence exists to support the
conclusion of the trier of fact.’” State v. Agard, 113 Hawai#i
321, 324, 151 P.3d 802, 805 (2007) (quoting State v. Bui, 104
Hawai#i 462, 467, 92 P.3d 471, 476 (2004)) (other citation
omitted).
The elements of the offense in the instant case are (1)
entering or attempting to enter into or remain, (2) within the
Reserve, (3) without authorization as enumerated in HAR § 13-261-
10(a)-(d). See HAR § 13-261-10. Since the state of mind for
this petty misdemeanor is not established in the regulation, each
element is established if the defendant acts intentionally,
knowingly, or recklessly. See discussion, supra. As explained
supra, Petitioners stipulated that (1) they entered the reserve,
(2) they were not specifically authorized to enter into or remain
on the reserve, (3) they did not make a written application for
authorization to the commission (HAR § 13-261-10(b)), (4) they
were not trolling in zone B (HAR § 13-261-10(c)), and (5) they
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did not enter the reserve to prevent probable loss of vessel or
human life (HAR § 13-261-10(d)).
All of these elements were established with the
requisite intent of intentionally or knowingly, as evidenced by
the court’s finding no. 1, stating that Petitioners traveled to
the Reserve “for purposes of exercising and proclaiming the
Reinstated Kingdom’s property rights in the Kaho#olawe Island
Reserve and its adjacent waters[,]” and finding no. 8, that
Petitioners “intentionally chose to ignore and disregard the
written application process . . . .” Thus, via stipulation, the
prosecution established each element of the offense beyond a
reasonable doubt. Petitioners’ defense that the privilege for
native Hawaiian practices applies in this case may be considered
in this context.
B.
As noted, the right to engage in traditional and
customary Native Hawaiian practices is recognized under the
Hawai#i Constitution art. XII, section 7. Pursuant to Hanapi,
this court established a three-part test for “a defendant to
establish that his or her conduct is constitutionally protected
as a native Hawaiian right.” 89 Hawai#i at 185-86, 970 P.2d at
493-94. First, the defendant must qualify as a ‘native Hawaiian’
within the guidelines set out in PASH. Id. at 185, 970 P.2d at
494. Second, the defendant “must establish that his or her
claimed right is constitutionally protected as a native Hawaiian
practice.” Id. Third, the defendant “must also prove that the
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exercise of the right occurred on undeveloped or ‘less than fully
developed property.’” Id.
The court’s findings nos. 21 and 22, which are
unchallenged by the parties, show that Petitioners satisfied the
first requirement and the third requirement. As to the second
requirement, it is not clear whether managing and controlling
Kaho#olawe is a customary and traditional native Hawaiian
practice within the meaning of the Hawai#i Constitution, or that
the religious practices Petitioners discuss in their testimony
satisfy this standard. However, assuming, arguendo, that these
activities do constitute constitutionally protected practices,
Petitioners have satisfied the Hanapi test.
Under the “privilege defense,” a balancing test is then
applied to determine whether Petitioners’ assertion of the native
Hawaiian privilege will negate the conviction. Pratt, 127
Hawai#i at 216, 277 P.3d at 310. It must be determined whether
Petitioners’ conduct was reasonable, by balancing the State’s
interests in regulating Petitioners’ activity with Petitioners’
interest in visiting Kaho#olawe. See Pratt, 127 Hawai#i at 218,
277 P.3d at 312.
At the hearing on the Motion to Dismiss, the State
explained that HAR chapter 261 relating to the Kaho#olawe Island
Reserve “is in effect and enforced because of the threat to
public health and safety that the Island and the waters of
Kaho#olawe possess.” It quoted that portion of the historical
note to HAR chapter 13-261, which states that “institutional
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controls are required because of the imminent threat to public
health and safety which will continue to exist until the
Kaho#olawe Island Reserve has been cleared of unexploded ordnance
and hazardous waste.” Next, the State articulated that it
“take[s] all access participants very seriously when they go to
the Island because of all of the health and safety concerns that
are still present on the Island and its surrounding waters.”
Thus, the record indicates that HAR § 13-261-10 is intended to
limit the exposure of individuals to potential safety hazards in
the Reserve.
On the other hand, Petitioners testified that they
visited Kaho#olawe with the purpose of reestablishing the
Reinstated Hawaiian Government. They testified as follows:
Q. And . . . the right you went there to exercise, am I
correct, that that was the right to claim the -- you were
only at that point on that exercise claiming the limited
right to claim management and control of Kaho#olawe?
A. That’s correct. And, of course, I felt even stronger
than that, you know. I believe that that also -- that we
extended that exercise believing that we are going to
initiate now the claims, you know, to Kaho#olawe.
(Emphases added.)
Again assuming, arguendo, that Petitioners can
establish that they were engaging in a traditional and customary
native Hawaiian practice, their interest must be balanced against
the State’s interest to determine whether Petitioners are subject
to penal liability in the instant case. In Pratt, after setting
forth the interests of each party, the majority noted that
“[w]hile Pratt has a strong interest in visiting [the restricted
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area], he did not attempt to visit in accordance with the laws of
the State.” 127 Hawai#i at 218, 277 P.3d at 312.
In this case, Petitioners similarly made no attempt to
avail themselves of the applicable procedures to obtain lawful
entry into the Reserve. Here, the regulations established a
clear method for lawful entry onto the Reserve and Petitioners
made no showing that they would have been denied entry had they
applied under HAR § 13-261-11. Under these circumstances,
Petitioners did not “reasonably exercise[]” their
constitutionally protected native Hawaiian rights, see Hanapi, 89
Hawai#i at 184, 970 P.2d at 493, because they did not apply for
authorization from the commission. Therefore, the balance weighs
in favor of the State’s interest in protecting the health and
safety of those individuals who travel to Kaho#olawe.
Petitioners’ activities then do not fall within a haven
protecting them from criminal liability.
C.
As part of this point of error, Petitioners also allege
that the ICA incorrectly deemed their argument to be about
whether the court had jurisdiction. Petitioners are correct that
the ICA did consider whether the court had subject matter
jurisdiction. Armitage, 2013 WL 1829663, at *2. However, the
ICA additionally considered Petitioners’ assertion of the
privilege defense in Section II.B. of its SDO. Id. at *3. Thus,
Petitioners cannot successfully argue that the ICA based its
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decision solely on subject matter jurisdiction rather than on the
privilege defense.
X.
Next, Petitioners’ point of error alleging
constitutional claims is addressed. Specifically, Petitioners
challenge the constitutionality of the regulations in HAR chapter
13-261.
The preliminary issue is whether Petitioners have
standing to challenge the constitutionality of the HAR chapter
13-261 regulations. Although not explicitly argued by the
parties, this court must consider the issue of standing sua
sponte, because “‘[a] plaintiff without standing is not entitled
to invoke a court’s jurisdiction.’” Sierra Club v. Hawai#i
Tourism Authority ex rel. Bd. of Directors, 100 Hawai#i 242, 59
P.3d 877 (2002) (quoting Mottl v. Miyahira, 95 Hawai#i 381, 388,
23 P.3d 716, 723 (2001)) (other citation omitted).
Because Petitioners were subject to penal liability
pursuant to HAR § 13-261-10, they have “a claim of specific
present objective harm”, Ariyoshi, 67 Haw. at 419, 689 P.2d at
765, and therefore have standing to challenge the
constitutionality of that regulation. This much is clear. On
the other hand, Petitioners stipulated at trial that they “did
not make a written application to the commission for the
authorization of entrance into and activity within the reserve.”
This stipulation establishes that Petitioners did not attempt to
follow the procedures set forth in HAR § 13-261-11 to obtain
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lawful entry into the Reserve; Petitioners thus may not have
standing to argue that HAR § 13-261-11 is unconstitutional.
The general rule is that “[w]here restraints imposed
act directly on an individual or entity and a claim of specific
present objective harm is presented, standing to challenge the
constitutionality of an ordinance or statute exists.” State v.
Bloss, 64 Haw. 148, 151, 637 P.2d 1117, 1121 (1981), cert.
denied, 459 U.S. 824 (1982) (citing Bigelow v. Virginia, 421 U.S.
809 (1975)) (other citation omitted). This standing requirement
is termed the “rule against vicarious assertion of constitutional
rights.” Tauese v. State, Dep’t of Labor & Indus. Relations, 113
Hawai#i 1, 28, 147 P.3d 785, 812 (2006). “One must show that as
applied to him the statute is constitutionally invalid.”
Ariyoshi, 67 Haw. at 419, 689 P.2d at 765 (citing State v.
Marley, 54 Haw. 450, 509 P.2d 1095 (1973)). Thus, for example, a
criminal defendant cannot challenge the constitutionality of one
subsection of a statute where he was charged under a different
subsection. State v. O’Brien, 5 Haw. App. 491, 494, 704 P.2d
905, 909, aff’d, 68 Haw. 38, 704 P.2d 883 (1985).
To the extent that Petitioners challenge HAR § 13-261-
11 as unconstitutional, Petitioners would lack standing to do so,
inasmuch as they never followed the prescribed procedures, and
thus were not subject to HAR § 13-216-11. Since they never
attempted to use the application procedure, they cannot claim
that the specifics of the application procedures under HAR § 13-
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216-11, including review by a “cultural practitioner,” HAR § 13-
216-11(f), are unconstitutional as applied to them.
However, there is an exception for bringing
constitutional challenges in the First Amendment area, pursuant
to the overbreadth doctrine. See Tauese, 113 Hawai#i at 28, 147
P.3d at 812. That doctrine allows a party whose own rights are
not violated to challenge the constitutionality of an ordinance
upon showing that it abridges the protected speech of persons not
before the court. State v. Bloss, 64 Haw. 148, 151 n.6, 637 P.2d
1117, 1121 n.6 (1981). Although Petitioners assert First
Amendment rights, specifically, the right to practice their
religion, as explained infra, their actions do not constitute
“protected speech.” Therefore, this exception is not available
to Petitioners to challenge to the constitutionality of HAR § 13-
216-11.
Petitioners constitutional arguments are therefore
limited to the constitutionality of HAR § 13-216-10, because they
cannot demonstrate a “specific present objective harm” based on
HAR § 13-261-11. Had Petitioners attempted to follow the
application process, then they would have had standing to
challenge the constitutionality of HAR § 13-261-11. However,
those are not the facts presented by this case. Thus,
Petitioner’s challenge is limited to HAR § 13-261-10.
Nevertheless, the process set forth in HAR § 13-261-11 will be
addressed where necessarily implicated in the analysis that
follows.
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XI.
As to the merits of their constitutional claims, to
reiterate, Petitioners apparently argue that HAR § 13-261-10, the
regulation they were charged with violating, is unconstitutional
for three reasons. To repeat, they maintain that HAR § 13-261-10
abridged their fundamental rights to (1) form an indigenous
nation; (2) engage in traditional and customary practices; and
(3) practice their religion. According to Petitioners, their
right to enter the Reserve to exercise fundamental rights cannot
“constitutionally be subject to an undefined review by undefined
cultural practitioners[.]”
“‘[T]his court reviews questions of constitutional law
de novo, under the “right/wrong” standard, and thus, exercises
its own independent constitutional judgment based on the facts of
the case.’” Kaho#ohanohano v. State, 114 Hawai#i 302, 339, 162
P.3d 696, 733 (2007) (quoting In re Guardianship of Carlsmith,
113 Hawai#i 236, 239, 151 P.3d 717, 720 (2007) (other citation
omitted)). Furthermore, this court has “long recognized that the
Hawai#i Constitution must be construed with due regard to the
intent of the framers and the people adopting it, and the
fundamental principle in interpreting a constitutional principle
is to give effect to that intent.’” Id. (quoting Save Sunset
Beach Coal. v. City & Cnty. of Honolulu, 102 Hawai#i 465, 474, 78
P.3d 1, 10 (2003) (other citation omitted)).
A.
First, Petitioners allege that their right to form an
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indigenous nation was abridged. Petitioners maintain that the
right of the Native Hawaiian people to reestablish an autonomous
sovereign government is a fundamental right. While the Hawai#i
State Legislature has in the past recognized the potential for a
sovereign native Hawaiian government to be recognized, see,
e.g., 1994 Haw. Sess. Laws Act 200, § 1 at 47929, Petitioners
fail to establish that the right to form a sovereign native
Hawaiian nation is a “fundamental right.”
In their Application, Petitioners rely on Gates’
testimony that the process of building an indigenous native
Hawaiian Nation is constitutionally protected under Article XII,
section 7 of the Hawai#i Constitution. However, Article XII
offers protection for “all rights, customarily and traditionally
exercised for subsistence, cultural and religious purposes . . .
.” This constitutional provision has never been extended beyond
rights deemed to have been “customarily and traditionally”
practiced by native Hawaiians. Art. XII, section 7 does not
create a separate, additional right to nation-building, as
Petitioners appear to contend.
29
Act 200, section 1 provided, in part, that:
SECTION 1. Findings. The legislature through Act 359,
Session Laws of Hawai#i 1993, recognized the unique status
that the native Hawaiian people bear to the State of Hawai#i
and to the United States. The Hawaiian sovereignty advisory
commission was established to seek counsel from the native
Hawaiian people on how to facilitate the efforts to be
governed by an indigenous sovereign nation of their own
choosing.
1994 Haw. Sess. Laws Act 200, § 1 at 479 (emphasis added).
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Moreover, Petitioners’ theory of nation-building as a
fundamental right under the ICA’s decision in Lorenzo does not
appear viable. Lorenzo held that, for jurisdictional purposes,
should a defendant demonstrate a factual or legal basis that the
Kingdom of Hawai#i “exists as a state in accordance with
recognized attributes of a state’s sovereign nature[,]” and that
he or she is a citizen of that sovereign state, a defendant may
be able to argue that the courts of the State of Hawai#i lack
jurisdiction over him or her. 77 Hawai#i at 221, 883 P.2d at
644. Thus, Lorenzo does not recognize a fundamental right to
build a sovereign Hawaiian nation. Further, it does not set
forth the process for the creation of a sovereign Hawaiian
nation, but only indicates that this State’s courts would be
amenable to an argument that they lack jurisdiction over certain
individuals subject to a new sovereign nation, in the event that
such a sovereign nation was recognized by the United States
government and internationally. See id.
Finally, Petitioners fail to establish that 1993 U.S.
Public Law 103 (the “Apology Resolution”) created a “fundamental
right.” Petitioners do not cite to the text of the Apology
Resolution or any other references in support of their assertion.
In 1993, Congress adopted the Apology Resolution to acknowledge
and “express its deep regret” for the United States’ active role
in the illegal overthrow of the Hawaiian monarchy in the late
nineteenth century, while disclaiming that the resolution was
“intended to serve as a settlement of any claims against the
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United States.” P.L. 103-150, 107 Stat. 1510 (1993). In Office
of Hawaiian Affairs v. HCDCH, 117 Hawai#i 174, 177 P.3d 884
(2008), this court held that the Apology Bill gave rise to the
State’s fiduciary duty to preserve ceded lands in trust, until
such time as the unrelinquished claims of the native Hawaiians
were resolved. 117 Hawai#i at 195, 177 P.3d at 905. The U.S.
Supreme Court reversed this court, holding that the Apology
Resolution did not confer substantive rights or have a
substantive legal effect. Hawai#i v. Office of Hawaiian Affairs,
556 U.S. 163, 164 (2009). Thus, the Apology Bill cannot serve to
support a fundamental right to nation-building, as Petitioners
allege.
B.
An alternative construction of Petitioners’ alleged
sovereign nation-building right would be to construe it within
the constitutional right to freedom of speech. Although
Petitioners do not explicitly state that this is a freedom of
speech claim, they cite to numerous cases where freedom of speech
was at issue, including making arguments related to “prior
restraints” and “[s]ymbolic expression.”
On this issue, the court properly decided in conclusion
no. 14 that Petitioners’ “purpose to claim and manage, control
and subsequently occupy Kaho#olawe involved conduct outside the
scope of any first amendment right to freedom of speech.”
(Emphasis added.) In this case, Petitioners adduced evidence on
their Motion to Dismiss that managing and controlling Kaho#olawe
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was an important part of exercising their sovereignty, and that
they sought recognition as the sovereign native Hawaiian entity.
However, Petitioners’ actions do not necessarily amount to
“speech”.
Several Hawai#i cases support this conclusion. In
State v. Jim, 105 Hawai#i 319, 97 P.3d 395 (App. 2004), for
example, the defendant claimed that his physical presence
preventing county water supply workers from investigating an
illegal water line was a protest. 105 Hawai#i at 326, 97 P.3d at
402. The ICA held that the defendant’s conduct, physically
obstructing lawful work, did not constitute speech for which
first amendment protections were available. Id. at 334, 97 P.3d
at 410.
In Kleinjans v. Lombardi, 52 Haw. 427, 478 P.2d 320
(1970), this court considered the propriety of an injunction
prohibiting certain forms of student demonstrations, specifically
occupation of the university chancellor’s office. 52 Haw. at
428, 478 P.2d at 322. Kleinjans held that by occupying the
university office, the defendants were engaged in conduct that
did not constitute speech because, “[t]heir protest did not take
the form of a public rally but instead involved the occupation of
the private office of a university official. There could not be
any good faith claim that this area was open to the public for
the purpose of expressing dissident ideas.” Id. at 433, 478 P.2d
at 324.
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Similarly, here, Petitioners cannot claim that the
Reserve was an area “open to the public for expression of ideas.”
Id. Thus, although to some extent Petitioners apparently
intended to communicate through their presence on Kaho#olawe, it
cannot be deemed “speech” for purposes of the First Amendment
freedom of speech protections. See United States v. O’Brien, 391
U.S. 367, 376 (1968) (“We cannot accept the view that an
apparently limitless variety of conduct can be labeled ‘speech’
whenever the person engaging in the conduct intends thereby to
express an idea.”). Therefore, Petitioners’ claim that the
regulations unconstitutionally abridged their right to establish
a sovereign nation is incorrect.
XII.
Second, Petitioners argue abridgment of their
constitutional right under the Hawai#i Constitution to engage in
traditional and customary native Hawaiian practices. This right
is unique to this State, and therefore an alleged abridgment of
this right is analyzed under Hawai#i’s jurisprudence. See, e.g.,
Ka Pa#akai O Ka#Aina v. Land Use Comm’n, 94 Hawai#i 31, 7 P.3d
1068, 1083 (2000) (“‘[T]he State is obligated to protect the
reasonable exercise of customarily and traditionally exercised
rights of Hawaiians to the extent feasible.’”) (emphasis omitted)
(quoting PASH, 79 Hawai#i at 450 n.43, 903 P.2d at 1271 n.43).
This court has constructed the right to engage in
traditional and customary native Hawaiian practices as “an
attempt on the part of the framers of [HRS § 1-1] to avoid
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results inappropriate to the isles’ inhabitants by permitting the
continuance of native understandings and practices which did not
unreasonably interfere with the spirit of the common law.”
Kalipi v. Hawaiian Trust Co., 66 Haw. 1, 10, 656 P.2d 745, 751
(1982). Kalipi further stated that “the retention of a Hawaiian
tradition should in each case be determined by balancing the
respective interests and harm once it is established that the
application of the custom has continued in a particular area.”
Id. Accordingly, in Ka Pa#akai O Ka#Aina, it was held that the
State and its agencies “may not act without independently
considering the effect of their actions on Hawaiian traditions
and practices.” 94 Hawai#i at 46, 7 P.3d at 1083.
In this case, the KIRC did consider the effect of its
actions on Hawaiian traditions and practices when it promulgated
HAR §§ 13-261-10 and -11. This consideration is apparent in the
exception in HAR §§ 13-261-10 and -11 specifically mentioning
“[e]ntrance into and activities within the reserve requested by
applicants seeking to exercise traditional and customary rights
and practices compatible with the law[.]” HAR § 13-261-11.
Further, as discussed supra, with respect to Petitioners’
“privilege defense,” the State’s interest as balanced against the
potential harm to Petitioners’ ability to engage in native
Hawaiian traditional and customary practices weighs in favor of
the State. As a result, Petitioners cannot claim that HAR §§ 13-
261-10 or -11 is unconstitutional on this basis.
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XIII.
Third, Petitioners state that their right to practice
religion was infringed by the subject regulations. This argument
may be analyzed under the framework of the free exercise clause.
See U.S. Const. amend. I (“Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof[.]”); Haw. Const. art. I, § 4 (“No law shall be enacted
respecting an establishment of religion, or prohibiting the free
exercise thereof[.]”).
A.
In State v. Sunderland, 115 Hawai#i 396, 168 P.3d 526
(2007), this court discussed at length challenges to laws on the
grounds that they violate the constitutional right to free
exercise of religion. 115 Hawai#i at 401-404, 168 P.3d at 531-
534. It was concluded that, in accordance with the U.S. Supreme
Court’s decision in Employment Div., Dept. of Human Resources of
Oregon v. Smith, 494 U.S. 872 (1990), “a generally applicable law
is not subject to First Amendment attack unless (1) it interferes
with ‘the Free Exercise Clause in conjunction with other
constitutional protections,’ or (2) it creates a mechanism that
calls for ‘individualized governmental assessment of the reasons
for the relevant conduct[]’ (i.e., individualized exemptions).”
Sunderland, 115 Hawai#i at 404, 168 P.3d at 534 (emphases added)
(quoting Smith, 494 U.S. at 884). Sunderland held that the
criminal statute making it an offense to knowingly possess
marijuana, HRS § 712-1249 (1993), was generally applicable, and
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therefore, following Smith, was not subject to a First Amendment
attack. Id.
In this case, although HAR § 13-261-10 initially seems
like a “generally applicable law”, similar to the generally
applicable criminal statute that was at issue in Sunderland, the
regulation also appears to “create[] a mechanism that calls for
individualized government assessment of the reasons for the
relevant conduct,” id. (internal quotation marks and citations
omitted), through its reference to HAR § 13-261-11. To
reiterate, HAR § 13-261-10(a) states that entrance to the reserve
is not permitted unless “specifically authorized” and that the
process for that authorization is set forth in HAR § 13-261-11.
Although, as noted, Petitioners lack standing to directly
challenge the constitutionality of HAR § 13-261-11, the language
from Sunderland states that Smith will apply unless the law
“creates” a mechanism for individualized assessment. Id.
(emphasis added). A mechanism is “created” via HAR § 13-261-11
for the KIRC to individually assess whether to allow a person or
group to enter the Reserve.
Where there is an individualized assessment, as in this
case, then the U.S. Supreme Court’s test set forth in Sherbert v.
Verner, 374 U.S. 398 (1963), is applicable. See Smith, 494 U.S.
at 884 (“The Sherbert test . . . was developed in a context that
lent itself to individualized government assessment of the
reasons for the relevant conduct.”). Under the Sherbert test, if
a particular law imposes a burden upon the free exercise of
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religion, judicial scrutiny is triggered, the regulation must be
justified with a compelling government interest, and the
government has the burden of demonstrating “that no alternative
forms of regulation would combat such abuses without infringing
First Amendment rights.” Id. at 404-407.
To the extent that Petitioners and the State argue that
various other presumptions should apply with respect to
determining the constitutionality of the regulation, it is noted
that under the circumstances presented by this case, the Sherbert
test is consistent with the general proposition advanced by
Petitioners, and articulated in Child Support Enforcement Agency,
quoted supra. That proposition is that the presumption of
statutory constitutionality does not apply to laws that classify
on the basis of suspect categories or impinge on fundamental
rights expressly or impliedly granted by the constitution. Child
Support Enforcement Agency, 109 Hawai#i at 246, 125 P.3d at 467
(citation omitted). “Such laws are presumed to be
unconstitutional unless the state shows compelling state
interests which justify such classifications, and that the laws
are narrowly drawn to avoid unnecessary abridgments of
constitutional rights.” Id. (emphasis in original) (citing Baehr
v. Lewin, 74 Haw. 530, 571-72, 852 P.2d 44, 63-64 (1993)) (other
citations omitted). This description of the constitutional
strict scrutiny test is consistent with the test applied by the
U.S. Supreme Court in Sherbert. See Sherbert, 374 U.S. at 404-
407.
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B.
In applying the strict scrutiny analysis, the first
question is whether HAR § 13-261-10 burdened the free exercise of
religion. On this point, the court concluded that Petitioners
“did not prove their deprivation of a right to free exercise of
religion, because their testimony and evidence failed to
establish ‘that such practice is an integral part of a religious
faith and that the prohibition . . . results in a virtual
inhibition of the religion or the practice of the faith.”
(Emphasis in original.) (Quoting Blake, 5 Haw. App. at 417, 695
P.2d at 340 (citation omitted).)
It is initially observed that this standard from Blake
cited in the court’s conclusions is not applicable to determining
whether HAR § 13-261-10 burdened Petitioners’ exercise of
religion. Specifically, Petitioners need not show that the
regulation resulted in “a virtual inhibition of the religion or
practice of the faith.” Blake, 5 Haw. App. at 417, 695 P.2d at
340. In Blake, the ICA adopted this standard from a California
Court of Appeal case, People v. Mullins, 123 Cal.Rptr. 201
(1975), which considered the constitutionality of a generally
applicable regulation. The Mullins court interpreted the first
step in the Sherbert test to require two separate determinations
-- first, whether “the statute imposes any burden upon the free
exercise of the religion whose religious beliefs the defendant
asserts he embraces and [second,] whether the defendant actually
engaged in good faith in that religion.” 123 Cal.Rptr. at 207.
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Mullins went on to state that “we note, here, that where it is
claimed that the use of a narcotic, drug or an hallucinogen which
the state proscribes is a religious practice, it must be
established that such practice is an integral part of a religious
faith and that the prohibition of the narcotic, drug, or
hallucinogen results in a virtual inhibition of the religion or
practice of the faith.” Id. (emphases added). Thus, the
“integral part” and “virtual inhibition of the religion or
practice of the faith” requirements were limited to cases where
the use of a regulated or prohibited narcotic, drug or
hallucinogen was at issue. See id. Blake properly applied these
requirements because in Blake, the defendant claimed that the use
of marijuana was a religious practice. 5 Haw. App. at 417, 695
P.2d 336. However, in this case, there is no claim of a use of a
narcotic, drug, or hallucinogen, and thus the standards from
Blake cited by the court in its conclusion no. 19 are not
applicable.
Instead, this court has held that “‘it [is] necessary
to examine whether or not the activity interfered with by the
state was motivated and rooted in a legitimate and sincerely held
religious belief [and] whether or not the parties’ free exercise
of religion had been burdened by the regulation[.]’” Dedman v.
Bd. of Land & Natural Res., 69 Haw. 255, 260, 740 P.2d 28, 32
(1987) (quoting State ex rel. Minami v. Andrews, 65 Haw. 289,
291, 651 P.2d 473, 474 (1982)). In this case, the legitimacy of
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Petitioners’ religious belief need not be addressed.30
Similarly, it may be assumed that Petitioners’ activity was
rooted in a legitimate and sincerely held belief. However, it
appears that Petitioners cannot show that their free exercise of
religion was burdened by HAR § 13-261-10. Despite Petitioners’
argument in their brief that they traveled to Kaho#olawe “to
allow representatives of the Reinstated Hawaiian Government to
build a heiau and perform a prayer on the site,” among other
things, the record does not support a conclusion that
Petitioners’ exercise of religion was burdened by the limitations
imposed by the government on travel to Kaho#olawe.
First, a review of the record suggests that Petitioners
engaged in religious practices as part of their purpose of
managing and controlling Kaho#olawe and/or establishing a native
Hawaiian sovereign entity, but that such practices did not have
to take place on Kaho#olawe as part of the practice of their
religion. Noa testified that Petitioners had planned to
undertake a religious ceremony on Kaho#olawe in connection with
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With respect to his religion, Noa testified as follows:
[Counsel for Petitioners]: Do you also practice a
religion?
[Noa]: You know, that’s an interesting point, yeah,
religion. And in Hawai#i, I think if you recognize our
Constitutions in the Kingdom, it basically said that every
man, person, could practice his own religion. Okay. So as
far as Hawai#i having, I guess you could say a central
religion, yeah, I think that it evolved through the
constitutions. And I thought that was quite amenable on
behalf of our monarchs to make that happen in Hawai#i.
Because prior to that there was definitely a religion that
was practiced in Hawai#i, and it was called the Kaku system.
And that in itself was religious practice.
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their presence on the Reserve, as follows:
[Noa]: And we went [to Kaho#olawe], again,
understanding that our intent is to be recognized, yeah, who
we are as a people, as a nation, to exercise our right as a
nation.
[Counsel for Petitioners]: Okay. And that --
the right you went there to exercise, am I correct,
that that was the right to claim the -- you were only
at that point on that exercise claiming the limited
right to claim management and control of Kaho#olawe?
[Noa]: That’s correct. And, of course, I felt even
stronger than that, you know. I believe that that also --
that we extended that exercise believing that we are going
to initiate now the claims, you know, to Kaho#olawe.
[Counsel for Petitioners]: Right.
And when you got there, did you undertake any sort of
a religious endeavor or ceremony?
[Noa]: In our traditional practice, in our
culture, it is -- it is well understood that when you have
an event, be it a small event or a large event, you always
pay respect, okay, to your ancestors, to your various Gods
that our religion has, or even just to Akua itself.
So when we -- before we left, we already had a plan
that we would institute protocol. And a part of protocol is
to ask, yeah, our ancestors to welcome us to the islands,
and we do that through prayer. And that’s what we did when
we arrived, okay. And a part of our -- a part of our
traditional protocol in our case, because we are a nation
that’s coming into being, we had already decided that we
would build an ahu to signify our arrival, our arrival, our
accomplishment.
[Counsel for Petitioners]: And, for the record, what
is an “ahu”?
[Noa]: An “ahu” is an altar. Okay. You can have
personal ahus, you can have community ahus, and you can have
national ahus. Okay. Some of the national ahus are
referred to as hales.
But, this is, like I said, a sacred place. This is
where you reveal your sincerity, you invoke support from
your ama kuas, from your ancestors. This is where you come
to give thanksgiving to provide ho#okupu.
[Counsel for Petitioners]: And was there, among
either just you or collectively, was there a religious
calling to do this when you got there, or --
[Noa]: Most definitely. I mean, it’s a part of
us. You know, when you lose an identity, you lose a nation,
you lose who you are. So to maintain that, you have only
the spirit, you know. You can look at me physically, but if
I don’t have a country, hell, I believe -- excuse my
language, I believe that -- I’m not here. Spiritually I’m
here, but physically I have to be reconnected back to my
country. Who am I? I am a Hawaiian. I’m a Kanaka maoli,
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Native Hawaiian, and today I cannot claim that. You know,
so I have to design, you have to build our nation so that we
can fix that problem. It’s a problem that we live with. I
don’t care who you are as a Kanaka, you have that problem,
and that is you cannot claim sovereignty in your own country
until you fulfill that obligation. And, I mean, I believe
we have Kanakas sitting right here in this courtroom who
truly believe that we will never acquire independence.
You know, that’s something that I live with, I
understand, but they need to respect what we believe in, and
that’s what we do.
[Counsel for Petitioners]: Now, I want to get back
to this ceremony for a moment, the religious ceremony on the
island.
You have talked about our religion, and to -- in your
knowledge and understanding, was that a -- I think you
mentioned a traditional and customary religious ceremony?
[Noa]: You know, it is a customary practice,
okay.
[Counsel for Petitioners]: Okay. And prior to
1893, do you believe that was practiced on the Island of
Kaho#olawe?
[Noa]: Most certainly.
[Counsel for Petitioners]: That type of ceremony?
[Noa]: Definitely. There are ahus set on the
island. Personally I have not seen those, but I have been
shown myself. I’ve been shown photographs. They even have
-- Kaho#olawe also represents, this is -- forgive me for not
remembering, but there is a point on Kaho#olawe that all the
navigators, yeah, that sail in the Pacific from Hawai#i go
back to the Pacific will go to Kaho#olawe and they will
arrive. Kealaikahiki is a channel, and there is point on
Kaho#olawe, and that point is a heiau, it has an ahu that
was built centuries ago, and that’s for our sailing
purposes, our navigators, you know. They would go there and
offer up their ho#okupus, their services, so they would
receive protection, the strength that they would need. And
the island has many, many altars.
. . . .
[Counsel for Petitioners]: When you went to
Kaho#olawe, did you go there as an individual with the
intention of breaking some state regulation, or did you go
there primarily for the purposes that you’ve testified to
today?
[Noa]: No. We went there primarily for the
purposes that I speak about today, that once we fulfilled
our obligation as a nation, I truly believe that it is now
the nation’s responsibility to exercise, you know, that
sovereign powers.
(Emphases added.)
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While the foregoing testimony may establish that
Petitioners were engaging in customary and traditional practices
on the island, including religious practices, the testimony
indicates that the practices were in connection with Petitioners’
sovereign nation-building activity. For example, Noa testified
that “when you have an event” you undertake certain activities,
and that “as part of our protocol” “because we are a nation
that’s coming into being, we had already decided that we would
build an ahu to signify our arrival.” (Emphasis added.) Noa
further testified that there are many altars on Kaho#olawe, but
he did not testify that Petitioners needed to go to Kaho#olawe
because of these altars or any other religiously significant
areas.
Second, even if Petitioners had to travel to Kaho#olawe
in order to practice their religion, it does not appear that
government regulations HAR §§ 13-261-10 and -11, requiring a
written application process to go to the island, created a
substantial burden on Petitioners’ practice of religion. See
Adler, 108 Hawai#i at 177, 118 P.3d at 660 (“Appellants must show
a ‘substantial burden’ on religious interests.”) (citation
omitted); see also Sherbert, 274 U.S. at 406 (“We must next
consider whether some compelling state interest . . . justifies
the substantial infringement of appellants First Amendment
right.”). HAR § 13-261-11 provides that written application
forms may be obtained from the commission office, and the written
application requires fairly standard information, including,
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inter alia, the number and names of individuals who will
participate in the requested entrance, a signed liability waiver,
description of the purposes and activities associated with the
entrance, and information pertinent to the exercise of
traditional and customary rights, if such rights are claimed.
See HAR 13-261-11(a). Such a process cannot be said to
“substantially burden” the exercise of religion. While “‘[t]he
door of the Free Exercise Clause stands tightly closed against
any governmental regulation of religious beliefs as such []’”,
Koolau Baptist Church v. Dep’t of Labor & Indus. Relations, 68
Haw. 410, 718 P.2d 267 (1986) (quoting Sherbert, 374 U.S. at 402
(emphasis in original)), “‘the freedom to act, even when the
action is in accord with one’s religious convictions, is not
totally free from legislative restrictions[,]’” id. (quoting
Braunfeld v. Brown, 366 U.S. 599, 603 (1961).
C.
Having concluded that Petitioners practice of religion
was not substantially burdened by HAR §§ 13-261-10 and -11, the
remainder of the Sherbert test need not be applied. Therefore,
there is no need to determine if the regulations are justified
with a compelling state interest or whether the regulations are
narrowly tailored to satisfy that interest. Accordingly, under
these circumstances, the regulations under HAR §§ 13-261-10 and
-11 do not unconstitutionally burden Petitioners’ right to
practice their religion.
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XIV.
Based on the foregoing, the July 17, 2013 judgment of
the ICA and the April 3, 2009 judgments of the court as to
Armitage, Kahookele, and Noa are vacated, and the case is remanded
to the court for disposition consistent with this opinion.
Daniel G. Hempey, /s/ Simeon R. Acoba, Jr.
for petitioners
/s/ Sabrina S. McKenna
Renee Ishikawa Delizo
(on the briefs), /s/ Richard W. Pollack
for respondent
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