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Electronically Filed
Supreme Court
SCWC-27897
29-MAY-2012
12:32 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
LLOYD PRATT, Petitioner/Defendant-Appellant.
NO. SCWC-27897
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 27897; CR. NO. HC 04-147)
(ICA NO. 27898; CR. NO. HC 04-169)
(ICA NO. 27899; CR. NO. HC 04-229)
MAY 29, 2012
RECKTENWALD, C.J., NAKAYAMA, AND DUFFY, JJ.,
WITH ACOBA, J., CONCURRING AND DISSENTING,
WITH WHOM MCKENNA, J., JOINS
AMENDED OPINION OF THE COURT BY NAKAYAMA, J.
Article XII § 7 of the Hawai#i Constitution provides:
The State reaffirms and shall protect 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.
Haw. Const. art. XII, § 7. Over the course of several cases,
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this court has interpreted this provision, along with statutory
sources of protections, in order to define the scope of the legal
privilege for native Hawaiians to engage in customary or
traditional native Hawaiian practices when such practices
conflict with State statutes or regulations. The court has
examined the privilege in the civil context, considering the
right to enter private land to gather traditional plants (Kalipi
v. Hawaiian Trust Co., Ltd., 66 Haw. 1, 656 P.2d 745 (1982)), the
right to contest the State’s sale of “ceded” lands (Pele Defense
Fund v. Paty (“PDF”), 73 Haw. 578, 837 P.2d 1247 (1992)), and the
right to participate in county-level Planning Commission hearings
regarding land use (Public Access Shoreline Hawaii v. Hawaii
County Planning Comm’n (“PASH”), 79 Hawai#i 425, 903 P.2d 1246
(1995)). The court has also examined this privilege in the
criminal context. In our most recent case on this topic, State
v. Hanapi, 89 Hawai#i 177, 970 P.2d 485 (1998), we held that a
criminal defendant asserting this privilege as a defense to
criminal charges must satisfy, “at minimum”, the following three-
prong test: (1) the defendant must be “native Hawaiian” according
to the criteria established in PASH1, (2) the claimed right must
be “constitutionally protected as a customary or traditional
native Hawaiian practice,” and (3) the conduct must occur on
1
PASH defines “native Hawaiians” as “descendants of native
Hawaiians who inhabited the islands prior to 1778[.]” PASH, 79 Hawai#i 425,
449, 903 P.2d 1246, 1270 (1995).
2
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undeveloped property. Id. at 185-86, 970 P.2d at 493-94. In
that case, we held that Hanapi had not satisfied this test, so
the court’s analysis stopped there. Id. at 187, 970 P.2d at 495.
Today’s case picks up where Hanapi left off, and
requires the court to articulate the analysis the courts must
undertake when a defendant has made the “minimum” showing from
Hanapi. The defendant in this case, Lloyd Pratt, received three
citations2 when he was found residing in a closed area of Nâ Pali
State Park on the island of Kaua#i. Pratt filed a motion to
dismiss the charges, asserting as a defense that his activities
were constitutionally-protected native Hawaiian practices, and
citing Hanapi. The District Court of the Fifth Circuit (“trial
court”) denied his motion3, held trial, and subsequently found
Pratt guilty on all three charges. Pratt appealed to the
Intermediate Court of Appeals (“ICA”); the ICA affirmed Pratt’s
conviction. State v. Pratt, 124 Hawai#i 329, 243 P.3d 289 (App.
2010). Pratt applied for a writ of certiorari, and we granted
his application to clarify the law surrounding the assertion of
native Hawaiian rights as a defense in criminal cases.4
I. BACKGROUND
2
The three cases (numbers 27897, 27898, and 27899) were
consolidated into one case.
3
The Honorable Frank D. Rothschild presided.
4
Pratt’s application for writ of certiorari presented a second
question regarding the binding effect of a concession on appellate courts.
Because the court is able to decide the case without resolving that question,
the question is not discussed.
3
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Pratt was cited for violating Hawai#i Administrative
Rules (“HAR”) § 13-146-4 on July 14, July 28, and September 28 of
2004, when he was found in a closed area of the Kalalau Valley in
the Nâ Pali Coast State Wilderness Park on Kaua#i. HAR § 13-146-
4, Closing of Areas, states in pertinent part:
The board [of land and natural resources] or its authorized
representative may establish a reasonable schedule of
visiting hours for all or portions of the premises and close
or restrict the public use of all or any portion thereof,
when necessary for the protection of the area or the safety
and welfare of persons or property, by the posting of
appropriate signs indicating the extent and scope of
closure. All persons shall observe and abide by the
officially posted signs designating closed areas and
visiting hours.
HAR § 13-146-4(a) (1999).
A. Trial Proceedings
On September 21, 2005, Pratt filed a motion to dismiss
arguing that the activity for which he received his citations is
constitutionally privileged as a native Hawaiian practice.5 At a
hearing on Pratt’s motion, the defense presented two witnesses:
Pratt, and Dr. Davianna Pomaika#i McGregor, a professor of Ethnic
Studies at the University of Hawai#i, Mânoa. The prosecution
presented one witness: Wayne Souza, the Parks District
Superintendent for Kaua#i for the Department of Land and Natural
Resources.
Pratt testified that he was born in Waimea to parents
from O#ahu and the island of Hawai#i. He presented a family tree
5
In Hanapi, the court explained that “[t]he preferred method for a
defendant to raise a constitutional right in a criminal prosecution is by way
of a motion to dismiss.” Hanapi at 184, 970 P.2d at 492.
4
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and testified that he is 75% native Hawaiian. Pratt named
Kupihea as a family line, though that name does not appear on his
family tree. The defense then presented its Exhibit 4, a book
published by the State of Hawai#i called “An Archaeological
Reconnaissance Survey: Na Pali Coast State Park, Island of
Kaua#i.” The book lists a land grant sold to the Kupihea family
for part of the ahupua#a for the Kalalau Valley. Pratt testified
that this is his family’s land, and that this is where he spends
time in the Park.
Pratt learned huna, which he described as a native
Hawaiian “spiritual living style” from two elders. Pratt is a
kahu, which he translated as a minister, healer, or medicine man.
In addition to healing people, Pratt described his practice of
healing land:
It’s actually putting back into order again. But it was
there by my ancestors because it has mana6 in it. It’s to
clean up the rubbish that is in there, meaning it broke up
the mana that is on the heiaus7 , and especially because my
ancestors are all buried on it. They’re the caretakers to
it.
Pratt testified that he has practiced such healing in the Kalalau
Valley approximately each month for over thirty years, and that
he is responsible for the Kalalau Valley because his ancestors
are buried there.
6
“Mana” means “Supernatural or divine power.” Mary Kawena Pukui &
Samuel H. Elbert, Hawaiian Dictionary 235 (rev. ed. 1986).
7
A “heiau” is defined as “a Pre-Christian place of worship, shrine;
some heiau were elaborately constructed stone platforms, others simple earth
terraces. Many are preserved today.” Pukui & Elbert, Hawaiian Dictionary 64.
5
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Pratt said that he takes offense when people say he
“camps” in Kalalau Valley because he actually lives there. Pratt
testified that he has to spend the night in the valley to fulfill
his responsibilities because hiking in to the valley takes eight
to ten hours, and he needs two days to recuperate from the
difficult hike. The defense offered a photograph as its Exhibit
2, which shows the area where Pratt lived. Pratt explained that
he cleared the area in the picture of trash, brush, and overgrown
java plum trees, an invasive species that prevents native plants
from growing. He planted hasu, watercress, bananas, and twelve
coconut trees. Exhibit 2 shows several tarps, which Pratt said
covered his living area; it also shows a green hose, which Pratt
used to water his plants. Pratt said that he knew of a
government program whereby a private citizen can work with the
DLNR to take care of the parks; he unsuccessfully applied to work
with this program in Kalalau Valley in the early 1990s.
Dr. Davianna Pomaika#i McGregor is a tenured professor
at the University of Hawai#i where she teaches classes on
Hawaiians, land tenure use in Hawai#i, race relations, and
economic change in Hawaii’s people. She has taught the course on
Hawaiians since 1974. Dr. McGregor testified as an expert in the
area of customary and traditional native Hawaiian practices, as
well as the source of protection of native Hawaiian rights.
Through her research, Dr. McGregor has developed a list
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of the following six elements essential to traditional and
customary native Hawaiian practices: (1) the purpose is to
fulfill a responsibility related to subsistence, religious, or
cultural needs of the practitioner’s family; (2) the practitioner
learned the practice from an elder; (3) the practitioner is
connected to the location of practice, either through a family
tradition or because that was the location of the practitioner’s
education; (4) the practitioner has taken responsibility for the
care of the location; (5) the practice is not for a commercial
purpose; and (6) the practice is consistent with custom. In
preparation for her testimony, Dr. McGregor interviewed Pratt and
determined that his daytime activities in Kalalau Valley meet
these requirements of a traditional and customary practice. She
testified that Pratt’s activities are subsistence-related because
he planted food plants, that they are religious because he
performs ceremonies on the heiau, and that they are cultural
because he learned them from the previous generations. Based on
her interview with Pratt, Dr. McGregor believed that Pratt’s
activities satisfied every element of her test: Pratt learned the
practices from elders, his ancestors lived in Kalalau Valley, he
took responsibility for the Valley, his purpose was not
commercial, and his practices were consistent with custom. Dr.
McGregor further opined that Pratt’s residence in the valley is a
traditional practice because it was necessary to fulfill his
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responsibilities to the land. McGregor testified that she
believed these practices to be protected by Hawai#i law.
Mr. Wayne Souza, the Parks District Superintendent for
Kaua#i for the Department of Land and Natural Resources (“DLNR”),
testified for the prosecution. He stated that the purpose of the
park regulations is to limit the number of people permitted in
the park for health and safety reasons, and to protect vulnerable
park resources. Souza testified that controlling the number of
visitors is necessary because the self-composting toilets fail
when too many people visit. The regulations also limit the
number of people who visit in order to keep the area “low
density” to provide a wilderness experience, and to protect plant
and animal life. He testified that the park is home to native
plant communities and native sea birds. Souza also testified
that the State has established a curatorship program to manage
cultural and archaeological resources, like the heiau in Kalalau
Valley. Under the program, a curator works with the DLNR and the
State Historic Preservation Division to manage the sites.
Following the hearing, the parties submitted briefing
on the issue of the native Hawaiian practices defense. In its
brief, the State conceded the following:
In this case, based on Dr. Davianna Pomaikai McGregor’s
testimony, the State does not dispute that the activities
described are traditional and customary Native Hawaiian
practices.
The State argued that, even if Pratt’s conduct is a native
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Hawaiian practice, Pratt’s right to engage in this practice is
subject to the State’s right to regulate. The State maintained
that it is entitled to enforce its regulations restricting
visitation of Kalalau Valley to protect the health and safety of
the public, and to preserve the natural environment. The State
also cited the curatorship program as an effort by the State to
reconcile competing interests in managing the Park.
In his brief, Pratt contended that his motion to
dismiss should be granted because he satisfied the three prongs
of the Hanapi test.8 Alternatively, Pratt argued that, while the
State may regulate even customary and traditional practices, the
State has the burden to prove that the regulation is reasonable
and allows for the practice of native Hawaiian rights to the
extent feasible. Pratt suggested that if the court applies a
balancing test, that test should only permit the State to
regulate if it shows that it would be “infeasible” to permit the
native Hawaiian practice; Pratt argued that because the State has
not made such a showing, the defense stands as a bar to
conviction.
The trial court recognized that there was no dispute
regarding whether Pratt satisfied the three prongs of the Hanapi
test, but determined that further analysis was required. The
trial court noted that the constitutional provision at issue
8
Pratt also briefed a defense under the Federal Religious Freedom
Restoration Act (“RFRA”), but that defense is not before this court.
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explicitly states that the privilege is “subject to the right of
the State to regulate such rights”; therefore the court
determined that when a defendant claims a native Hawaiian
privilege as a defense to criminal charges, the court must
consider the State’s interests in regulating the conduct. The
trial court found that the State has a strong interest in
controlling the Park, and that Pratt could exercise his rights
within the boundaries of the law by obtaining permits to be in
the park or applying to the curatorship program. In sum, the
court found:
that the State has a valid interest in protecting and
preserving this valuable asset [the park], which means,
among other things, controlling the amount of traffic, the
length of stay for any one person, and the types of
activities that are consistent with this stewardship. This
interest when balanced against the rights expounded by Mr.
Pratt weigh in favor of the State.
The trial court denied Pratt’s motion to dismiss, and allowed the
case to proceed to trial.
At trial, the parties stipulated to the essential facts
sufficient to establish that Pratt had violated the Closed Areas
regulation. The stipulation also permitted the trial court to
treat the testimony from the hearing on the motion to dismiss as
the testimony offered at trial. The document states the
following:
The STATE OF HAWAII and Defendant LLYOD [sic] PRATT
stipulate that the following facts are true, accurate and correct.
On July 14, 2004, July 28, 2004 and September 28, 2004,
Lloyd Pratt was camping in Kalawao [sic] State Park.
At each of the times that Lloyd Pratt was camping the
Kalalau State Park location where he was camping was a closed
area[.]
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Prior to each of the times when Lloyd Pratt camping [sic] in
Kalalau State Park signs were posted stating that locations where
Lloyd Pratt was camping was [sic] a closed area.
Immediately prior to each of the times when camping, Lloyd
Pratt, [sic] both saw the signs and had actual knowledge that the
locations in Kalalau State Park where he was camping was [sic] a
closed area.
And that all times relevant, the entirety of Kalalau State
Park was located in the County of Kauai, State of Hawaii.
Additionally, the STATE OF HAWAII and LLYOD [sic] PRATT
stipulate that the testimony contained in the November 4, 2005
transcript of proceedings shall be deemed to have been given at
trial and that any objections and rulings thereon shall be deemed
to have been as set forth in that transcript. This stipulation
shall not constitute a waiver of any of the objections to or
claims of error that either the STATE OF HAWAII or LLYOD [sic]
PRATT may choose assert [sic] with respect to any rulings on
objections or other orders of court as set forth in said
transcript.
In its closing argument the State reiterated its
position that if its regulations are reasonable, then the native
Hawaiian privilege does not exempt anyone from compliance with
those regulations. Pratt presented multiple defenses: he
reiterated his position that he had satisfied the Hanapi test,
and he presented several other defenses, arguing that a
conviction would violate the Federal Religious Freedom
Restoration Act (“RFRA”), the ex post facto clauses of the
federal and state constitutions, the rule of lenity, and stare
decisis.9
The trial court convicted Pratt of violating the Closed
Areas regulation. The trial court’s order included the following
Findings of Fact (“FOF”) and Conclusions of Law (“COL”):
[FOF] 13. Based on the testimony elicited at the November 4
9
Pratt does not pursue the RFRA, ex post facto, or stare decisis
claims in his application for writ of certiorari, thus, this opinion does not
fully articulate these arguments. Pratt’s argument as to the rule of lenity
is reviewed in Section III.B., infra.
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hearing and concessions made by the State in its brief, the
Court finds that Mr. Pratt is [1] a native Hawaiian, [2]
that he carried out customary or traditional native Hawaiian
practices in Kalalau at the time of the camping, and [3]
that this exercise of rights occurred on undeveloped or less
than fully developed land.
[. . .]
[FOF] 16. At trial, the parties stipulated that the
evidence and issues offered at the hearing on the Motion to
Dismiss were deemed to have been introduced at trial.
[. . .]
[COL] 4. The rights of Native Hawaiians to engage in
customary or traditional Native Hawaiian practices, carried
out on land that was undeveloped or less than fully
developed, is not an absolute right, but is a right that
needs to be balanced against the interest of the State of
Hawaii in keeping the Kalalau State Park a wilderness area,
protecting the area for all to enjoy, conserving park
resources and providing for the health and safety of all who
visit the area.
[. . .]
[COL] 6. DLNR Code LNR 13-146-04 is a reasonable
regulation, both on its face and as applied to the
heretofore described activities of Lloyd Pratt.
[. . .]
[COL] 8. The defendant satisfied all three prongs of the
affirmative defense as set forth in State v. Hanapi.
[COL] 9. Case and statutory law all suggest that even with
such a showing (under Hanapi), the Court must “reconcile
competing interests,” or stated another way “accommodate
competing...interests” and only uphold such rights and
privileges “reasonably exercised” and “to the extent
feasible” and “subject to the right of the State to regulate
such rights.” See Article XII, section 7, Hawaii
Constitution; Public Access Shoreline Hawaii v. Hawaii
County Planning Commission, 79 Hawaii 425 (1995).
[COL] 10. The Court must balance the competing interests of
Mr. Pratt’s attempts to exercise certain Hawaiian native
[sic] rights by setting up a residence and [heiau] in the
Kalalau Valley with the State’s interest in keeping this a
wilderness area for all to enjoy and be safe in.
[COL] 11. The Court finds that the State has a valid
interest in protecting and preserving this valuable asset,
which means, among other things, controlling the amount of
traffic, the length of stay for any one person, and the
types of activities that are consistent with this
stewardship. This interest when balanced against the rights
expounded by Mr. Pratt weigh in favor of the State.
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The court sentenced Pratt to 60 hours of community service, and
stayed the sentence pending this appeal.
B. The ICA’s November 18, 2010 Opinion
Pratt appealed his conviction to the ICA. The three
ICA judges produced three separate published opinions. State v.
Pratt, 124 Hawai#i 329, 243 P.3d 289 (App. 2010). Though they
based their opinions on different reasoning, Judges Fujise and
Leonard both concluded that Pratt’s conviction should be
affirmed. Chief Judge Nakamura concurred in part, but dissented
from the portion of the opinion affirming Pratt’s conviction. On
December 17, 2010, the ICA filed its Judgment on Appeal. On
March 15, 2011, Pratt filed a timely application for writ of
certiorari. This court accepted Pratt’s application on April 21,
2011 and heard oral argument on May 19, 2011.
II. STANDARD OF REVIEW
Pratt asserts a constitutional right. “We answer
questions of constitutional law by exercising our own independent
constitutional judgment based on the facts of the case. Thus, we
review questions of constitutional law under the right/wrong
standard.” Hanapi, 89 Hawai#i at 182, 970 P.2d at 490 (quoting
State v. Mallan, 86 Hawai#i 440, 443, 950 P.2d 178, 181 (1998))
(internal quotations marks and citations omitted).
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III. DISCUSSION
A. The Court Will Not Exercise Plain Error Review To Invalidate
The Parties’ Stipulation At Trial.
In this case, as in any criminal case, the burden of
proof falls on the prosecution to prove each element of the crime
for which the defendant is charged. It is only after the
prosecution meets this burden that any offered affirmative
defense becomes relevant. In this case, Pratt stipulated to all
the essential facts necessary to warrant conviction. Therefore,
this court must affirm the judgment below convicting Pratt,
unless Pratt can prove his defense that the privilege for native
Hawaiian practices applies in his case.
The dissent argues that the court should exercise plain
error review to invalidate Pratt’s conviction on grounds not
raised by counsel, namely, that the court may not accept the
stipulation agreed upon by Pratt and the prosecution in this
case. The dissent reasons that because there is no on-the-record
colloquy in which Pratt waives his right to have the prosecution
prove each element of the offense for which he was charged, and
because Pratt and defense counsel contradicted the stipulation on
record, the case must be remanded for a new trial. Dissent at
20-22. The dissent cites as authority State v. Murray, 116
Hawai#i 3, 169 P.3d 955 (2007), a case which had not been decided
at the time of Pratt’s trial.
We respectfully disagree with the dissent’s position
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for several reasons. First, we note that the timing of the
stipulation and Pratt’s testimony indicate that the stipulation
reflected a tactical decision not to dispute whether the
prosecution satisfied its burden to secure conviction. The first
step of Pratt’s defense was to file a motion to dismiss, grounded
in his affirmative defense that his activities in the park were
protected as traditional and customary native Hawaiian practices,
and that such protection precluded conviction. The District
Court held a hearing on Pratt’s motion on November 4, 2005. It
was during this hearing that Pratt testified that he had not seen
any “Closed Area” signs in the park. Following further briefing
on the defense, the court issued an order denying Pratt’s motion
on March 10, 2006, and the case was scheduled for trial. Prior
to trial on April 12, 2006, the parties executed a stipulation to
satisfy the essential facts of the offense, thus narrowing the
issues for trial to Pratt’s several affirmative defenses. Pratt
signed the stipulation, as did defense counsel and the
prosecution.
The dissent would negate the parties’ April 2006
stipulation, in part due to Pratt’s November 2005 testimony that
he did not see any of the posted signs in the park. However, the
subsequent stipulation indicates that, at trial, the defense made
a tactical decision to focus its energy on affirmative defenses,
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rather than disputing the prosecution’s prima facie case.10 The
dissent would also negate the stipulation because the record does
not include any physical evidence of the signs. However, the
absence of evidence to prove an element to which the opposing
party has stipulated is to be expected; having executed the
stipulation, the prosecution did not present its case in chief at
trial.
The dissent cites State v. Murray as authority for
discarding the stipulation. In Murray, the defendant was on
trial for Abuse of a Family or Household Member. 116 Hawai#i at
5, 169 P.3d at 957. More specifically, prosecutors sought
conviction under a subsection of the statute for defendants
convicted of a “third or any subsequent offense that occurs
within two years of a second or subsequent conviction.” Id. In
a motion in limine, defense counsel stipulated to the prior abuse
convictions; this stipulation was read aloud to the jury at
trial. Id. On writ, the court considered whether this
stipulation was in error because it was “made solely by counsel.”
Id. at 6, 169 P.3d at 958. The court concluded that Murray was
entitled to a new trial because his counsel was not permitted to
make this stipulation without Murray’s consent. Id. at 14, 169
10
The dissent cites Briones v. State, 74 Haw. 442, 848 P.2d 699
(1993), for support of its argument that declining to refute the charges can
not be tactical because it did not have an “obvious basis” in benefitting
Pratt. Dissent at 12-13 n.4. Respectfully, this argument takes a myopic view
of Pratt’s case. From the very beginning, Pratt sought to establish a
constitutional privilege to camp or reside in Kalalau Valley without a permit.
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P.3d at 966. For support, the court cited State v. Ibuos, 75
Haw. 118, 121, 857 P.2d 576, 578 (1993) for the proposition that
“A knowing and voluntary waiver [. . .] must come directly from a
defendant, either in writing or orally.” Id. at 10, 169 P.3d at
962 (emphasis added). The court explained the requirement that
the waiver be on the record, reasoning that “[w]ithout such a
record it is difficult to determine whether the defendant
personally waived such a right.” Id. at 12, 169 P.3d at 964.
This main concern informing Murray is not present in
Pratt’s case because Pratt is on the record as personally
admitting to the essential facts supporting conviction. The
record in this case contains a written stipulation, signed by
Pratt himself. With respect, we do not believe that the court
should exercise plain error review to retroactively apply Murray
when the concern addressed by Murray is not a factor. See, e.g.,
State v. Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74 (1993)
(“This court’s power to deal with plain error is one to be
exercised sparingly and with caution. . . .”). Furthermore, the
contradictions on the record from Pratt’s testimony were offered
prior to the stipulation, and the fact that the record does not
contain evidence of the signs is not unexpected, as the
prosecution secured Pratt’s admission before having an
opportunity to present its case in chief. For these reasons, we
disagree with the dissent, and give effect to the parties’
stipulation.
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B. The Courts Below Did Not Err In Utilizing A Balancing Test
Or In Concluding That The Balancing Test In This Case Favors
The State.
The first question presented by Pratt’s application
requires the court to consider whether it was proper for the
trial court and ICA to undertake a balancing test after Pratt
satisfied the three-factor Hanapi test.11 We hold that it was,
as explained below.
1. The Privilege For Native Hawaiian Practices Requires
The Finder Of Fact To Balance Competing Interests.
The privilege afforded for native Hawaiian practices,
as expressed in our State constitution and statute, is not
absolute. The language of the provisions protecting customary
native Hawaiian practices display a textual commitment to
preserving the practices while remaining mindful of competing
interests. For example, the constitutional language protecting
the right to traditional and customary practices is qualified by
the phrase “subject to the right of the State to regulate such
rights.” As a second example, HRS § 7-1, a statute protecting
gathering rights, provides that native Hawaiians may gather
traditional plants, but specifically exempts from protection the
11
Pratt also argues that the rule of lenity precludes conviction.
The rule of lenity is a rule of statutory construction. State v. Shimabukuro,
100 Hawai#i 324, 327, 60 P.3d, 274, 277 (2002) (“Where a criminal statute is
ambiguous, it is to be interpreted according to the rule of lenity.”). Pratt
does not argue that the regulation under which he was convicted is ambiguous,
but rather that the constitutional privilege is ambiguous. Pratt does not
cite, and the court was unable to find, any authority for applying that rule
of statutory interpretation to constitutional affirmative defenses. The court
therefore agrees with the conclusion of the trial court and ICA that the rule
of lenity does not apply in Pratt’s case.
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gathering of these items for commercial purposes.
In our previous cases, this court has interpreted the
constitutional and statutory language as requiring consideration
of the facts and circumstances surrounding the conduct. Chief
Justice Richardson explored this balance in Kalipi v. Hawaiian
Trust Co., Ltd., 66 Haw. 1, 656 P.2d 745 (1982). The plaintiff
in that case, William Kalipi, owned a taro patch in the Manawai
ahupua#a and an adjoining houselot in Ohia ahupua#a, on the island
of Moloka#i. Kalipi, 66 Haw. at 3, 656 P.2d at 747. He lived in
a nearby ahupua#a called Keawenui. Id. For years, Kalipi and
his family had entered Manawai and Ohia to gather ti leaf,
bamboo, kukui nuts, kiawe, medicinal herbs, and ferns. Id. at 4,
656 P.2d at 747. When the Hawaiian Trust Company refused him the
access to which he was accustomed, Kalipi brought suit alleging
that he had a right to enter the property to gather the items as
he wished. Id. Chief Justice Richardson’s opinion acknowledged
the tension between modern concepts of land ownership and native
Hawaiian gathering rights. He explained that “any argument for
the extinguishing of traditional rights based simply upon the
possible inconsistency of purported native rights with our modern
system of land tenure must fail.” Id. at 4, 656 P.2d at 748.
Similarly, the court implicitly recognized that the bare
assertion of this privilege is inadequate to defeat all property
rights. That is, the two conceptions of property must coexist
somehow, and the court saw its task as:
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to conform these traditional rights born of a culture which
knew little of the rigid exclusivity associated with the
private ownership of land, with a modern system of land
tenure in which the right of an owner to exclude is
perceived to be an integral part of fee simple title.
Id. at 7, 656 P.2d at 749. The court in Kalipi “struck” a
“balance” in its interpretation of HRS § 7-1, which at the time
of the Kalipi opinion stated:
Where the landlords have obtained, or may hereafter obtain,
allodial titles to their lands, the people on each of their
lands shall not be deprived of the right to take firewood,
housetimber, aho cord, thatch, or ki leaf, from the land on
which they live, for their own private use, but they shall
not have a right to take such articles to sell for profit.
The people shall also have a right to drinking water, and
running water, and the right of way. The springs of water,
running water, and roads shall be free to all, on all lands
granted in fee simple; provided, that this shall not be
applicable to wells and water-courses, which individuals
have made for their own use.
Id., HRS § 7-1 (1976).12 In construing this statute, the court
articulated two standards: one for developed land, and one for
undeveloped land. Id. at 8, 656 P.2d at 750. The court held
that there is no right to exercise native Hawaiian practices on
developed land because it “would so conflict with understandings
of property, and potentially lead to such disruption, that we
could not consider it anything short of absurd and therefore
other than that which was intended by the statute’s framers.”
Id. at 8-9, 656 P.2d at 750. Second, for undeveloped land, the
court instructed that land use should be determined on a case by
case basis, and that traditional rights “should in each case be
12
The current version of the statute includes two small
modifications: the word “housetimber” is now written as “house-timber,” and
the word “water-courses” is now written as “watercourses.” HRS § 7-1 (2009).
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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. at 10, 656 P.2d at 751 (emphasis
added). In Kalipi’s case, the court did not proceed to the
balancing test because it held that the statutory provisions he
cited did not protect the rights of non-residents of an ahupua#a.
Id. at 9, 12, 656 P.2d at 750, 752.
Kalipi also cited HRS § 1-1 as a source of his right of
entry. At the time of Kalipi’s case, that statute provided:
The common law of England, as ascertained by English and
American decisions, is declared to be the common law of the
State of Hawaii in all cases, except as otherwise expressly
provided by the Constitution or laws of the United States,
or by the laws of the State, or fixed by Hawaiian judicial
precedent, or established by Hawaiian usage. . . .
HRS § 1-1 (1955).13 The court determined that this provision
sought to permit native Hawaiian practices “which did not
unreasonably interfere with the spirit of the common law.” 66
Haw. at 10, 656 P.2d at 751. The court again held that the
practice must be considered on a case by case basis. This court
has since read Kalipi as “merely informing us that the balance of
interests and harms clearly favors a right of exclusion for
private property owners as against persons pursuing
non-traditional practices or exercising otherwise valid customary
rights in an unreasonable manner.” PASH, 79 Hawai#i at 442, 903
P.2d at 1263 (emphasis added).
13
This exact statute remains in effect. HRS § 1-1 (1999).
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Following Kalipi, the next main case to consider native
Hawaiian rights was Pele Defense Fund v. Paty (“PDF”), 73 Haw.
578, 837 P.2d 1247 (1992). In that case, PDF, a non-profit
corporation whose stated purpose is to perpetuate Hawaiian
religion and culture, challenged the constitutionality of a land
transfer in which the State traded public land, including the Wao
Kele #O Puna Natural Area Reserve, in exchange for land that had
been privately held. Id. at 584, 837 P.2d at 1253. PDF
asserted, among other claims, that the transfer violated Article
XII, § 7 of the State constitution because it denied access into
Wao Kele #O Puna for PDF members who wished to exercise their
traditional practices. Id. at 613, 837 P.2d at 1268. In
analyzing this claim, this court first distinguished the
residency requirement holding of Kalipi because Kalipi’s claims
had been based on a claim of ownership, while PDF’s claims were
constitutional and founded in custom. Id. at 618-19, 837 P.2d at
1271. After determining that the constitutional provision at
issue was intended to protect “the broadest possible spectrum of
native rights,” the court held that it may protect rights that
extend beyond the ahupua#a of residence because the purpose of
Article XII, § 7 was to reaffirm “all rights customarily and
traditionally held by ancient Hawaiians.” Id. at 619-20, 837
P.2d at 1271-72 (emphasis in original). The court limited
practices on others’ ahupua#a to situations “where such rights
have been customarily and traditionally exercised in this
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manner.” Id. at 620, 837 P.2d at 1272. The court remanded, and
wrote that in addition to proving that the practice is
traditional and customary, PDF must also show that it meets “the
other requirements of Kalipi.” Id. at 621, 837 P.2d at 1272.
In a subsequent case, PASH, this court identified the
“other requirements” as referring to the requirements that the
land be undeveloped and that the activity cause no actual harm.
PASH, 79 Hawai#i 425, 439-40, 903 P.2d 1246, 1260-61. The
question presented in PASH was whether Public Access Shoreline
Hawai#i, a public interest organization, had standing to
participate in a contested land use case hearing regarding a
proposed development on the island of Hawai#i. Id. at 429, 903
P.2d at 1250. This court held that the group had standing to
participate in such a hearing, and proceeded to articulate the
constitutional analysis for the case on remand. Id. at 435, 903
P.2d at 1256. First, the court noted that the constitutional
protection is not absolute; it only protects the “reasonable”
exercise of native Hawaiian rights. Id. at 442, 903 P.2d at
1263. Then, the court pointed out that the constitution gives
the State the “power to regulate the exercise of customarily and
traditionally exercised Hawaiian rights,” and that the same
provision obligates the State to protect the exercise of those
rights “to the extent feasible.” Id. at 450 n.43, 903 P.2d at
1271 n.43.
A common thread tying all these cases together is an
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attempt to balance the protections afforded to native Hawaiians
in the State, while also considering countervailing interests.
In the criminal context, one countervailing interest of
particular importance, and explicitly stated in the
constitutional provision, is “the right of the State to regulate
such rights.” In the first case examining the native Hawaiian
privilege as a defense to a criminal conviction, State v. Hanapi,
Alapai Hanapi was convicted of trespass after he entered his
neighbor’s land to observe the restoration of the Kihaloko and
Waihilahila fishponds. 89 Hawai#i 177, 178, 970 P.2d 485, 486
(1998). Hanapi argued that his trespass was constitutionally
protected because he went to the property to “perform our
religious and traditional ceremonies of healing the land” and “to
make sure that restoration was done properly.” Id. at 181, 970
P.2d at 489. The court articulated the three-point test, holding
that a criminal defendant asserting this privilege as a defense
to criminal charges must, “at minimum”, prove the following: (1)
the defendant must be “native Hawaiian” according to the criteria
established in PASH14, (2) the claimed right must be
“constitutionally protected as a customary or traditional native
Hawaiian practice,” and (3) the conduct must occur on undeveloped
property. Id. at 185-86, 970 P.2d at 493-94. The court affirmed
14
PASH defines “native Hawaiians” as “descendants of native
Hawaiians who inhabited the islands prior to 1778[.]” PASH, 79 Hawai#i 425,
449, 903 P.2d 1246, 1270 (1995).
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Hanapi’s conviction, holding that Hanapi did not satisfy his
burden to prove that he was engaged in a traditional practice
while on his neighbor’s land. Id. at 187, 970 P.2d at 495.
2. In Balancing Interests, The Court Must Consider The
Totality Of The Circumstances.
All four of the Judges to consider Pratt’s case have
agreed that once a criminal defendant satisfies the three-prong
showing required by Hanapi, there remains a balancing test before
the defendant’s assertion of the native Hawaiian privilege
negates any possible criminal conviction. They have, however,
differed in their views of what factors the test should consider.
The trial court reached the following conclusions of law in its
articulation of the balancing test:
[COL] 9. Case and statutory law all suggest that even with
such a showing (under Hanapi), the Court must “reconcile
competing interests,” or stated another way “accommodate
competing...interests” and only uphold such rights and
privileges “reasonably exercised” and “to the extent
feasible” and “subject to the right of the State to regulate
such rights.” See Article XII, section 7, Hawaii
Constitution; Public Access Shoreline Hawaii v. Hawaii
County Planning Commission, 79 Hawaii 425 (1995).
[COL] 10. The Court must balance the competing interests of
Mr. Pratt’s attempts to exercise certain Hawaiian native
[sic] rights by setting up a residence and [heiau] in the
Kalalau Valley with the State’s interest in keeping this a
wilderness area for all to enjoy and be safe in.
[COL] 11. The Court finds that the State has a valid
interest in protecting and preserving this valuable asset,
which means, among other things, controlling the amount of
traffic, the length of stay for any one person, and the
types of activities that are consistent with this
stewardship. This interest when balanced against the rights
expounded by Mr. Pratt weigh in favor of the State.
Thus, it appears that the trial court considered the defendant’s
stated intention, balanced against the State’s offered
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legislative prerogatives.
At the ICA, Judge Leonard’s opinion concluded that the
balancing test in this case weighed in favor of the State, in
part because there was no evidence that the State’s regulation
was unreasonable. Pratt at 356, 243 P.3d at 316. This
articulation of the balancing test necessarily places a burden of
proof on the defendant to show unreasonableness of the
regulation. Judge Fujise likewise placed the burden of proof on
the defendant, but articulated the test as requiring the
defendant to show the reasonableness of his conduct under the
circumstances. Id. at 357, 243 P.3d at 317. Chief Judge
Nakamura contended that the State carries the burden of proof to
show that the defendant’s conduct resulted in actual harm. Id.
at 363-64, 243 P.3d at 323-24.
We respectfully decline Chief Judge Nakamura’s
articulation of the test, finding the test to be too narrow. The
facts of this case provide apt illustration. The harm against
which the park’s regulation seeks to protect is the harm caused
by too many visitors in Kalalau Valley; by definition, one person
could never cause that harm. But this does not mean that the
government may not seek to protect against overuse. In fact,
user permits are a common and effective government tool in
situations where outlawing the threatening activity is not
necessary, but where the government seeks to control against
overuse of a limited resource.
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We likewise reject the other ICA Judges’ articulations
of the test because of this court’s practice of applying totality
of the circumstances tests, as opposed to legal presumptions, in
the context of native Hawaiian rights. For example, in Kalipi,
the plaintiff asserted that HRS § 1-1 established certain native
Hawaiian customary rights as the law of the State. Kalipi at 9,
656 P.2d at 750. In response, the defendants contended that any
rights that may have been retained had been abrogated by an early
case suggesting that HRS § 7-1 contained an exhaustive list of
native Hawaiian rights, and that all other customary practices
could be freely regulated by the State. Id. Finding the
plaintiff’s contention too broad and the defendants’ too narrow,
this court rejected both views, stating, “[r]ather, we believe
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. at 10, 656 P.2d at 751 (emphasis
added). This court has since interpreted Kalipi as “informing us
that the balance of interests and harms clearly favors a right of
exclusion for private property owners as against persons pursuing
non-traditional practices or exercising otherwise valid customary
rights in an unreasonable manner.” PASH, 79 Hawai#i at 442, 903
P.2d at 1263.
Likewise, in PDF, the court acknowledged the balancing
requirement implicit in the constitutional language, writing that
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the provision both “reaffirm[ed] customarily and traditionally
exercised rights of native Hawaiians, while giving the State the
power to regulate these rights.” PDF at 619, 837 P.2d at 1271
(emphasis added). Then, after determining that non-residence was
not a bar to plaintiffs’ claims of a native Hawaiian right, the
court wrote,
If it can be shown that Wao Kele #O Puna was a traditional
gathering area utilized by the tenants of the abutting
ahupua#a, and that the other requirements of Kalipi are met
in this case, then PDF members such as Ms. Naeole may have a
right to enter the undeveloped areas of the exchanged lands
to exercise their traditional practices.
Id. at 621, 837 P.2d at 1272 (emphasis added). In using the word
“may”—as opposed to “must”—the court left room for the courts to
implement the constitutional language by considering all the
circumstances of the case on remand.
The importance of considering the totality of
circumstances is also reflected in this court’s discussion of
developed and undeveloped lands in Hanapi. There, the court
reiterated PASH’s holding that it is “always ‘inconsistent’ to
permit the practice of traditional and customary native Hawaiian
rights on such [developed] property. In accordance with PASH,
however, we reserve the question as to the status of native
Hawaiian rights on property that is ‘less than fully developed.’”
Hanapi at 187, 970 P.2d at 495 (quoting PASH at 450, 903 P.2d at
1271). The court refused to validate a bright-line test whereby
native Hawaiian practices on undeveloped lands are always
permitted.
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The dissent argues against utilizing a totality of the
circumstances test in this context, in part because “settled
criteria” already exist. Dissent at 30. It further argues that
a totality of the circumstances test is “imprecise” and “invites
consideration of matters beyond the benchmarks.” Dissent at 30.
We disagree with each of these points. First, as explained
above, we read the cases cited in this opinion as underscoring
the importance of the court’s careful judgment in resolving cases
involving traditional and customary native Hawaiian rights; we do
not read them as providing a limited set of “settled criteria” to
evaluate in every case. Second, we do not share the dissent’s
concerns that the court should avoid utilizing a totality of the
circumstances test because it is “imprecise.” Rather, we note
that it is the very flexibility ensured by this test that makes
it appropriate to use in this context. Review of this
jurisdiction’s cases involving native Hawaiian practices shows
how varied the scenarios are in which native Hawaiian rights
arise. Because the constitutional provision at issue applies in
several contexts, and because we cannot anticipate which factors
may be relevant in all contexts, we decline to articulate a test
that could preclude consideration of important factors.
In applying the totality of the circumstances test to
the facts of this case, the balancing of interests weighs in
favor of permitting the park to regulate Pratt’s activity, his
argument of privilege notwithstanding.
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Souza testified that the regulation serves several
important purposes. The DLNR manages the park so “people can
have a wilderness type of experience.” He described the Kalalau
Valley as “one of the most scenic areas,” and noted that it is
“rich in cultural resources,” including native plant communities
and native sea birds. He testified that the DLNR requires
visitors to obtain permits in an effort to limit visitors for
health and safety reasons, and to protect park resources. One
concern is that the self-composting toilets fail when they are
overused, another is that they must keep the area “low density”
to protect the fragile ecosystem.
The record also shows that Pratt has an interest in
going to Kalalau Valley. As the ICA wrote, “Pratt clearly cares
for and feels a spiritual connection to Kalalau and the ancient
Hawaiians that once occupied the valley.” Pratt at 311, 243 P.3d
at 351. Pratt is a kahu; he has studied native Hawaiian
practices and goes to the valley as part of his practice.
However, according to his testimony, his actions in
Kalalau Valley go beyond stewardship. Pratt testified that he
took care of some of the heiau, but also that he established a
residence in Kalalau Valley, and cleared entire areas of the
valley in order to replant them with other species. He undertook
this work without consultation with the DLNR, and without an
effort to comply with the DLNR’s permit requirements. Aside from
an unsuccessful application to work with the DLNR in the 1990s,
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Pratt did not show any attempts to engage in his native Hawaiian
practice within the limits of state law.
In this case, the trial court did not err in
considering all of the facts and circumstances surrounding
Pratt’s activities, and then balancing the parties’ interests.
While Pratt has a strong interest in visiting Kalalau Valley, he
did not attempt to visit in accordance with the laws of the
State. Those laws serve important purposes, including
maintaining the park for public use and preserving the
environment of the park. The outcome of this case should not be
seen as preventing Pratt from going to the Kalalau Valley; Pratt
may go and stay overnight whenever he obtains the proper permit.
He may also apply to the curatorship program to work together
with the DLNR to take care of the heiau in the Kalalau Valley.
The trial court did not err in determining that Pratt’s interest
in conducting his activities without a permit did not outweigh
the State’s interest in limiting the number of visitors to
Kalalau Valley; Pratt’s activities, therefore, do not fall under
constitutional protection.
As always in a criminal case, the prosecution bears the
burden of proving the defendant guilty of the charged offense.
In this case, Pratt admitted to violating the regulation at
issue: he stipulated that he was in a closed area of Kalalau
State Park on the three dates of his citations. Therefore, this
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court must affirm Pratt’s convictions for violating HAR § 13-146-
4.
IV. CONCLUSION
As explained above, we affirm the December 17, 2010
Judgment of the ICA, which affirmed the District Court of the
Fifth Circuit’s June 16, 2006 Judgments convicting Pratt of
violating HAR § 13-146-4.
Daniel G. Hempey for petitioner/ /s/ Mark E. Recktenwald
defendant-appellant
/s/ Paula A. Nakayama
Tracy Murakami and Jake
Delaplane, Deputy /s/ James E. Duffy, Jr.
Prosecuting Attorneys, for
respondent/plaintiff-appellee
David Kimo Frankel and Ashley K.
Obrey of the Native Hawaiian
Legal Corporation for amicus
curiae Native Hawaiian Legal
Corporation
32