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State of Hawaii v. Pratt, No. SCWC-27897 (May 11, 2012)

State of Hawaii v. Pratt, No. SCWC-27897 (May 11, 2012)

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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAI
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I---o0o---STATE OF HAWAI
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I, Respondent/Plaintiff-Appellee,vs.LLOYD PRATT, Petitioner/Defendant-Appellant.NO. SCWC-27897CERTIORARI 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 11, 2012RECKTENWALD, C.J., NAKAYAMA, AND DUFFY, JJ.,WITH ACOBA, J., CONCURRING AND DISSENTING,WITH WHOM MCKENNA, J., JOINSOPINION OF THE COURT BY NAKAYAMA, J.Article XII § 7 of the Hawai
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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
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atenants who are descendants of native Hawaiians whoinhabited the Hawaiian Islands prior to 1778, subject to theright of the State to regulate such rights.
Haw. Const. art. XII, § 7. Over the course of several cases,
Electronically FiledSupreme CourtSCWC-2789711-MAY-201210:54 AM
 
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
this court has interpreted this provision, along with statutorysources of protections, in order to define the scope of the legalprivilege for native Hawaiians to engage in customary ortraditional native Hawaiian practices when such practicesconflict with State statutes or regulations. The court hasexamined the privilege in the civil context, considering theright to enter private land to gather traditional plants (Kalipiv. Hawaiian Trust Co., Ltd., 66 Haw. 1, 656 P.2d 745 (1982)), theright to contest the State’s sale of “ceded” lands (Pele DefenseFund v. Paty (“PDF”), 73 Haw. 578, 837 P.2d 1247 (1992)), and theright to participate in county-level Planning Commission hearingsregarding land use (Public Access Shoreline Hawaii v. HawaiiCounty Planning Comm’n (“PASH”), 79 Hawai
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i 425, 903 P.2d 1246(1995)). The court has also examined this privilege in thecriminal context. In our most recent case on this topic, Statev. Hanapi, 89 Hawai
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i 177, 970 P.2d 485 (1998), we held that acriminal defendant asserting this privilege as a defense tocriminal charges must satisfy, “at minimum”, the following three-prong test: (1) the defendant must be “native Hawaiian” accordingto the criteria established in PASH, (2) the claimed right must
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be “constitutionally protected as a customary or traditionalnative Hawaiian practice,” and (3) the conduct must occur on
PASH defines “native Hawaiians” as “descendants of native
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Hawaiians who inhabited the islands prior to 1778[.]” PASH, 79 Hawai
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i 425,449, 903 P.2d 1246, 1270 (1995).
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*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
undeveloped property. Id. at 185-86, 970 P.2d at 493-94. Inthat case, we held that Hanapi had not satisfied this test, sothe court’s analysis stopped there. Id. at 187, 970 P.2d at 495.Today’s case picks up where Hanapi left off, andrequires the court to articulate the analysis the courts mustundertake when a defendant has made the “minimum” showing fromHanapi. The defendant in this case, Lloyd Pratt, received threecitations when he was found residing in a closed area of N
â
Pali
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State Park on the island of Kaua
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i. Pratt filed a motion todismiss the charges, asserting as a defense that his activitieswere constitutionally-protected native Hawaiian practices, andciting Hanapi. The District Court of the Fifth Circuit (“trialcourt”) denied his motion, held trial, and subsequently found
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Pratt guilty on all three charges. Pratt appealed to theIntermediate Court of Appeals (“ICA”); the ICA affirmed Pratt’sconviction. State v. Pratt, 124 Hawai
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i 329, 243 P.3d 289 (App.2010). Pratt applied for a writ of certiorari, and we grantedhis application to clarify the law surrounding the assertion ofnative Hawaiian rights as a defense in criminal cases.
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I. BACKGROUND
The three cases (numbers 27897, 27898, and 27899) were
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consolidated into one case.The Honorable Frank D. Rothschild presided.
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Pratt’s application for writ of certiorari presented a second
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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.
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