In a 3-2 ruling the Hawaii Supreme Court has upheld the petty misdemeanor conviction of a man who contended that he was entitled as a Native Hawaiian practitioner to live in a closed area of a state park in Kalalau Valley on Kauai.
Lloyd Pratt, 59, a kahu, or Native Hawaiian minister, maintained he was entitled to be in the Na Pali Coast State Wilderness Park as a caretaker for the area, which includes ancient Hawaiian burial sites.
But the high court’s majority in its ruling Friday said judges must balance the interests of a Native Hawaiian practitioner with those of the state.
The majority held that in Pratt’s case his interests did not outweigh the state’s interests in preserving the scenic valley and limiting the number of visitors.
The decision is another in a line of Hawaii Supreme Court rulings dating from the 1980s recognizing the right of Native Hawaiians under the state Constitution to go onto property they don’t own to practice traditional cultural, religious and food gathering activities.
The ruling addressed the extent to which Native Hawaiians’ rights can negate a criminal prosecution.
It was undisputed that Pratt met the standards outlined in a 1998 high court ruling that he must have Hawaiian blood; that he is engaged in customary or traditional Native Hawaiian practices; and that the area is undeveloped property.
But the majority said judges must also consider the "totality of the circumstances" in deciding whether a Native Hawaiian’s interests outweigh the state’s interests in the laws.
In applying that test, the "balancing of interests weighs in favor of permitting the park to regulate Pratt’s activity, his argument of privilege notwithstanding," the majority said.
"While Pratt has a strong interest in visiting Kalalau Valley, he did not attempt to visit in accordance with the laws of the state," the court majority said. "Those laws serve important purposes, including maintaining the park for public use and preserving the environment of the park."
The majority said its ruling does not prevent Pratt from going in the valley, and he may stay overnight by obtaining the proper permit.
Pratt’s activities, the court said, did not "fall under constitutional protection."
The decision upholds Pratt’s three petty misdemeanor convictions of camping in the closed area on three occasions in 2004 and his sentence of performing 60 hours of community service.
Associate Justice Paula Nakayama wrote the 32-page majority opinion. She was joined by Chief Justice Mark Recktenwald and James Duffy.
Pratt’s lawyer Daniel Hempey said his client was "very disappointed."
Hempey said whether the ruling delivers a setback for Native Hawaiians remains to be seen as the judges apply the test in future cases.
But he said he plans to ask the court to reconsider its ruling and send the case back to the trial court to enable Pratt to show that his interests outweigh the state’s.
Hempey said he and Pratt would not only show Pratt didn’t present any harm, but also would put on more evidence of the "good he did for the valley."
Kauai Prosecutor Shaylene Iseri-Carvalho said the laws serve "important purposes."
"We maintain a great respect for Native Hawaiian practices on state lands," Iseri-Carvalho said.
"However, as reaffirmed by the high court, those practices have to comply with the laws that are in place to protect the health, safety and welfare of our lands and all citizens."
Jake Delaplane, Kauai first deputy prosecutor, said the ruling will help judges evaluate whether the traditional practices of Native Hawaiians will absolve them of criminal liability.
David Kimo Frankel, lawyer for the Native Hawaiian Legal Corp., which filed a legal brief in the case, said it wanted the court to rule that the state should shoulder the burden of proving that the state law is justified in prohibiting the traditional practices by Native Hawaiians.
But he said the court at least didn’t place the burden on the practitioners of justifying their actions.
In dissent, Associate Justice Simeon Acoba wrote he would have set aside the convictions and sent the case back for a new trial.
He said there were questions about whether the evidence was sufficient to convict Pratt and whether he waived his right to have the prosecution prove each element of the charges.
Acoba’s 37-page dissent also said he would not require judges to use the "totality of circumstances" test. He said it was "unnecessary and invites consideration of matters beyond (the standards set in the 1998 high court ruling)."
Associate Justice Sabrina McKenna agreed with the dissent.
