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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).

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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.

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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.

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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.

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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




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