The Hawaii Supreme Court has agreed [pdf] to hear a case in which a Native Hawaiian argues he has a constitutional right to take up residence as a caretaker of a remote state park on Kauai.

The case, State v. Pratt, will go a long way toward deciding whether the exercise of customary and traditional Native Hawaiian practices is allowed even when doing so violates state laws or rules.

Lloyd “Ikaika” Pratt was cited three different times in 2004 for camping in the Kalalau Valley, part of Kauai’s Na Pali State Park, in violation of state rules [pdf]. He argued that when he set up a camp, cleared land and planted crops, he was protected by the state’s constitutional promise that Native Hawaiians have the right to practice their culture and religion.

His argument was rejected by the trial court.

The judge agreed Pratt was Native Hawaiian and was exercising customary rights on undeveloped state land after hearing expert testimony from University of Hawaii Ethnic and Hawaiian Studies Professor Davianna McGregor. That was enough to establish that Pratt had satisfied the three-prong test established in State v. Hanapi and Public Access Shoreline
Hawaii v. Hawaii County Planning Commission.

But the judge added another barrier: The traditional practices must be “reasonable” and must be balanced against the state’s rights to protect, preserve and regulate its lands.

Pratt’s practices were not reasonable, the court said, so he was in violation of state rules.

Last November, the Intermediate Court of Appeals rejected Pratt’s appeal and upheld the lower court’s ruling. But the three-judge panel was clearly divided.

Judge Katherine Leonard, whose nomination to be Hawaii Supreme Court Chief Justice was rejected after the Hawaii State Bar Association deemed her unqualified for the post, authored the lead opinion [pdf]. In it, she threw out the findings of fact from the lower court and said Pratt’s practices didn’t qualify as traditional or customary.

“The issue in this case, however, is not simply whether ancient Hawaiians customarily and traditionally cleared land and planted food and medicinal plants for subsistence use,” Leonard wrote. “The issue is more closely akin to whether ancient Hawaiians who resided elsewhere on the island of Kauai customarily and traditionally conducted such activities, without permission, on the land of others in Kalalau Valley.”

Even though she said the balancing test wasn’t necessary, Leonard said the lower court was correct in ruling the state’s right to regulate its land outweighed Pratt’s rights.

In particular, she cited testimony from Department of Land and Natural Resources Kauai District Parks Superintendent Wayne Souza, who said human sewage was a problem in Kalalau Valley because the self­-composting toilets in the valley have experienced failures when too many people use them.

ICA Chief Judge Craig Nakamura disagreed with Leonard — on both major points.

In his concurring and dissenting opinion [pdf], he pointed out that prosecutors had not disputed that Pratt was practicing his traditional and customary rights at trial and didn’t ask the appeals court to review that point. He implied Leonard overreached in inserting her own findings of fact.

As for the balancing test, Nakamura said “the State did not offer any substantial evidence that Pratt’s activities in Kalalau State Park had done any actual harm.” Based on that, he said the balance should have fallen in favor of Pratt and that his convictions should be reversed.

The third judge, Alexa Fujise, agreed with Nakamura that the appeals court shouldn’t change the ruling that the practices were traditional and customary. However, Fujise’s concurring opinion [pdf] sided with Leonard in saying that the balancing test fell in the state’s favor and that the convictions should stand.

The Hawaii Supreme Court on Thursday scheduled oral arguments for Hawaii v. Pratt for Thursday, May 19.

About the Author