The Hawaii Supreme Court has an opportunity to affirm — or gut — the state’s promise to protect Native Hawaiians.

But based on the line of questioning justices pursued during oral arguments in State v. Pratt on Thursday morning, it seems likely that they’ll limit their decision to a narrower issue of land use regulations.

Lloyd “Ikaika” Pratt was cited three different times in 2004 for being in the Kalalau Valley, part of Kauai’s Na Pali State Park, in violation of state rules. He said that as a Native Hawaiian, he should be exempt from those rules because he had a constitutional right to take up residence as a caretaker.

Civil Beat summarized his case last month in a story titled “Do Native Hawaiians Have The Right To Break Rules?” The justices had questions of their own — and their answers could decide if Native Hawaiians can use their culture as a defense against criminal charges.

But the question that might well decide the case is whether the state’s Department of Land and Natural Resources gave enough evidence to prove that Pratt violated the rule against being in a “closed area” under Section 13-146-4 [pdf] of Hawaii Administrative Rules and whether that rule can be blindly enforced without encroaching on the free exercise of religion.

New Supreme Court Justice Sabrina McKenna repeatedly pointed out that the case is about being in a restricted area of Kauai’s remote Kalalau Valley — not about camping, not about clearing an area, not about planting crops and not about maintaining a heiau. There is a different section of state rules concerning camping without a permit, she said.

“A Native Hawaiian kahu (priest) cannot go to the heiau, correct?” McKenna asked Kauai Deputy Prosecuting Attorney Tracy Murakami, who represented the state Thursday. “Where there is a showing that the law burdens practice of a religious belief, the state must show a compelling or overriding secular reason for not granting an exception to that law.”

Murakami said the case is difficult for the state because the facts in the record aren’t clear and that the specific citation Pratt was issued “doesn’t accurately reflect the DLNR’s regulation of the valley.”

“If it’s not fleshed out in the record, then you lose, right?” Justice Simeon Acoba asked Murakami.

After a brief stumble, the prosecutor said “correct.”

“The activity he was cited for was his mere presence,” Chief Justice Mark Recktenwald summarized. “Does the state concede … that such a blanket prohibition is unsustainable?”

To that, Murakami could only say “yes.”

The justices’ questions — and Murakami’s tepid responses — could mean the court is preparing to throw out Pratt’s citation. If that’s the decision, other similar challenges brought by Native Hawaiians against DLNR would have a major victory to point to. In other words, Pratt could probably head back to Kalalau.

But the precedent of such a decision would be limited, and it would leave the largest questions unaddressed.

Brought up Thursday but not totally fleshed out was a discussion of the Hanapi case, which established a three-prong test for criminal defendants who say they should be protected by the constitutional promise to preserve the Native Hawaiian culture.

Lower courts and appellate judges have disagreed on whether Pratt met all three prongs — being Native Hawaiian, exercising customary and traditional rights and doing so on undeveloped state land. And even if it’s determined that he did satisfy those prongs, the courts disagreed on whether Pratt and other Native Hawaiians have to meet a fourth standard: that their behavior be “reasonable.”

Murakami argued that if the state is required to show “actual harm” for every citation or charge, it could never regulate proactively. She said the burden is on each defendant to prove his or her actions are reasonable.

But Pratt’s attorney, Dan Hempey, argued that Native Hawaiians used the land for generations without causing harm. If a behavior qualifies as a traditional and customary practice, it is by definition “reasonable” and no further balancing test is needed, he said.

He also said that if the court determines any violation of any state law or regulation is presumably unreasonable and requires Hawaiians to prove that they’re not doing harm, that would undermine the constitutional mandate that the host culture be protected.

“This is where the rubber meets the road,” he said.

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