The Hawaii Supreme Court has affirmed that a Native Hawaiian practitioner violated state park rules by setting up residence in a closed area of Kalalau Valley, despite his defense that he had a constitutional right to live there as a caretaker.

Lloyd “Ikaika” Pratt had been cited three different times in 2004 for being in the valley in violation of state rules. He argued that his activities in Kauai’s Na Pali Coast State Park were protected as traditional and customary Native Hawaiian practices.

The state constitution says the state “shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupuaa tenants who are descendants of Native Hawaiians … subject to the right of the state to regulate such rights.”

Pratt, who said he is 75 percent Hawaiian, testified he is a kahu, a healer, and responsible for Kalalau Valley because his ancestors are buried there.

A trial court rejected Pratt’s argument. He appealed. The Intermediate Court of Appeals rejected the appeal and upheld the lower court’s ruling. The Hawaii Supreme Court agreed last year to hear the case.

The high court noted that when Native Hawaiians use their culture as a defense against criminal charges, the court needs to weigh the interests of the practitioner with those of the state’s interests in regulating the conduct.

In its 3-2 opinion, the high court found the state’s right outweighed Pratt’s rights, noting “the privilege afforded for Native Hawaiian practices, as expressed in our State constitution and statute, is not absolute.” The opinion was issued by Chief Justice Mark E. Recktenwald and associate justices Paula A. Nakayama and James E. Duffy Jr.

“The balancing of interests weighs in favor of permitting the park to regulate Pratt’s activity, his argument of privilege notwithstanding,” the opinion says.

The high court said that once a criminal defendant satisfies the three-prong test established in State v. Hanapi (1998), “there remains a balancing test before the defendant’s assertion of the native Hawaiian privilege negates any possible criminal conviction.”

The Hanapi case — in which Alapai Hanapi was convicted of trespassing for entering his neighbor’s land — established a three-prong test for criminal defendants who say they should be protected by the constitutional promise to preserve the Native Hawaiian culture. The prosecution in Pratt’s case conceded that Pratt met all three prongs — being Native Hawaiian, exercising customary and traditional rights and doing so on undeveloped state land.

In applying the “balancing test,” on one hand, the high court said the state has a right to protect the valley from overuse of a limited resource. On the other hand, Pratt has a strong interest in visiting Kalalau Valley.

But, the court said, Pratt’s actions went beyond stewardship. He testified that he established a residence there and cleared entire areas to replant them with other species. “He undertook this work without consultation with the (Department of Land and Natural Resources), and without an effort to comply with the DLNR’s permit requirements,” the opinion said. “Pratt did not show any attempts to engage in his native Hawaiian practice within the limits of state law.”

The court said it is not preventing Pratt from future visits to 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 court said.

Associate Justice Simeon R. Acoba Jr. dissented, in part, joined by Sabrina S. McKenna. Acoba contended that the Hanapi test is a better measure than the so-called “totality of circumstances” test used.

He said introducing that concept when the Hanapi test is already established “renders the Hanapi test imprecise and invites consideration of matters beyond the benchmarks.”

Pratt’s attorney, Dan Hempey, said his client will be filing a motion for reconsideration regarding the issue of lenity. Under the rule of lenity, any ambiguity is interpreted to favor the defendant.

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