CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 29794; CASE NO. 2P106-02017), (ICA NO. 29795; CASE NO. 2P106-02018), (ICA NO. 29796; CASE NO. 2P106-01909).
Daniel G. Hempey, Simeon R. Acoba, Jr. for petitioners.
Renee Ishikawa Delizo (on the briefs), for respondent.
ACOBA, McKENNA, AND POLLACK, JJ.; WITH RECKTENWALD, C.J., CONCURRING AND DISSENTING, WITH WHOM NAYAKAMA, J., JOINS
We hold that the complaints filed by the Respondent/ Plaintiff-Appellee State of Hawai'i (the State) against Petitioners/Defendants-Appellants Nelson Kuualoha Armitage (Armitage), Russel Kahookele (Kahookele), and Henry Maile Noa (Noa) (collectively, Petitioners) of the offense of Entrance into the Reserve (Kaho'olawe Reserve or the Reserve), Hawai'i Administrative Rule (HAR) § 13-261-10 (2002) must be dismissed without prejudice because the charges failed to charge the requisite state of mind of intentionally, knowingly, or recklessly. See State v. Apollonio, 130 Hawai'i 353, 354, 311 P.3d 676, 677 (2013). Because of the likelihood of retrial, we discuss the questions raised in the September 16, 2013 application for writ of certiorari (Application) filed by Petitioners, and conclude (1) there was sufficient evidence adduced at trial to sustain Petitioners' conviction, (2) Petitioners did not "reasonably exercise " their constitutionally protected native Hawaiian rights, see State v. Hanapi, 89 Hawai'i 177, 184, 970 P.2d 485, 493 (1998), (3) because Petitioners were subject to penal liability pursuant to HAR § 13-261-10, they have "a claim of specific present objective harm", City & Cnty. of Honolulu v. Ariyoshi, 67 Haw. 412, 419, 689 P.2d 757, 765 (1984), and therefore have standing to challenge the constitutionality of that regulation, (4) Art. XII, section 7 of the Hawai'i Constitution does not create a separate right to nation-building, (5) Petitioners' purpose to claim and manage, control and subsequently occupy Kaho'olawe involved conduct outside the scope of any first amendment right to freedom of speech, (6) HAR §§ 13-261-10 or -11 does not abridge the constitutional right under the Hawai'i Constitution to engage in traditional and customary native Hawaiian practices, and (7) Petitioners' practice of religion was not substantially burdened by HAR §§ 13-261-10 and -11. Accordingly, we vacate the July 17, 2013 judgment of the Intermediate Court of Appeals (ICA) and the April 3, 2009 judgments of the District Court of the Second Circuit (the court) and remand the case for disposition consistent with this opinion.
This case arises from three separate complaints filed by the State against Armitage, Kahookele, and Noa, alleging that, as noted, each defendant committed the offense of Entrance into the Reserve, HAR § 13-261-10. The complaint against Armitage and the complaint against Kahookele were filed on August 22, 2006, and the complaint against Noa was filed on August 28, 2006. The complaints stated as follows:
The STATE OF HAWAI'I, through the undersigned, its Deputy Prosecuting Attorney, hereby accuses and charges the Defendant as follows:
That on or about the 31st day of July, 2006, in the Division of Wailuku, County of Maui, State of Hawaii, [the defendant] did enter or attempt to enter into, or remain within the Kaho'olawe Island Reserve without being specifically authorized to do so by the commission or its authorized representative, thereby committing the offense of Entrance Into the Reserve, in violation of Section 13-261-10 of the [HAR], Department of Land and Natural Resources.
Petitioners all pled not guilty to the offense.
On October 18, 2006, Petitioners filed a Motion to Consolidate their cases pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 13 (2006). In the Motion to Consolidate, Petitioners noted that the only difference in factual circumstances among Petitioners was that Noa was on a boat on the waters of the Kaho'olawe Reserve, while Armitage and Kahookele were on land in the Reserve. The court held a hearing on the Motion to Consolidate on October 26, 2006 and granted the Motion to Consolidate.
On January 9, 2007, Petitioners filed a Motion to Dismiss pursuant to HRPP Rule 12 (2006). In their Memorandum in Support of the Motion to Dismiss, Petitioners appeared to challenge the court's jurisdiction, offer defenses to the charge, and bring a constitutional challenge to the validity of HAR § 13-261-10. Among these arguments, Petitioners asked the court to recognize their Restored Hawaiian Government (also referred to as the Reinstated Kingdom of Hawai'i or Reinstated Nation of Hawai'i) as "the sovereign Native Hawaiian entity" pursuant to Hawai'i Revised Statutes (HRS) § 6K-9 (1993). Petitioners argued, inter alia, that the charges should be dismissed because Petitioners could prove the defense of privilege under Public Access Shoreline Hawai'i v. Hawai'i County Planning Commission ("PASH"), 79 Hawai'i 425, 903 P.2d 1246 (1995), and Hanapi, and that the regulations were unconstitutional. As an attachment to the Motion to Dismiss, Petitioners included a Declaration of Noa, which stated that he is the "democratically elected Prime Minister of the Reinstated Hawaiian Nation" and concluded as follows: "[i]n sum, the Kingdom of Hawaii/Government has reemerged with a working, sovereign government and demands the return of all Kingdom assets and the State of Hawai'i immediately return the island of Kahoolawe to the Kingdom of Hawaii/Government."
In its Memorandum in Opposition to the Motion to Dismiss, filed on July 17, 2007, the State argued, inter alia, that the court had jurisdiction, Petitioners admitted the violation, the relevant administrative rules and statutes were constitutional, and that the court was not the proper forum to recognize the Reinstated Kingdom of Hawai'i as a sovereign nation.
Petitioners filed a reply on July 26, 2007, asserting what they termed the "Lorenzo defense" based on the ICA's decision in State v. Lorenzo, 77 Hawai'i 219, 883 P.2d 641 (App. 1994), that future courts would consider evidence and arguments in support of recognition of the inherent sovereignty of native Hawaiians. Petitioners also maintained that they are citizens of a nation rather than a group and that "[t]he fact that there are other, groups' out there, or that the State is trying to create its own domestic dependent nation (as opposed to a true-sovereign nation - the type of nation for which Kahoolawe is held in trust) is not relevant to [the Lorenzo] defense."
The court held evidentiary hearings on the Motion to Dismiss. On July 27, 2007, John Gates (Gates) testified for Petitioners as an expert in the areas of self-determination of indigenous people and international law. The hearing was continued to January 25, 2008. Petitioner Noa testified on his own behalf regarding his status as "Prime Minister of the Reinstated Hawaiian Government" and about the underlying incident, which he stated was undertaken to pursue the reinstatement of the Kingdom of Hawai'i.
The next hearing took place on April 4, 2008. At the outset, the court indicated that the parties would give a brief oral summary of what they believed the evidence had shown and provided that the parties were in agreement, they would submit written arguments as well as proposed findings of fact and conclusions of law. The court would then make its decision and if necessary, advise the parties of the trial date and set a pretrial at which further issues could be addressed. Then, Petitioner Noa continued his testimony and was cross-examined by the State.
Petitioners' attorney indicated that Petitioners "would treat this hearing as if Mr. [Armitage] and Mr. Kahookele also testified, and with the exception of their position within their elected government, their testimony would mirror that of Mr. Noa." The State agreed. Petitioner's attorney also stated his clients were prepared to waive any conflict as to counsel.
The court engaged in a colloquy with Noa, Armitage and Kahookele, and all three Petitioners agreed to waive any conflict in representation. At the request of the court, each party then summarized its arguments on the record.
The parties each submitted proposed findings of fact and conclusions of law with respect to the Motion to Dismiss. On October 9, 2008, the court issued its "Findings of Fact [(findings)], Conclusion of Law [(conclusions)] and Order Denying Defendants' Motion to Dismiss." The relevant findings follow:
I. On or about July 31, 2006,  Armitage, Kahookele, and Noa traveled to Kaho'olawe as elected representatives and citizens of the Reinstated Kingdom of Hawai'i for purposes of exercising and proclaiming the Reinstated Kingdom's property rights in the Kaho'olawe Island Reserve and its adjacent waters, to build an ahu , and to offer prayer on the i sland.
8.  Armitage and Kahookele intentionally chose to ignore and disregard the written application process and made no attempt to comply with the established procedures to seek authorization to visit Kaho'olawe.
10.  Noa had knowledge that the Reserve had served as a bombing range for approximately fifty years. 
II. [Petitioners] assert that the State's "compelling interest in restricting access to Kaho'olawe is to protect citizens from dangers that may still exist on the island from military activity. [Petitioners] do not challenge this as a compelling interest - to do so would be unreasonable."
12. [Petitioners] traveled to the Reserve to claim Kaho'olawe and to manage and control the island.
14. Notwithstanding [Petitioners'] expert testimony, and even assuming the general accuracy of the expert's opinion, Defendants have failed to prove that the Reinstated Nation of Hawai'i is a sovereign native Hawaiian entity and the [c]ourt lacks authority to make such a determination.
15. To date, no sovereign native Hawaiian entity has been recognized by the United States and the State of Hawai'i; however, there are several native Hawaiian organizations, in addition to [Petitioners], seeking this recognition.
16. [Petitioners] request this court recognize the reinstated Nation of Hawai'i as the sovereign native Hawaiian entity and to "provide guidance as to exactly what need[s] to be done to achieve Hawaii's elusive promise of recognition to the re-emerged Hawaiian nation that was illegally overthrown in 1893.
17. [Petitioners] ask this [c]ourt to provide them with standards or guidelines to resolve their attempt to be recognized by the State and Federal governments as the native Hawaiian sovereign entity.
18. Upon landing on Kaho'olawe [Petitioners] undertook a traditional ceremony. "In our traditional practice, in our culture, it is well understood that when you have an event, be it a small event, or large event, you always pay respect to your ancestors, to your various Gods that our religion has or just to Akua itself.
19. The State elicited testimony that the Island of Kaho'olawe may be unsafe, due to unexploded [ordnance on the island. [Petitioners] claimed that the administrative regulations were not narrowly tailored to meet that State interest.
20. [Petitioner] Noa, and his expert each testified that Native Hawaiians traditionally and customarily managed and controlled the island of Kaho'olawe prior to 1893.
21. [Petitioners] are Native Hawaiian, within the meaning set forth in Hawai'i state law.
22 . The land on Kaho'olawe is undeveloped.
The court's conclusions of law stated, in relevant part:
1. HAR § 13-261-3 [(2002)] defines the boundary of the Reserve as "the entire island of Kaho'olawe and those waters and submerged lands seaward of the shoreline of Kaho'olawe island to a distance of approximately two miles.
4. [Petitioners] did not submit a written application to the KIRC; therefore, [Petitioners] violated § 13-261-10 by failing to obtain the requisite authorization to enter into or conduct an activity in the Reserve.
5. HAR §§ 13-261-10 or 13-261-11 [(2002) are presumptively constitutional; [Petitioners] have made no showing that either HAR §§ 13-261-10 or 13-261-11 have clear, manifest, and unmistakable constitutional defects, and they certainly have failed to prove that the rules are unconstitutional beyond a reasonable doubt. SHOPO v. Soc. of Prof. Journalists, 83 Haw. 378, 289, 927 P.2d 386, 397 (1996) .
6. Article XII, section 7 of the Hawai'i Constitution provides: The State reaffirms and protects 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. (Emphasis added.)
7. Native Hawaiians have the right to enter undeveloped lands owned by others to practice continuously exercised access and gathering rights necessary for subsistence, cultural or religious purposes, so long as no actual harm was done by the practice, and "the retention of 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." Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1 at 10, 656 P.2d 745 (1982) .
8. "It is the obligation of the person claiming the exercise of a native Hawaiian right to demonstrate that the right is protected."  Hanapi, 89 Haw[ai'i] at 184, 970 P.2d [at 492]  .
9. To establish the existence of a traditional or customary native Hawaiian practice, "there must be an adequate foundation in the record connecting the claimed right to a firmly rooted traditional or customary native Hawaiian practice." Such foundation includes any explanation of the history or origin of the claimed right, description of the ceremonies involved, or specialized knowledge through expert testimony that the claimed right is a traditional or customary native Hawaiian practice. Id. at 187 .
10. The State is only obligated to "protect the reasonable exercise of customarily and traditionally exercised right of Hawaiians to the extent feasible;" "unreasonable or non-traditional uses are not permitted." [PASH], 79 Haw.  at 450, 903 P.2d [at 1271]  .
11. The application process set forth in HAR § 13-261-11(b) follows the requirements made by the [c]ourt in Hanapi and includes a process by which an applicant to the Reserve, through consultation with cultural practitioners, can establish the existence of  traditional or customary native Hawaiian practices.
12. The Historical Note section of HAR § 13-261 states, "In recognition of the substantial amount of unexploded ordnance and hazardous materials present on the island and in the adjacent waters, institutional controls are required because of the imminent threat to public health and safety which will continue to exist until the Kaho'olawe island reserve has been cleared of unexploded ordnance and hazardous waste. (Emphasis added.)
13. The process defined in HAR § 13-261-11, does not prohibit people from accessing the Reserve to exercise native Hawaiian traditional and customary rights; rather, it enables the KIRC, who has a compelling interest to protect the health and safety of all those who access the Reserve, to determine if the exercise of those rights is feasible and whether it can be done in [a] manner that ensures the safety of the practitioners.
14. [Petitoners'] purpose to claim and manage control and subsequently occupy Kaho'olawe involved conduct outside the scope of any first amendment right to freedom of speech. State v. Jim, 105 Haw[ai'i] 319, 97 P.3d 295 (2004) [(] citing Procunier v. Martinez, 416 U.S. 396, 411-12  (1974) . [) ]
15. The government may impose reasonable restrictions on the time, place, or manner of engaging in protected speech provided that they are adequately justified without reference to the content of the regulated speech. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428 (1993) .
16. The application process set forth in HAR § 13-261-11 is clearly content-neutral, as the rule only sets time, place, or manner restrictions on the access applicants, without any burdens on speech.
17. [Petitioners] cannot argue that the procedure set forth in HAR § 13-261-11 prohibited them from exercising their First Amendment rights, if they never attempted to employ the application and approval process.
18. The procedural requirements in HAR § 13-261-11 are content-neutral, only impose time, place, and manner restrictions, and apply equally to all who wish to access the Reserve in order to ensure the health and safety of the public, and to prevent uses that are dangerous, unlawful, or impermissible under HRS [Chapter] 6K.
19. [Petitioners] did not prove their deprivation of the right to free exercise of religion, because their testimony and evidence failed to establish "that such practice is an integral part of a religious faith and the prohibition . results in a virtual inhibition of the religion or the practice of the faith."  State v. Blake, 5 Haw.App. 411, 413[, 695 P.2d 336, 338] (1982) [(quoting] People v. Mullins, 50 Cal.App. 61, 70, 123 Cal.Rptr. 201, 207 (1975) [) ] [ (emphasis in original) ] .
22. The Apology Resolution [Pub.L.No. 103-150, 107 Stat. 1510, 1510 (1993)] and related State legislation, including HRS Chapter 6K "gave rise to the State's fiduciary duty to preserve the corpus of the public land trust, specifically ceded lands, until such time as the unrelinquished claims of the native Hawaiians have been resolved." Office of Hawaiian Affairs v. HCDCH, 117 Haw. 174, 177 P.3d 884 (2008) .
23. The Apology Resolution acknowledges only that unrelinquished claims (by Native Hawaiians) exist and plainly contemplates future reconciliation with the United States and the state with regard to those claims." Id.
24. The [s]upreme [c]ourt [of the Territory of Hawai'i] in Territory v. Kapiolani Estate, refused to recognize a claim disputing the Territory's title to ceded lands, and held:
The validity of the declaration in the constitution of the Republic of Hawai'i, under which the present title is derived, does not present a judicial question. Even assuming, but in no way admitting, that the constitutional declaration was confiscatory in nature, this court has no authority to declare it invalid. The subsequent derivation of the title by the untied States is clear. The position here taken in refusing to regard the defendant's claim that title is otherwise than is fixed by constitutional law as presenting a judicial question is well illustrated in numerous decisions of the United States Supreme Court.
18 Haw. 640,  645-46 (1908) [(emphasis added)].
25. Even assuming, but in no way admitting that the constitutional declaration was confiscatory in nature, the court had no authority to declare it invalid. Id.
26. In Territory v. Puahi, the [supreme] [c]ourt [of the Territory of Hawai'i] refused to consider a challenge to the Territory's title stating, "[-A] judicial question is not presented by a claim requiring a ruling that Art. 95 of the constitution of the Republic of Hawai'i is unconstitutional." 18 Haw. 649, 651 (1908).
27. Congress stated that nothing in the Apology Resolution would "serve as a settlement of claims against the United States." (Apology Resolution, section 3 [at 1514]).
28. The Senate Report accompanying the Apology Resolution explains that its enactment "will not result in any changes in existing law." S.Rep.No. 103-26, at 35, Ex. M. (1993).
29. While the United States expressed its deep regret to the Native Hawaiian people for the federal government's participation in the overthrow of the Kingdom of Hawai'i, and pledged to support recogniliation efforts, the Apology resolution did not create any substantive rights. See also[, ] Rice v. Cayetano, 941 F.Supp. 1529, ...