A divided opinion in State v. Pratt - balancing customary native Hawaiian practices against State regulatory interests

I posted earlier this month about oral arguments in State v. Pratt, involving a native Hawaiian convicted in the District Court of the Fifth Circuit for violating restrictions on camping in closed areas of Kalalau State Park. Pratt had argued that he met the factors that one claiming a constitutionally protected native Hawaiian rights privilege must show under State v. Hanapi, 89 Hawai`i 177, 970 P.2d 485 (1998).

The state did not dispute Pratt's Hanapi claims, but instead argued that in ruling against Pratt the trial court had correctly applied a fourth test balancing the state’s interest in regulating the number of people in the park against Pratt’s constitutional interest in exercising native Hawaiian rights.

Regular Planet Kauai reader and occasional commenter, Manawai, commented that

It seems to me the court erred, as far as I can tell, in accepting that "camping" is a cultural or traditional right

Had I had time, I would have replied that the state declined to challenge and therefore waived for purposes of the appeal Pratt's claims regarding the constitutionally protected status of his actions, and instead argued that the court correctly ruled against Pratt based on the balancing test urged by the state.

Then the appellate opinion came out and, as it turns out, opinion author Judge Leonard agreed with Manawai that Pratt had indeed failed to establish that camping, clearing land, and planting crops within the Kalalau Valley constituted a recognized customary and traditional practice.

But then the decision went further and upheld the Fifth Circuit's opinion based on the balancing test. This led Judge Fujise to separately concur with the outcome while making the point that because Pratt lost on the balancing test, there was no need for the court to revisit the Hanapi factors at all.

Judge Nakamura meanwhile disagreed that the state had established a particular harm (agreeing essentially with the analysis I urged in my original post) and therefore would have overturned the Fifth Circuit' conviction of Pratt.

This badly divided outcome led attorney-blogger Ben Lowenthal to wonder in his Hawaii Legal News blog what, precisely, is the precedent here?

Only one judge--Judge Leonard--characterized the State's concession that Pratt met his Hanapi burden as a stipulation on a legal point requiring further analysis. See Beclar Corp. v. Young, 7 Haw. App. 183, 750 P.2d 934 (1988); State v. Tangalin, 66 Haw. 100, 101, 657 P.2d 1025, 1026 (1983). Judge Leonard ultimately concluded that Pratt failed to establish that his conduct was constitutionally protected (and even if he did, the balancing test applied.). The other two declined to address that issue. Judge Leonard stands alone in her Hanapi analysis.

And to Further Complicate Things . . . Judge Leonard concluded first that Pratt failed to meet his Hanapi burden and, even if he did, the district court should have and correctly balanced in the interests in favor of the State. But it would seem that if Pratt had not met his burden, then there would be no need to engage in the balancing test. Shouldn't Judge Leonard's opinion have ended without moving on to the balancing test? Does that make her balancing test analysis advisory? What does that do to Judge Fujise's concurrence, where she agrees with Judge Leonard's balancing test analysis?