Oral Argument Before the Intermediate Court of Appeals
CAAP-12-0000434, Friday, April 17, 2015, 10:00 a.m.
STATE OF HAWAII, Plaintiff-Appellant vs. KUI PALAMA, Defendant-Appellee.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorney(s) for Plaintiff-Appellant:
Tracy Murakami and John H. Murphy, Deputy Prosecuting Attorneys
Attorney(s) for Defendant-Appellee:
Daniel G. Hempey of Hempey & Meyers
Attorney(s) for Amicus Curiae Attorney General of the State of Hawaii:
Robert T. Nakatsuji, Deputy Solicitor General
COURT: Foley, Fujise, and Ginoza, JJ.
Plaintiff-Appellant State of Hawaii (State) filed a criminal complaint against Defendant-Appellee Kui Palama (Palama) alleging charges of (1) simple trespass in violation of Hawaii Revised Statutes (HRS) § 708-815 (2014) and (2) prohibited hunting on private lands in violation of HRS § 183D-26 (2011). The Circuit Court of the Fifth Circuit (Circuit Court) dismissed the charges against Palama based on its findings and conclusions that Palama had been exercising his constitutionally protected native Hawaiian rights. The State appeals from the Circuit Court’s dismissal of the charges.
The charges are based on Palama’s conduct of entering onto private property on Kauai for the purpose of pig hunting without first obtaining permission from the landowner. Palama is alleged to have entered the property with a mule and hunting dogs, and to have killed two pigs with a knife. Palama filed a motion to dismiss the charges, which was granted by the Circuit Court. The Circuit Court determined that Palama had established that his pig hunting on the subject private property was a traditional or customary practice that deserved protection under the Hawaii Constitution. The Circuit Court also concluded that the State’s attempt to regulate Palama’s traditional right amounts to a blanket prohibition or extinguishment of his protected practice of hunting pig on the subject property.
On appeal, the State challenges numerous factual findings and legal conclusions made by the Circuit Court, including the Circuit Court’s rulings that: Palama met his burden of proving that he is a native Hawaiian; Palama’s activities are established native Hawaiian customs or traditions warranting constitutional protection; the State’s regulation of pig hunting on private property is a “blanket prohibition” of Palama’s pig hunting activity; and Palama’s pig hunting was a protected activity as long as no actual harm was done.