Strategic Nonpublication By The Court Of Appeals: Pig Hunting Is A Traditional And Customary Hawaiian Practice (In This Case)
by Robert Thomas, Inverse Condemnation, December 13, 2015
Here's a case we've been following for quite a while, waiting for the opinion to drop.
And now it has. In State v. Palama, No. CAAP-12-0000434 (Dec. 11, 2015), the Hawaii Intermediate Court of Appeals, in an unpublished memorandum opinion, upheld the trial court's dismissal of criminal trespass charges against a fellow who asserted that his unpermitted entry on private property was privileged because he was exercising his traditional and customary native Hawaiian right to hunt feral pigs.
Pig hunting in this case involved dogs and a knife, not guns. For more on this practice, see this 2013 New York Times story ("Hunting Pesky Pigs in Paradise"). For more on the background of the case and the arguments, see the opinion, this post from the KauaiEclectic blog, or the briefs of the parties and amici filed in the ICA:
Short version: Mr. Palama went pig hunting on Gay & Robinson's land, but didn't ask Gay & Robinson whether he could do so. He was charged with trespassing. He admitted hunting, but claimed that as a Hawaiian, the Hawaii Constitution recognizes his privilege to do so, because pig hunting is a traditional and customary practice that his ancestors exercised.
Recall that two decades ago, in Public Access Shoreline Hawaii v. Hawaii Cnty. Planning Comm'n, 903 P.2d 1246 (Haw. 1995), the Hawaii Supreme Court concluded that the subject to certain qualifications, the Hawaii Constitution allows Hawaiians to exercise traditional practices, even on private property, and that "[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawaii." Let that one sink in. Soon after PASH, the Supreme Court held that this right only applied on less-than-developed land. Why, the court has never really told us (the right as set out in the text doesn't distinguish between developed and undeveloped land, and as far as we can tell, neither did Hawaiian custom and practice), other than the practical implications of the rule in the absence of such a limitation were enormous. But no matter, so-called PASH rights have been a part of the conversation for nearly two decades, if more in theory than in practice.
Back to Mr Palama. He introduced evidence that he met all of the parts of the test: he is Hawaiian and a resident of the ahupuaa in which he was caught hunting, and (via expert testimony) that pig hunting is a traditional practice. By contrast, the prosecution offered no evidence to the contrary. Case dismissed, and the prosecution appealed.
The ICA affirmed, after full briefing and oral arguments. The court acknowledged this was a case of first impression because "to date, there have been no Hawaii appellate cases directly addressing whether pig hunting is a constitutionally protected traditional and customary practice." Slip op. at 15. But despite this, the ICA did not publish the memorandum opinion, and expressly noted, "our decision here is confined to the narrow circumstances and particular record in this case." Id. Unpublished decisions are not precedent, and while they may be cited, are not controlling in future cases. It is somewhat unusual to withhold a decision from publication after holding oral arguments, in our experience.
But a wise move here, in in our view. The record in this case was not developed, and the case was rightly decided simply by applying the burden of proof: Palama met his burden of production, and the prosecution didn't respond. Had the ICA published its decision, it would have settled the is-pig-hunting-a-PASH-right question, at least until such time the Hawaii Supreme Court weighed in. A published opinion might also have tempted the prosecution to seek discretionary review by the Supreme Court, and there's a pretty good chance this court would have taken the case. But this would have been a horrible vehicle to consider the issue.
To resolve it, it would be better to wait for a case where the prosecution actually introduces evidence contesting whether pig hunting is a traditional and customary practice. Here, the record was so thin that two amici (the State and the landowner) submitted briefs in the ICA (both posted above), and tried to introduce on appeal additional evidence into the record, efforts the ICA mostly rebuffed. See slip op. at 6-9.
Let's hope the prosecution sees it the same way, and doesn't submit an application for certiorari. Bad records make bad law.
Whether pig hunting is a privileged traditional and customary practice is a worthwhile issue to resolve. Just not in this case.
KGI: Court decision considered key win for Hawaiian rights
PDF: State v. Palama, No. CAAP-12-0000434 (Haw. App. Dec. 11, 2015) (mem.)