State v. Armitage

Decision Date28 January 2014
Docket NumberSCWC–29795,SCWC–29796.,Nos. SCWC–29794,s. SCWC–29794
Citation319 P.3d 1044,132 Hawai'i 36
Parties STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Nelson Kuualoha ARMITAGE, Petitioner/Defendant–Appellant. (ICA No. 29794; Case No. 2P106–02017). State of Hawai‘i, Respondent/Plaintiff–Appellee, v. Russell K. Kahookele, Petitioner/Defendant–Appellant. (ICA No. 29795; Case No. 2P106–02018). State of Hawai‘i, Respondent/Plaintiff–Appellee, v. Henry Maile Noa, Petitioner/Defendant–Appellant. (ICA No. 29796; Case No. 2P106–01909).
CourtHawaii Supreme Court

Daniel G. Hempey, for petitioners.

Renee Ishikawa Delizo (on the briefs), for respondent.

ACOBA, McKENNA, and POLLACK, JJ.; with RECKTENWALD, C.J., Concurring and Dissenting, with whom NAKAYAMA, J., joins.

Opinion of the Court by ACOBA, J.

We hold that the complaints filed by the Respondent/ PlaintiffAppellee State of Hawai‘i (the State) against Petitioners/DefendantsAppellants 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)1 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)2 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)3 . 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)4 . 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)5 . 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[6 ], 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:7

1. 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[8 ], and to offer prayer on the island.
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. [ ]
11. [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

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